Wage and Hour

Wages and Witholdings

The Florida minimum wage provisions may be enforced by the bringing of a civil suit by an aggrieved person or by the Attorney General. Prior to bringing suit, however, an aggrieved person must provide the employer with written notice of intent to initiate such an action. The notice must identify the minimum wage to which the person aggrieved claims entitlement, the actual or estimated work dates and hours for which payment is sought, and the total amount of alleged unpaid wages through the date of the notice. The employer has 15 calendar days after receipt of the notice to pay the total amount of unpaid wages or otherwise resolve the claim to the satisfaction of the person aggrieved.

Wages unpaid by a current or former employer may include sales commissions, hourly pay, salary, bonuses, disability benefits, severance pay, stock options, and royalties. The first step towards reclaiming these lost wages is demanding the wages form the employer and notifying them of your intent to initiate litigation. In some cases, the claimant may be entitled to attorneys fees, costs and liquidated damages.

Fair Labor Standards Act:

The Fair Standards Labor Act requires, among other things, that employers provide employees with compensation for minimum wage and overtime for hours worked greater than 40 hours in a given week. This may sound simple, but it poses significant challenges for employers who look to limit payroll costs and overhead. Furthermore, cutting corners possess significant penalties on the employer for failure to comply with the law.

Salaried Employees:

The statutory requirements of meeting an exemption under FLSA are difficult and the burden on the employer is high. The most widely utilized exemption is the Administrative exemption typically thought of as a management exemption. This characterization is misleading where as many of today’s managers are still statutorily entitled to overtime. Please contact an attorney for a free consultation on whether or not you are exempt from overtime requirements under the law.

Contractor Misclassification:

An independent contractors generally has the following characteristics: (a) charges fees for services, (b) is hired for a term specifically identified to carry out a task or project, (c) pays employment taxes directly to the government, and (d) is not protected by most of the employment laws designed to protect worker’s rights.

If you feel that you may have been misclassified, then please contact an attorney immediately. Misclassification takes a way many of the protections and rights employees enjoy including the availability of overtime and minimum wage protections, unemployment compensation and worker’s compensation.

The employer will then be responsible for back wages and overtime pay, tax and insurance obligations, employment law compliance, and employee benefits. Many protected employee rights requirements are well protected by state and federal law and provide your worker with attorney’s fees to enforce these protections. This can drastically escalate the cost of misclassification.

Common unlawful overtime practices:

• Donning and Doffing

  Donning and doffing (time spent putting on and taking off protective gear) has been a major source of litigation. Unfortunately, federal courts have not adopted a uniform standard for determining which donning and doffing activities are compensable. As a result, the outcome of these claims frequently depends on the jurisdiction and the specific facts. Several federal jurisdictions have used different tests to decide the donning and doffing cases before them.

• Travel Between Job Sites

  The Department of Labor (DOL) applies a continuous workday rule to define a compensable workday. The workday is generally defined as “the period between the commencement and completion on the same workday of an employee’s principal activity or activities … and includes all time within that period whether or not the employee engages in work throughout all of that period” (29 C.F.R. § 790.6(b) ).For employees whose normal place of business changes daily, time spent commuting between home and the first and last worksites of each day is not compensable under the FLSA. This issue often arises in home dispatch programs where employees are dispatched from home to their first worksite of the day. The commute time to the first worksite is not compensable where the travel is a contemplated, normal occurrence for the position, even in instances where a particular commute time is longer than the employee’s typical commute time (Chambers v. Sears Roebuck & Co. No. 10-20360, 2011 WL 2392359 (5th Cir. June 15, 2011) ).

• Lunch Breaks

  Where the employee does not get time for a break, remains engaged in work or is forced to remain available for engagement during his or her lunch break.

• Waiting/On-Call Time

  The compensability of waiting or on-call time depends on whether the nonexempt employee is “engaged to wait” or “waiting to be engaged.” Regulations have clarified that on-call time is not compensable unless “the employee is unable to use the time effectively for his own purposes” (29 C.F.R. § 785.15 ).