Oil & Gas: Long, long days deserve fair pay, including overtime calculated the lawful way.

Earlier this year, the U.S. Department of Labor reported that it is finding “unacceptably high numbers of [wage and hour] violations in the oil and gas industry,” and “pattern of industry employers failing to pay workers legally required overtime.”[1] Common violations include: the mistaken classification of salaried employees as exempt;[2] not properly calculating employees’ regular rates for the purposes of determining overtime, such as failing to include certain bonuses; failing to pay for time spent working off-the-clock; and paying flat daily/shift rates without regard to how many hours the employees worked.[3] Even employees that earn more than $100,000 per year are often incorrectly classified as exempt, because the employer fails to satisfy all elements of the exemption.[4]

In addition to employees that work directly for oil & gas companies; workers in related businesses may also be underpaid, such as water and stone haulers, trucking, lodging, staffing companies and other types of oil and gas supporting trades.

If you work for an oil and gas company, or if you work in an industry related to the oil and gas business; and if you work more than 40 hours a week, then call us for a free consultation to determine whether you are being paid properly. Remember, even if you receive “overtime” compensation, the amount of overtime paid may not be properly calculated by your employer or by the staffing agency.

Also remember that wage and hour claims are typically subject to a two year statute of limitations. This is sometimes extended to three years, but only under certain circumstances. This means that as time goes by, historical weeks of earned wages are barred from recovery by the statute of limitations.

Call us today at 800-274-5297.

(Advertising Material: This Notice is for informational purposes and should not be construed as legal advice).

[1] Oil, gas industry workers in 9 states owed more than $1.6M in back wages ongoing Labor Department enforcement initiative finds

[2] See also To Be or Not to Be . . . exempt. I’m salaried, so I shouldn’t get overtime, right? Sorry, that is wrong.

[3] Oil, gas industry workers in 9 states owed more than $1.6M in back wages ongoing Labor Department enforcement initiative finds; and US Department of Labor finds oil and gas industry workers in New Mexico, west Texas underpaid by more than $1.3M

[4] Fact Sheet #17H: Highly-Compensated Workers and the Part 541-Exemptions Under the Fair Labor Standards Act (FLSA)

DOJ Reverses its Position on Class Waiver.

The National Labor Relations Act (“NLRA”) was enacted in 1935 to “to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices.”[1] The Federal Arbitration Act (“FAA”) was enacted in 1925 to encourage private dispute resolution through arbitration.[2] Whether two federal statutes can live in harmony or conflict is often a thing of heated legal debate.

Currently before the Supreme Court of the United States (“SCOTUS”) are three consolidated cases that may put to rest a circuit split, deciding whether arbitration agreements that prohibit employees from joining other employees to pursue worked-related claims, including claims for unpaid minimum wages or unpaid overtime, violate the NLRA.[3] In a rare position reversal, the U.S. Department of Justice filed an amicus brief in which it now supports class waiver by arbitration agreements.

While not among the consolidated cases before the SCOTUS, the Sixth Circuit recently supported workers’ rights, holding that the NLRA does not conflict with the FAA, and since the NLRA creates a substantive, nonwaivable right to engage in concerted activity, arbitration agreements that prohibit concerted activities in any forum are unenforceable.[4] It is important to note that the Sixth Circuit does not say that an arbitration agreement cannot require collective or class claims to be brought in arbitration. Rather, the Sixth Circuit says that an arbitration agreement cannot prohibit an employee from pursuing collective claims, class claims or any other concerted activity in all forums. It is an arbitration agreement’s prohibition against concerted activity that violates the NLRA, not the arbitration agreement’s requirement to arbitrate.

Of course, disagreement on this issue is what the SCOTUS will decide. While the DOL’s shift certainly does not bode well for workers, we are hopeful that the legal arguments presented by the Sixth, Seventh and Ninth Circuits prevail. The power balance between workers and historically more powerful employers is facilitated by workers’ rights to join their individually insignificant damages and resources into collectives.

If you feel that you are not being properly paid wages you’ve earned, and if you think you have no recourse because you signed an arbitration agreement; you should call us for a free consultation. You may have a viable claim in court or in arbitration, and we can help you determine the best course of action after thorough consideration of your situation.

We can be reached at 800-274-5927.

[1] https://www.nlrb.gov/resources/national-labor-relations-act

[2] http://www.legisworks.org/congress/68/publaw-401.pdf

[3] https://www.law360.com/employment/articles/935889/doj-reverses-obama-era-stance-in-class-waiver-suit?nl_pk=535043a8-09cf-4835-9108-d6d87bae778c&utm_source=newsletter&utm_medium=email&utm_campaign=employment

[4] See 6th Cir. Opinion at Nat’l Labor Relations Bd. v. Alternative Entm’t, Inc., No. 16-1385(6th Cir. May 26, 2017)

(Advertising Material:  This Notice is for informational purposes and should not be construed as legal advice).

Department of Labor withdraws 2015 and 2016 informal guidance concerning joint employment and independent contractors.

Whether a worker is classified as an “employee” versus an “independent contractor” has significant ramifications. Indeed, according to the Department of Labor, “[t]he misclassification of employees as independent contractors presents one of the most serious problems facing affected workers, employers and the entire economy.”[1] There are many protections for employees that simply are not available to independent contractors. For example, when an employer misclassifies a worker as an independent contractor rather than an employee, the worker may be denied critical benefits and protections including compensation of at least the minimum wage for all hours worked and/or compensation of at least one and one-half the worker’s regular rate for hours worked in excess of 40 hours per week. Other benefits denied to misclassified workers include FMLA benefits, unemployment benefits, workplace safety benefits, and many others.

Additionally, there are many burdens and savings that employers experience whether a worker is classified as an “employee” versus an “independent contractor.” Not only does misclassification harm workers, but it harms employers that play by the rules because those employers that act unlawfully in this regard enjoy a competitive advantage over the law abiding employers.

Another question is whether an individual is an “employee” is the question of who is the “employer.” Sometimes a potential employer evades lawful obligations by creating sham contractor relationships in order to save labor costs. In such situations, as with others, there arises the question of whether one company is the “employer” or if multiple companies are “employers” under the law; often referred to as “joint employers.”

In an effort to ensure the remedial purposes of the Fair Labor Standards Act are met, the Department of Labor, from time to time, issues regulations, interpretive bulletins or opinion letters intended to clarify or frame questions including whether a worker should be classified as an “employee” versus an “independent contractor” or whether one or more companies are “joint employers” under the law. Such efforts are necessary because many workers have no choice but to agree to a mandated classification of “independent contractor.” Guidance by the Department of Labor does not limit the ability of a sophisticated self-employed entrepreneur from choosing his or her own classification. It hurts those who have but two choices: (1) accept the misclassification; or (2) find other work. These two choices are often no choice at all, especially if the worker lives in an economically depressed region where jobs are hard to come by.

Unfortunately, last week the Department of Labor announced that it is withdrawing its 2015 and 2016 informal guidance concerning joint employment and independent contractors.[2] Because employers typically have more power than the employees, the now withdrawn guidance will further increase the power imbalance against workers.

If you feel that you have been misclassified, call us at 800-274-5297 to schedule a free consultation with on of our attorneys.

[1] https://www.dol.gov/whd/workers/misclassification/#resources

[2] https://www.dol.gov/newsroom/releases/opa/opa20170607

(Advertising Material:  This Notice is for informational purposes and should not be construed as legal advice).

TAKE ACTION: Protect Workers Compensation for Undocumented Workers

The Ohio House recently passed, and the Ohio Senate is now considering legislation that would deny workers compensation benefits to undocumented workers who are seriously injured on the job.  The bill would also limit undocumented workers access to the courts for injuries suffered on the job. This bill is bad for all Ohio workers, and will work against those employers who comply with the law. If this bill passes, it will reduce the incentive for companies to provide safe conditions for its workers—and serious injuries among Ohio workers in the most dangerous industries will increase.

Talk with an Experienced Lawyer Today

Fill out the form below to get started.