The FLSA, codified at 29 U.S.C. §201 et seq., was enacted in 1938 in order to help the “lowest paid … of the nation’s working population” to secure a livable wage. Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707 n. 18 (1945). Current FLSA law allows an employee to maintain an action against the employer “in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. §216(b).

The purpose of the provision authorizing an employee to sue in behalf of “other employees similarly situated,” which has come to be known as the “Collective Action Provision,” is to minimize litigation by allowing numerous claims to be brought against the same employer in one lawsuit. This benefits both sides. It benefits employees by making it easier for them to hire lawyers to handle their claims. In most FLSA claims, the amount in dispute is relatively small. Collective Action cases raise the stakes, making FLSA cases more enticing to lawyers. This is a practical reality, one that courts recognize as legitimate. CA cases benefit employers by allowing numerous claims to be resolved in one action instead of in individual lawsuits.

A recent U.S. Supreme Court decision appears to put Collective Action claims at risk.

In Genesis Healthcare Corporation v. Symczyk, 133 S. Ct. 1523 (2013), Symczyk sued under the FLSA for herself and other co-workers. The District Court for the Eastern District of Pennsylvania dismissed Symczyk’s complaint for lack of subject matter jurisdiction after defendants Genesis Healthcare Corporation and Elder Care Resources Corporation extended an offer of judgment under Fed.R.Civ.P. 68 in full satisfaction of her alleged damages, fees, and costs. The trial court decision was appealed. The United States Court of Appeals, Third Circuit, framed the issue as follows: “At issue in this case is whether a collective action brought under § 216(b) of the FLSA becomes moot when, prior to moving for ‘”conditional certification”‘ and prior to any other plaintiff opting in to the suit, the putative representative receives a Rule 68 offer.” The court answered No, reversing the trial court’s ruling. Symczyk v. Genesis HealthCare Corp., 656 F. 3d 189 (3rd Cir. 2011).In essence, the Court of Appeals decided that removing or “picking off” the lead plaintiff from the FLSA case did not moot the action.

Because of a split of authority on this issue, the U.S. Supreme Court elected to review Symczyk.

In a 5-4 decision, the Court ruled for the employer. In its view, if a plaintiff’s claim is mooted, the entire lawsuit simultaneously becomes moot. Not surprisingly, the majority consisted of Chief Justice John G. Roberts and Justices Scalia, Kennedy, Alito, and Thomas. (Biographies of current Justices.)

All in all, being able to short circuit active lawsuits to prevent the claims of similarly situated individuals from being brought probably harms employees more than it does employers. Most employees do not know their rights and others sit on them for lack of initiative. Lawyers are not allowed to solicit clients to advise them of their rights or motivate them to proceed. Accordingly, without an active lawsuit to join, their claims are less likely to be prosecuted. Knowing this, employers prefer to nip CA claims in the bud.

Had plaintiff Symczyk objected to then proved that the Rule 68 offer did not fully compensate her, the action would have been allowed to proceed. Once the trial court had certified that the other employees were similarly situated, the action could not be shut down by a subsequent offer to the lead plaintiff.

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Contact us toll free at 866-785-GALE or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

“Chinese Overtime” is allowed under the Fair Labor Standards Act (FLSA). See Overnight Motor Transp. Co. v. Missel, 316 U.S. 572 (1942) and 29 C.F.R. Section 778.114 (2010). It only comes into play for employees paid in accordance with the fluctuating workweek method.

Fluctuating workweek pay is a salary as opposed to being paid by the hour. It is a set weekly sum regardless of hours worked, no matter more or less than 40. Overtime pay is available.

The FLSA provides that employees paid on an hourly basis must be compensated at the rate of one and one-half their regular rate of pay for each hour over 40 worked in a week. For example, an employee paid $10/hr, which is the “regular rate of pay,” must be paid $15 for each overtime hour.

In contrast, employees paid by the fluctuating workweek method receive only 1/2 their regular rate of pay for overtime hours.Determining the rate of pay under the fluctuating workweek is done by dividing the salary by the number of hours worked. Hence, the rate of pay will fluctuate based on the number of hours worked. For example, the rate of pay for an employee with a weekly salary of $400 who has worked 35 hours is $11.43 ($400 divided by 35). The rate of pay for that same employee who has worked 55 hours is $7.27.

The overtime rate for this week of work is $3.63 (1/2 of $7.27). The overtime rate will vary depending on the number of overtime hours worked. The more hours worked, the lower will be the regular rate of pay and the overtime rate.

In order to compensate an employee under the fluctuating workweek, an employer must meet the following five criteria:

1. The employee’s hours must fluctuate from week to week;
2. The employee must receive a fixed salary that does not vary with the number of hours worked during the week (excluding overtime premiums);
3. The fixed amount must be sufficient to provide compensation every week at a regular rate that is at least equal to the minimum wage;
4. The employee must receive at least 50% of his regular hourly pay for all overtime worked; and
5. The employer and employee must share a clear mutual understanding that the employer will pay that fixed salary regardless of the number of hours worked.

Each of these criteria provides opportunities to overcome “Chinese Overtime” and thus require overtime to be calculated in accordance with the X-1/2 method. FLSA cases are fact intensive.

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We invite you to contact us toll-free at 866-785-GALE or by email to obtain a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

During these challenging economic times, our law firm is seeing a sharp reduction in the number of hours employees are being paid to work. Fewer employees are working overtime and many are seeing their hours reduced below the traditional 40 per week.

There are no state or federal laws mandating minimum work hours for Florida employees. The only obligation Florida employers have to those who work less than 40 hours a week is to pay the state minimum wage – $7.31/hr as of June 1, 2011.

Although employees do not have the right to be employed for a minimum number of hours, they do have the right to be compensated for all on duty time. This may seem like a straightforward proposition, but it is an issue that has given rise to a significant amount of litigation going back to the 1940s.

What we are seeing today is that employees are not being paid while waiting to work versus working. Whether this is proper is a question of fact involving “scrutiny and construction of the agreements between the particular parties, appraisal of their practical construction of the working agreement by conduct, consideration of the nature of the service, and its relation to the waiting time, and all of the surrounding circumstances. Facts may show that the employee was engaged to wait, or they may show that he waited to be engaged.” Skidmore v. Swift Co., 323 U.S. 134, 137 (1944). Importantly, there is no principle of law found either in statute or Court decisions precluding waiting time from also being working time deserving of compensation. Armour & Co. v. Wantock et al., 323 U.S. 126 (1944).In general, the answer depends on the degree to which the employee has the right to engage in personal matters while subject to call from the employer.

In Skidmore, employees were required to remain on company property after their regular work hours to respond to fire alarms. They were allowed to eat and sleep in comfortable accomodations provided by the employer, and only rarely did they have occasion to respond to fire alarms. They sought overtime wages. They won in the U.S. Supreme Court, where it was decided that being at the ready through the employer’s insistence was the equivalent of being on duty. The employees were not free to leave the premises to attend to entirely personal matters.

We have a case in the office where our client, responsible for loading and unloading planes at Miami International Airport, was required by his employer to be at the airport from 2 pm to 10 pm six days a week, but was only paid for the actual time spent loading and unloading airplanes, an average of 4 hours a day. We believe that he is entitled to be paid for 48 hours, including time-and-a-half for 8 overtime hours, rather than the 24 hours paid by the employer.

In addition to Skidmore and Armour and their progeny, we are relying on Federal Regulations Title 29 Sections 785.14-785.16.

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

Contact us toll free at 866-785-GALE or by email to learn your rights.

The Fair Labor Standards Act (FLSA) is full of twists and turns. Here are just a few of them:

On the Clock: With the everyday use of cellular phones, computers, emails, and text messaging, employers can find themselves facing claims for FLSA overtime wage claims for heretofore unexpected reasons. Employees performing work activities such as responding to emails, text messages and telephone may be considered “on the clock” for purposes of the FLSA.

If enough employees are involved, the consequences can be devestating to the employer. ABC News recognized the threat when it stripped all of its writers of company-issued BlackBerrys. Employees of publicly traded real-estate company CB Richard Ellis are pursuing a collective claim for OT wages for required after-hours use of their BlackBerrys.

The FLSA is clear that non-exempt employees are entitled to compensation at 1.5 times the hourly rate for all time over 40 worked in a week. Two exceptions:

De Minimis Time: Not all time non-exempt employees work over 40 in a week is compensable at 1.5 times the normal rate. The exception is for de minimis time.

The Department of Labor describes this time as being a few seconds or minutes duration beyond the scheduled time. The various appellate courts do not hold a uniform view, keeping the door open to litigation. The US Court of Appeals, Federal Circuit, in Carlsen v. United States, 521 F.3d 1371 (Fed. Cir. 2008), suggested that 10 minutes was the cutoff. The Ninth Circuit Court of Appeals rejected the idea of time alone being the determining factor for whether an activity is de minimis. In Lindow v. United States, 738 F.2d 1057 (9th Cir. 1984), it established three considerations: “(1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work.” Id. at 1063.Rounding: Another exception to the FLSA’s 40-hour rule. It is outlined in 29 C.F.R. 785.48(b) as follows:

(b) “Rounding” practices. It has been found that in some industries, particularly where time clocks are used, there has been the practice for many years of recording the employees’ starting time and stopping time to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour. Presumably, this arrangement averages out so that the employees are fully compensated for all the time they actually work. For enforcement purposes this practice of computing working time will be accepted, provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.

Courts will accept this standard as long as it works out equally to both sides in the long run. Rounding after seven minutes has been rejected by most courts.

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Contact our law firm toll-free at 866-785-GALE or by email to learn your rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

Many court battles have and will continue to be fought over these exemptions. One that is difficult for Claimants to beat is the so-called “Companionship services” exemption, derived from The Code of Federal Regulations, Title 29, Section 552.6. The section provides as follows:

As used in section 13(a)(15) of the Act, the term companionship services shall mean those services which provide fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services. They may also include the performance of general household work: Provided, however, That such work is incidental, i.e., does not exceed 20 percent of the total weekly hours worked. The term “companionship services” does not include services relating to the care and protection of the aged or infirm which require and are performed by trained personnel, such as a registered or practical nurse. While such trained personnel do not qualify as companions, this fact does not remove them from the category of covered domestic service employees when employed in or about a private household.

According to a United States Department of Labor opinion letter issued on March 17, 2005, the exemption can apply to CNAs, LPNs, and RNs. (In addition, registered nurses may qualify for the minimum wage and overtime pay exemption contained in section 13(a)(1) of FLSA for bona fide professional employees, if all pertinent tests (including payment on a salary basis) discussed in Regulations, 29 CFR 541.300 are met.)

The apparent way to get around the exemption is to prove that the performance of general household work exceeds 20 percent of the total weekly hours worked. In my experience, this is easier said than done. I have spent long hours interviewing potential clients to determine if the facts of their cases put them within the exception to the exemption. Unfortunately, in only a small fraction of the cases have I concluded that the exception applied.

The purpose of the “Companionship services” exemption is to make needed care affordable to the elderly and infirm. The policy is taken seriously, so it will take a clear set of facts for the exception to the exemption to apply. Even though the the spirit of the FLSA is to protect employees, a close call under this exemption will likely go against the employee.

Further reference: Long Island Care at Home, Ltd. v. Coke, 127 S. Ct. 2339 (2007). (The United States Supreme Court upheld the “Companionship services” exemption.)

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Contact us toll-free at 866-785-GALE or by email to learn your rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

The Fair Labor Standards Act (FLSA) requires employers to pay employees overtime pay, at a rate of time and a half, for all hours worked in excess of 40 hours per week. See Section 207 of the Act.

To calculate the amount of compensation an employee is owed under the FLSA, the overtime rate (OT rate) must be determined.

The first step in this equation is establishing the “regular rate of pay,” the hourly rate. If the employee has not received employer-furnished fringe benefits, such as health insurance and housing, the “regular rate of pay” is the hourly rate, and the OT rate is 1/2 of the hourly rate. For example, if the “regular rate of pay” is $10.00/hour, the overtime rate is $5.00.

Where fringe benefits have been provided, their value must be included in the calculation. In the case of health insurance, the fringe benefit value determination is relatively simple to make, with the employer’s share of the premium payment being the actual “value” of the fringe benefit. Where the employer is not making an easily identifiable payment, such as in the case of self-administered medical programs provided by some big emloyers, or where housing is provided by the employer, determining the value of the benefit is not as simple. Not infrequently, the parties will fight over the value of fringe benefits. (Caveat: the employer may try to argue that the fringe-benefit is a form of payment for overtime wages, rather than a benefit which increases the “regular rate of pay.” Paycheck stubs and tax records, among other evidence, must be considered to resolve this dispute.)

Where fringe benefits are part of the calculation, determining the OT Rate is a 3-step process:

Step 1 – Regular Weekly Pay: Hourly rate of pay times (x) hours worked per week plus (+) value of fringe benefit(s). (Example: $10/hr x 62 hours + $50 (weekly insurance premium.))

Step 2 – Regular Rate of Pay: Regular Pay divided (/) by hours per week.

Step 3 – OT Rate: Equals 1/2 of Regular Rate of Pay.

Compensation due under the FLSA is determined by multiplying the OT Rate by the employee’s number of accrued overtime hours. The FLSA statute of limitation is 2 or 3 years depending on whether the employer’s failure to pay overtime wages was by purposeful design or through simple oversight or ignorance.

The FLSA also contains a liquidated damages provision for double damages.

Hypothetical Case: Employee worked an average of 62 hours a week during the 3-year period immediately preceding his case being filed in court, with an hourly rate of pay of $10.00. The employer also paid the equivalent of $50 per week for health insurance.

• OT Hours: 3432 (156 weeks (3 years) x 22 (OT hours/wk))
• Regular Weekly Pay: $670 (Hourly pay x total hours + fringe benefit)
• Regular Rate of Pay: $10.80 (Regular Weekly Pay divided by hours per week)
• OT Rate: $5.40 (1/2 of Regular Rate of Pay)
• OT Owed: $18,532.80 (OT Rate x OT Hours)
• Liquidated Damages: $18,532.80
• Total Owed: $37,065.60

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Contact us toll-free at 866-785-GALE or by email to learn your rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

Members of our firm speak English, Spanish, and Creole.