What is Wage Theft?

What is Wage Theft?

Wage Theft is when an employer neglects to pay their employees for all of their time at a fair price. One of the most common instances of wage theft is when an employer pays an employee less than the minimum wage required in that specific area. Additionally, other common forms of wage theft include employees who have their tips stolen, receive pay “under the table” or off the books, employees not paid fair overtime pay, and employees who are forced to work off the clock for any amount of time. These are just a few of the most common examples of wage theft committed in the United States, but any form of shorting an employee’s pay is considered wage theft and is therefore illegal.

If you suspect that your employer is stealing your wages, then you are entitled to compensation, and the unpaid wage attorneys at Barkan Meizlish are here to help you get it. Contact us today for your free consultation and be on your way to recovering your stolen wages.

Wage Theft Statistics

Wage theft is a major problem in the United States and especially in the state of Ohio. It is so common that it has likely happened to you at some point in your life and is nearly guaranteed to have happened to at least one person you know. Approximately $50 billion in wages are stolen by U.S. employers nationwide every year. That number is enough to provide 1.2 million people with employment and pay them $20 per hour. In comparison, the combined robberies, motor vehicle thefts, larcenies, and burglaries added up to less than $14 billion in 2012.  States, along with the Federal Department of Labor, recovered approximately $933 million in stolen wages that same year, less than 2 percent of what was taken from hard-working employees. These statistics show just how damaging wage theft is to the average American household’s quality of life, the economy of Ohio, and the national economy as a whole.

Thankfully, people are fighting the war against wage theft. While we are still a long way from completely eradicating the problem, some states have taken significant action to address the issue and recover those wages that have been stolen from their residents. New York has the strongest anti-wage theft laws in the country and has even passed a Wage Theft Prevention Act to closely monitor employees’ pay through mandatory reporting on behalf of the employer.

State attorney generals in 45 states have recovered $14 million in stolen wages. In addition, private attorneys like those at Barkan Meizlish have recovered $467 million in class-action lawsuits, while the U.S. Department of Labor has recovered $280 million. Unfortunately, this hasn’t even put a dent in the estimated $50 billion stolen from hard-working employees annually, which is why we here at Barkan Meizlish are still fighting hard to prevent wage theft across the state of Ohio.

Ohio Wage Theft

The state of Ohio has ranked second in the nation when it comes to workers reporting wages lower than the minimum wage. Wage theft is a huge problem in Ohio and has detrimental effects on the lives of our friends and neighbors. Not only does wage theft reduce the quality of life of those affected, but it has detrimental effects on our state’s economy. When an employer steals from their employees, they steal from everyone in the state because millions of dollars are unaccounted for, meaning there is less money to allocate for infrastructure, education, and governmental assistance. If you or somebody you know has experienced wage theft in Ohio, you need to contact an experienced wage theft lawyer like those found at Barkan Meizlish.

Columbus Wage Theft Lawyer

Wage theft hurts the national economy as well as the economy of the state of Ohio. Our home was founded by hard-working pioneers, and so we find it truly ironic that so many of the employers in the state are stealing from their employees regularly. You have a duty as a resident of Ohio to report unfair theft of wages in order to uphold a higher standard of living for yourself and your fellow Americans. Here at Barkan Meizlish, we work with employees to help them recover the wages that they have worked for. Contact us today for your free consultation with a professional wage theft lawyer in Ohio and be on your way to recovering what is rightfully yours.

Call Center Industry and Wage and Hour Violations

Call Center Employees Affected by Wage Theft

In today’s age of technology and convenience, customer service is often only a phone call or instant message away. With an increasing consumer demand for faster support and quicker turnaround times, it seems that more industries than ever have turned to call centers as a means to provide streamlined service to their customers. Call center employees are essential service providers for customers in need of guidance. Sadly, mistreatment is common.

Unfortunately for Customer Service Representatives (“CSRs”), call centers are one of the most common places for companies to commit wage violations, These violations can be accidental or intentional, depending on the centers management. Under the Fair Labor Standards Act (“FLSA”), covered nonexempt employees are entitled to receive minimum wage for all hours worked, and overtime compensation at one and one-half times their regular rate of pay for all hours worked in excess of 40 in a workweek.

Today, numerous call centers across a variety of business channels call central Ohio home, including Teleperformance, Call Management Resources, ContactUS Communications, and Total Quality Logistics all operate facilities in the Columbus area. Nationwide, Verizon, DISH, JPMorgan Chase, and Randstad also operate centers in the surrounding vicinity.

FLSA Violations and Call Centers

When centers expect their employees to perform unpaid “off-the-clock” work, problems arise. This type of work is a direct violation of the FLSA. Call center employees must receive paid for time spent performing everyday duties. These duties include:

  • turning on/off computers
  • logging in to programs
  • making pre- or post-call notes
  • attending work-related meetings
  • working through lunch
  • participating in work-related training

If you work in a call center and are not being properly paid wages you have earned, an attorney can help. You can call for a free consultation at 800-274-5927. You may have a viable claim and we can help you determine the best course of action. The team at Barkan Meizlish, LLP is here to help.

 

originally published on March 13th, 2018

Pizza Chain Owes

A pizza restaurant chain in Manchester, Connecticut was held liable for violating the Fair Labor Standards Act (FLSA). An investigation conducted by the U.S. Department of Labor’s Wage and Hour Division found that the pizza restaurant chain had violated the FLSA’s minimum wage, overtime, and record-keeping requirements between February 2013 and November 2015. The restaurant did not pay one-and-one-half their regular rates of pay to three employees who worked overtime hours up to seventy-five hours per week. Additionally, the restaurant took payroll deductions for cash register shortages that resulted in one employee receiving less than minimum wage. The investigation also found that the restaurant maintained and supplied false time and payroll records and statements to investigators during the current investigation and a prior investigation in 2015.

Additionally, the investigation found that between December 2015 and April 2016, the owner of the restaurant continually pressured one employee to make false statements to investigators, leading the employee to believe he had no choice but to resign. The Department of Labor charged that the owner’s behavior resulted in the worker’s constructive discharge, in violation of the FLSA’s anti-retaliation provisions.

Therefore, on November 16, 2017, a United States District Court in Connecticut issued a judgment against Chemro LLC d/b/a People’s Choice, and Defendant Robert Y. Mercier II for back pay in the amount of $67,151.14, which includes minimum wage and overtime payments due, as well as liquidated damages, compensatory damages, punitive damages, civil money penalties, and interest. The Court also ordered that the company and its owner comply with the FLSA and “refrain from discharging or discriminating against employees who initiate or cooperate with an FLSA investigation.”

The FLSA requires that most employees receive one-and-one-half times their regular rate of pay when they work more than 40 hours in a work week and that employers maintain adequate and accurate records of employees’ wages and work hours. If you feel that you are not being properly paid wages you have earned, you should call our unpaid wages lawyer for a free consultation. You may have a viable claim 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.

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

Baklava Not Creative?

A Brooklyn federal judge has ruled that baklava chefs’ jobs were not “creative” to meet the Fair Labor Standards Act’s creative professional exemption from overtime pay. The judge held that this exemption requires “innovation and imagination,” not the “consistency and precision” displayed by the Turkish baklava and baked goods chefs when making their tasty treats.

In a decision denying summary judgment to the defendants, the court held that the exemption defense failed because “although defendants adequately demonstrate that plaintiffs were experienced and talented [chefs], defendants [did] not demonstrate how plaintiffs’ experience and talent were applied to an innovative and imaginative task.”
The defendants, Gulluoglu, an entity that sells Turkish food at multiple locations, and its manager, failed to shoulder their burden of proving that its employees fell within the exemption. According to the court, “[d]efendants did not sell their baklava and other baked goods in five-star or gourmet establishments, and plaintiffs, tasked with preparing baklava and other enumerated Turkish baked goods to be sold by third parties, did not have the autonomy to design unique dishes and menu items.”

The plaintiffs, both former baked goods chefs for Gulluoglu, frequently worked 60 hour weeks, but were only paid a fixed weekly salary of $700. Although the plaintiffs’ skills and training were brought up in court, such as a plaintiff serving as an apprentice to a baklava maker in Turkey for seven years, deposition testimony showed that the baklava chef never prepared baklava from scratch. Rather, plaintiff would heat and apply a “sweet syrup” to frozen baklava imported from Turkey. Starting in 2010, however, the baklava was imported pre-cooked, with the syrup glaze already applied. Additionally, the pastry chef’s cakes were not made from scratch, but imported and defrosted.

Defendants argued that “plaintiffs’ talent alone should trigger the exemption.” Yet, the court held that “[t]he regulatory language makes clear that an employee talented at an unimaginative and unoriginal task does not fall within the exemption.”

If you feel that you are not being properly paid wages, you should call our unpaid wages lawyer for a free consultation.

The lawsuit was filed in the U.S. District Court for the Eastern District of New York, and is titled Eren v. Gulluoglu LLC, Case No. 15-CV-4083.

Virtual Workers and Economic Reality: Independent business owners file FLSA collective action for unpaid wages

Call center service provider Great Virtual Works is facing a collective action complaint for violations of the FLSA (Fair Labor Standards Act) and minimum wage/overtime laws of Kentucky and Pennsylvania. The case alleges that Great Virtual Works misclassified its “independent business owners” as independent contractors, rather than employees.

Great Virtual Works is a corporation headquartered in Fort Lauderdale, Florida that provides telephone-based customer service, sales service and technical support to customers of client companies such as Great Healthworks, makers of the dietary supplement Omega XL. The collective claims brought under the FLSA here allegedly apply to similarly situated individuals in other states in a00ddition to Kentucky and Pennsylvania.

The two plaintiffs claim that Great Virtual Works misclassified them in an attempt to avoid paying employees all the hours they spent actually working for the company.  According to the plaintiffs, Great VirtualWorks’ so-called “business owners” are actually individual employees working from their homes, performing hourly-paid work duties such as telephone-based customer service, sales service, and technical support for Great VirtualWorks’ client companies.

The plaintiffs argue that they and other similarly situated individuals were not business owners or independent contractors as labeled by Great VirtualWorks because they did not make significant investments in equipment or materials, exercise any specific skills, or make a significant profit or loss from their work. The plaintiffs state that Great VirtualWorks has at all times of plaintiffs’ employment been in control of their work schedules and activities, relying on them and similarly situated employees to perform an integral part of its business of providing telephone-based customer service, sales service and technical support to other companies.

Specifically, the plaintiffs allege Great VirtualWorks failed to pay them for work performed before, during, and after their shifts, including:

  • connecting to the company from their own homes or places of work, opening computer applications for the company’s telephone-based customer service, sales service and technical support (5-20 minutes);
  • having brief rest breaks (the FLSA says 5-minute to 20-minute breaks must be counted as hours worked);
  • troubleshooting activities when disconnected from the company’s network;
  • shutting down computers and applications at the end of a shift;
  • reviewing emails and completing notes when not engaged in calls but clocked in;
  • completing required online training; and
  • attending mandatory meetings or coaching sessions.

As a result of this unpaid work, the compensation plaintiffs actually received averaged less than the federal minimum wage, as well as the Kentucky and Pennsylvania minimum wage.  Additionally, plaintiffs allege that they did not receive proper overtime compensation at a rate of time-and-a-half of their regular rates of pay. The plaintiffs are now seeking unpaid minimum, overtime, and contractually-owed wages, liquidated damages, attorneys fees and costs, and other remedies they may be entitled to under federal or state law.

The lawsuit is currently stayed pending an an upcoming ruling by the United States Supreme Court on a legal issue relevant to the employees’ claims, which is whether Great Virtual Works can require employees to submit their claims to individual arbitration. The amended collective class action complaint is recorded in Kentucky as Case No. 0:17-cv-00063-HRW. The plaintiffs are represented by the law firms of Barkan Meizlish Handelman Goodin DeRose Wentz, LLP and JTB Law Group, LLC.

If you have questions or information to provide, you may contact the following attorneys:

Trent Taylor; ttaylor@barkanmeizlish.com; (800) 274-5297

Robi Baishnab; rbaishnab@barkanmeizlish.com; (800) 274-5297

Nicholas Conlon; nicholasconlon@jtblawgroup.com; (877) 561-0000

Wage and Hour Violations in the Oil and Gas Industry

The Fair Labor Standards Act (“FLSA”) was designed to protect workers from employers who may otherwise take advantage of their employees. Generally, the FLSA requires employers to pay an overtime premium to non-exempt employees of one and a half times the employee’s regular rate of pay for all hours worked in excess of 40 within a workweek and to also pay at least the minimum wage for all hours worked.  In the rapidly growing oil and gas industry, however, wage and hour violations have become more common as companies seek ways to lower their labor costs. For example:

1. Day Rate Pay Without Overtime

One common type of violation occurs when an employee receives a “day rate” payment without overtime. A “day rate” method of payment is a flat sum for a day’s work without regard to the number of hours worked in the day. Simply paying employees a day rate does not, however, negate the FLSA’s requirement that non-exempt employees receive overtime at a rate of 1.5 times the regular rate for all hours worked over 40. To comply with the FLSA, employers who use this method of compensation must therefore pay non-exempt employees a premium overtime rate. There is often plenty of room for error in calculating an employee’s overtime on a day rate of pay, as this rate can fluctuate depending on the amount of hours worked.

2. Independent Contractor Misclassification

Additionally, some employers try to avoid their obligations under the FLSA by classifying workers as independent contractors, rather than employees. Independent contractors are not subject to the many of the FLSA’s protections, including overtime, so employers often “misclassify” workers to eliminate certain tax obligations or other costs otherwise owed to employees.

This technique is fairly common in the oil and gas industry, where much of the day-to-day work on oil rigs and gas wells is sub-contracted out to other companies. But it is the actual employment relationship—not the label—that controls whether an individual is an employee or an independent contractor for the purposes of the FLSA. For example, one of the various tests applied by courts in making this determination (“economic reality test”) takes into consideration 6 different factors: (1) the permanency of the relationship; (2) the degree of skill required; (3) whether the worker contributes services that are an integral part of the business; (4) the employer’s control over the worker; (5) the worker’s opportunity for profit or loss; and (6) the worker’s investment in materials and equipment.

Defining employee status can be complex and it all depends on the circumstances surrounding the employment relationship as a whole. Additionally, misclassification can expose employers to serious liability—including payment of back wages, liquidated damages, and attorney’ fees—when violations are found.

FLSA Test For Meal Break Compensation Clarified

An often difficult issue for employers is whether meal breaks for non-exempt employees under the Fair Labor Standards Act (“FLSA”) count as compensable hours worked. Generally, the FLSA regulations state meal breaks do not count as hours worked when an employee is “completely relieved from duty for the purposes of eating regular meals.” 29 C.F.R. § 785.19. Further, an employee must generally be given 30 minutes or more and must be completely relieved of his or her duties for a period to qualify as a bona fide unpaid meal break.

However, issues arise when an employer puts various restrictions on non-exempt employees during unpaid meal breaks. For example, if an employer prohibits an employee during an unpaid meal break from leaving the employer’s premises without prior authorization, or if an employee must remain on call during a meal break to perform work at any moment, an employer could find itself in violation of the regulations and be required to pay compensable hours worked.

Recently, the Third Circuit, which covers the jurisdictions of Delaware, New Jersey, Pennsylvania, and the Virgin Islands, clarified the test to be used to determine whether restrictions placed on employees during meal periods make the periods compensable hours worked, regardless of whether the employee actually performed any work during the meal period. In the case of Babcock v. Butler County, correction officers alleged the Prison’s policy for meal breaks constituted an FLSA violation and resulted in unpaid overtime compensation. The officers claimed certain restrictions were placed on them during meal breaks; for example, not being able to leave the prison without prior authorization, and being required to remain in uniform and be on call and in close proximity to emergency response equipment in the event of an emergency. The Prison filed a motion to dismiss alleging the meal periods were not hours worked because the “predominate benefit” of the meal period was received by the officers.

On appeal, the Third Circuit agreed with the Prison’s assertion and affirmed the dismissal. The “predominate benefit” test was adopted, which asks whether the employee is primarily engaged in work-related duties during the meal period. Therefore, the Third Circuit expressly rejected the more restrictive “relieved from all duties” test. In arriving at their conclusion, the Third Circuit acknowledged the “predominate benefits” test is a “fact-intensive inquiry” that assesses the “totality of the circumstances to determine, on a case-by-case basis, to whom the benefit of the meal period inures.” Based on the facts, the Court found despite the restrictions, the officers received the predominate benefit of the unpaid meal break. The Court also looked at the parties’ collective bargaining agreement, noting that the officers were required to be paid the entire meal break period if it was “interrupted” by work. Therefore, the Court found the agreement’s protections on overtime compensation supported the overall conclusion.

Employers and employees within the Third Circuit, as well as in other Circuits, should take note of the recent decision. Specifically, attention to following is required:

1. Restrictions on non-exempt employees during meal break periods do not necessarily make the meal break time compensable hours worked for FLSA purposes.
2. Under the “predominate benefit” test, the analysis is whether the restrictions are so significant and expansive that the employer predominately benefits from the meal time, not the employee.
3. Employers should treat meal breaks as compensable hours worked if the employee is interrupted by work duties at any point during the meal break.
4. If an employer wants meal breaks for non-exempt employees to remain unpaid, the employer should institute clear policies and procedures to educate employees to (1) not perform any work during a meal break unless expressly instructed by management, and (2) to report any interrupted meal breaks immediately so compensation may be received.

Due to the significant liability concerns that meal break issues present to employers, employers would be wise to ensure they have adequate and lawful meal break policies in place.

Source: Adam Long, When Must Meal Breaks Be Paid? Third Circuit Clarifies FLSA Test (December 2, 2015), See more at: http://www.jdsupra.com/legalnews/when-must-meal-breaks-be-paid-third-39704/.

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

Unpaid Internship Programs

The Fair Labor Standards Act (“FLSA”) sets forth the general requirement that all employers pay employees minimum wage and overtime pay. Under a narrow exception to this rule, an unpaid internship can comply with the FLSA if the student intern qualifies as a “trainee.” In other words, employers don’t need to compensate students who qualify for this unpaid category. To determine whether an individual is a “trainee,” the Department of Labor considers these six factors:
1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion, its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
Although more than half of college students today have participated in unpaid internship programs, these programs tend to violate the FLSA when employers use internships as a way to complete work tasks and not educational experiences for the student. Bottom line-the more an unpaid internship resembles an educational program for the benefit of the intern, the more likely it is to qualify under the FLSA’s narrow exception.
Source: Susan Miner Parrott, Are You Paying Your Summer Intern Correctly? (May 28, 2015),http://www.jdsupra.com/legalnews/are-you-paying-your-summer-intern-33073/.
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Working Off the Clock

Working Off the Clock

The Fair Labor Standards Act (“FLSA”) was effectively a law beginning in 1938. It was the first big success for workers of the industrious country of America and effectively implemented many of the same working standards that are still in place today. Aside from prohibiting the almost incomprehensible child labor that was common at the time, the FLSA also implemented the first mandatory minimum wage and time and a half pay requirements for any employee who goes over a 40-hour workweek. Another key point of the FLSA is that employers must pay their employees for every hour of time worked – in other words, it prohibits employees from working off the clock.

Can I Work Off the Clock?

It can be easy to forget to clock in before starting menial tasks when you get to work but you should try to avoid it at all costs – your time and work are valuable and you need to be fairly compensated for everything you do at work. The same thing goes for the end of the day tasks, once you clock out it is important that you do not do any more work. If your employer asks you to do extra work before or after your shift simply explain that you need to clock in before doing any work. If they give you a hard time or try to pursue disciplinary actions make sure you keep a paper trail and contact us immediately. We here at Barkan Meizlish, LLP have been practicing worker’s compensation and labor law since 1957 and are here to fight for the compensation that you deserve.

 

For obvious reasons, working off the clock may be praised by your employer and supervisors but you really aren’t doing them any favors. By staying late or working early without being clocked in you put your company at risk of violating FLSA standards. Even if you admit to willingly working off of the clock the company you work for can still be required to pay fines and compensate you for the time worked. To avoid getting your supervisor or employer in trouble for an FLSA violation you should avoid working off the clock at all costs.

Can My Employees Work Off of the Clock?

If you are a business owner and employer then you need to take extra steps in ensuring that none of your employees are working off of the clock. This can lead to legal action being taken against you in the future. To prevent this all together you need to let your employees and supervisors understand that no hourly employee is to ever work off of the clock. You might have employees that tell you they don’t mind performing a simple task without being paid, but you should never trust their word no matter how trustworthy of an employee they are. By allowing employees to work off of the clock you open yourself to receiving lawsuits from current and past employees. If you are a business owner and want to avoid paying your employees overtime then you should explore salary-based pay which protects you from any off-clock work complaints from employees.

 

In order to best protect you and your company from being required to pay large amounts of back pay, you need to implement a strict work process where your managers closely monitor employees’ work times, lunch, and break times. By closely monitoring the work process you can ensure your employers get the most amount of work done without having to pay overtime wages. If overtime is required then you have to pay it to prevent any unpaid wage complaints in the future.

Labor Law Attorney Columbus

Here at Barkan Meizlish we have been protecting worker’s rights since 1957 and have become one of the most trusted firms when it comes to worker’s compensation and wage issues. If your employer has been requiring you to work off the clock then you are entitled to compensation for every single hour worked. If you don’t take action to recover your missed wages promptly then you might not be able to recover them at all. In order to get the compensation that you deserve you need to contact Barkan Meizlish, LLP today so you don’t miss out on your opportunity to recover your missed wages.

On-Call Employees

Under the Fair Labor Standards Act (“FLSA”), employees must be compensated for actual work performed, whether on or off the job site.  But with the many technology advancements in the workplace, employers can now effectively run their businesses around the clock by keeping employees “on-call” after regular business hours, requiring them to work only if needed.  Hospital employees, for instance, have to remain in the hospital premises when on-call.  Other employees may be able to leave work when on-call, but are still subject to restrictions.  For example, on-call firefighters are often not required to remain at the station, but they may have only a 30 minute time frame to respond to a call.  Under the FLSA, on-call employees may be eligible for compensation—but only under certain circumstances.  Thus, employers have struggled with determining when to pay employees for working on-call.  Here are the relevant principles to keep in mind:

Under the general test set forth in Skidmore v. Swift & Co., 323 U.S. 134 (1944), an employee that is “engaged to wait” is entitled to compensation, but an employee “waiting to be engaged” is not.  The regulations interpreting the FLSA provide some insight, requiring compensation for on-call time when (1) employees are required to stay on the premises, or (2) when employees must remain so close that they cannot use their time away from the premises for their own purposes.

It’s easy to see how this is a confusing area of wage and hour law.  Realistically, it is difficult to apply a simple 2-part test to the countless job positions in today’s workforce.  These cases are very fact-specific and are typically decided on a case-by-case basis.  Courts have relied on various factors in determining whether on-call time is considered work time.  These factors include: whether the employee had actually engaged in personal activities during the on-call time; the flexibility of trading on-call responsibilities with another employee; agreements between the parties that provide some amount of compensation for waiting time; the frequency of calls; and whether the fixed time limit for response was unduly restrictive.

Source:  Joseph U. Leonoro, On-Call Time – When Is It Compensable? (July 13, 2012), http://www.sjlaboremploymentblog.com/when-is-on-call-time-compensable/.
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