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Wage and Hour Disputes and Class Action Claims
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Wage and Hour Disputes and Class Action Claims Wage and Hour Disputes and Class Action Claims Presentation Transcript

  • WAGE AND HOUR DISPUTES AND CLASS ACTION CLAIMS W. Mark Gavre Tuesday, May 6, 2014 The Little America Hotel 26th ANNUAL EMPLOYMENT LAW SEMINAR parsonsbehle.com4813-8465-0266
  • 2  Unpaid overtime, unrecorded worktime, minimum wage, meal break time  DOL: Two years back pay for everyone affected  Private lawsuit: Three years back pay, amount automatically doubled, plus attorney fees and litigation costs  Class actions where common facts predominate Wage & Hour Claims Are Dangerous!
  • 3  Incorrectly classifying non-exempt as exempt  Incorrectly classifying employees as independent contractors or consultants  Off-the-clock work  Deducting for meal breaks improperly  Not recording hours worked  Not paying minimum wage—see state law  Retaliation against complainers Areas of Risk
  • 4  Multiple employees and former employees in one lawsuit—small amounts become big  Strict employer liability—no knowledge or bad intent needed for a violation  No defense to a violation—strict liability  Personal liability possible  Lawyers’ fees, expert fees and litigation costs recoverable  State laws can be more generous Costly Class Actions
  • 5  Examples of recent 2014 settlements attached  Recent wage & hour DOL victories attached Class Actions
  • 6  Utah labor Commission agreement with DOL—attached  DOL seeking $800,000+ in Utah -attached DOL Activity in Utah
  • 7  Federal minimum wage: $7.25  21 States now have higher minimum wages—and are going higher – CA $8.00 now; $10.00 in 2016 (OT after 8 hours) – San Francisco $10.74 now – LA considering $15.37  WA $9.32; $15.00 likely in stages • Seattle airport $15.00 now Minimum Wage
  • 8 – CT $8.70 now; $10.10 by 2017 – OR $9.10 – VT $8.73 – CO $8.00 – MT $7.90 – Santa Fe, NM $10.66  2014 new increases in minimum wage – HI $10.10 by 2018 (in steps) – MD $10.10 by 2018 Minimum Wage (cont.)
  • 9 – MN $9.50 by 2016; indexed to inflation in 2018 – DE $8.25 by 2015 – W. Va. $8.75 by 2016 – Washington, D.C.: $8.25 now; $11.50 in 2016 and indexed to inflation Minimum Wage (cont.)
  • 10  $7.25 with health benefits  $8.25 without health benefits (“living wage”)  Overtime after 8 hours if paid less than $10.875 with health benefits  Overtime after 8 hours if paid less than $12.375 without health benefits  Overtime after 40 hours if paid more Nevada Minimum Wage and OT
  • 11  2/12/14 Pres. Obama issued executive order raising minimum wage for contractors and subcontractors on federal projects to $10.10  Effective 1/1/15; applies to new or renewed contracts  Starting 1/1/16 to be raised annually to reflect inflation New Minimum Wage for Federal Government contractors
  • 12  3/13/14 Pres. Obama directed DOL to consider revisions to FLSA regulations to give more employees OT benefits  FLSA substance in the regs, not statute, and can be changed by DOL (1949, 2004)  Most exemptions from OT require only $455 weekly salary or $23,600 annually  Raise to $700, $1,000 or more?  Other changes possible Planned Revisions to FLSA Exemptions from Overtime
  • 13  Since 2008 upsurge in college students working as unpaid interns to get experience and job opportunities  Class action lawsuits for interns as employees entitled to minimum wage and overtime Unpaid Interns
  • 14  Intern experience should be educational, similar to college training  Internship for benefit of intern  Intern cannot displace regular employee  No immediate advantage to employer  Intern not entitled to job subsequently  Both intern and employer agree in advance that it is unpaid position DOL Unpaid Intern Requirements
  • 15  If worker is incorrectly classified as a consultant or independent contractor: – Employer liable for required withholdings for state and federal income tax, Social Security, Medicare, unemployment insurance— retroactive – Matching FICA contributions to be made – Unpaid minimum wage and OT risks – May lose “exclusive remedy” protection of workers compensation law Independent Contractor Risks
  • 16  Does employer have the right to control how the work is performed?  Does employer merely contract for the result, but leaves the “how” up to the consultant?  Is the consultant in business for herself? – Have a business license? – Business card or website? – Potential for profit or loss? Employee vs. Independent Contractor
  • 17 – Free to do same work for others? – Full-time or part-time work? – Long-term working relationship? – Use her own equipment or tools? Independent contractor? (cont.)
  • 18  Administrative and executive exemptions  Must be paid a “salary,” not a wage: – fixed amount per month, etc. regardless of quality or quantity of work performed  Case-by-case analysis based on actual work performed, not job description  Must be office, non-manual work directly related to management or general business operations White Collar Exemptions From Overtime
  • 19  Primary duty requires exercise of: – Discretion and independent judgment – On matters of significance: • Compares and evaluates possible courses of action and makes/recommends decision after possibilities considered • Authority to formulate/implement policies free from immediate supervision • Can commit employer in significant matters • Can deviate from regular policies or procedures • More than use of skill in applying standards White Collar Exemptions (cont.)
  • 20  Employer must provide “a reasonable break” for nursing mothers to express breast milk as needed  Applies only to non-exempt employees  Covers first year after birth of child  A space, other than bathroom, shielded from view and free from intrusion  Employers with less than 50 employees exempt if imposes “undue hardship” Break Time for Nursing Mothers
  • 21 Thank You  W. Mark Gavre direct: 801.536.6834 email: mgavre@parsonsbehle.com