Jan 25, 2022 | Overtime & Wages
Overtime Work & Premium Pay – Overtime Pay Provisions Of The Fair Labor Standards Act (“FLSA”)
An employer who requires or permits an employee to work overtime is generally required to pay the employee premium pay for such overtime work.
FLSA Overtime Requirements
Unless specifically exempted, employees covered by the FLSA must receive overtime pay for hours worked in excess of 40 in a workweek at a rate not less than time and one-half their regular rates of pay.
There is no limit in the FLSA on the number of hours employees aged 16 and older may work in any workweek.
The FLSA does not require overtime pay for work on Saturdays, Sundays, holidays, or regular days of rest.
The FLSA applies on a workweek basis. An employee’s workweek is a fixed and regularly recurring period of 168 hours — seven consecutive 24-hour periods. It does not need to coincide with the calendar week, but may begin on any day and at any hour of the day. Different workweeks may be established for different employees or groups of employees. Averaging of hours over two or more weeks is not permitted. Usually, overtime pay earned in a particular workweek must be paid on the regular pay day for the pay period in which the wages were earned.
The regular rate of pay cannot be less than the minimum wage . The regular rate includes all remuneration for employment except certain payments excluded by the FLSA itself.
Payments which are not part of the regular rate include pay for expenses incurred on the employer’s behalf, premium payments for overtime work or the true premiums paid for work on Saturdays, Sundays, and holidays, discretionary bonuses, gifts and payments in the nature of gifts on special occasions, and payments for occasional periods when no work is performed due to vacation, holidays or illness.
Earnings may be determined on a piece-rate, salary, commission, or some other basis, but in all such cases the overtime pay due must be computed on the basis of the average hourly rate derived from such earnings – calculated by dividing the total pay for employment (except for the statutory exclusions noted above) in any workweek by the total number of hours actually worked.
Where an employee in a single workweek works at two or more different types of work for which different straight-time rates have been established, the regular rate for that week is the weighted average of such rates, i.e., the earnings from all such rates are added together and this total is then divided by the total number of hours worked at all jobs. Additionally, section 7(g)(2) of the FLSA allows, under specified conditions, the computation of overtime pay based on one and one-half times the hourly rate in effect when the overtime work is performed.
Where non-cash payments are made to employees in the form of goods or facilities, the reasonable cost to the employer or fair value of such goods or facilities must be included in the regular rate.
Examples Of Some Common Overtime Problems
Fixed Sum for Varying Amounts of Overtime: A lump sum paid for work performed during overtime hours without regard to the number of overtime hours worked does not qualify as an overtime premium even though the amount of money paid is equal to or greater than the sum owed on a per-hour basis.
For example, no part of a flat sum of $180 to employees who work overtime on Sunday will qualify as an overtime premium, even though the employees’ straight-time rate is $12.00 an hour and the employees always work less than 10 hours on Sunday. Similarly, where an agreement provides for 6 hours pay at $13.00 an hour regardless of the time actually spent for work on a job performed during overtime hours, the entire $78.00 must be included in determining the employees’ regular rate.
Salary for Workweek Exceeding 40 Hours: A fixed salary for a regular workweek longer than 40 hours does not discharge FLSA statutory obligations.
For example, an employee may be hired to work a 45 hour workweek for a weekly salary of $405. In this instance the regular rate is obtained by dividing the $405 straight-time salary by 45 hours, resulting in a regular rate of $9.00. The employee is then due additional overtime computed by multiplying the 5 overtime hours by one-half the regular rate of pay ($4.50 x 5 = $22.50).
Overtime Pay May Not Be Waived: The overtime requirement may not be waived by agreement between the employer and employees.
For example, an agreement that only 8 hours a day or only 40 hours a week will be counted as working time also fails the test of FLSA compliance. An announcement by the employer that no overtime work will be permitted, or that overtime work will not be paid for unless authorized in advance, also will not impair the employee’s right to compensation for compensable overtime hours that are worked.
Source: U.S. Department of Labor (Fact Sheet #23, Revised October 2019)
Victims Of Employer Wage & Hour Violations
Employees who believe they have been harmed by employer wage and hour violations are encouraged to contact Kehoe Law Firm, P.C. by completing the form above on the right or via [email protected] for a free, no-obligation evaluation of potential legal claims.
Jan 24, 2022 | Consumer Protection
Conditional Validity Of Product Warranties For Gillette, Venus, Braun & Oral-B Products At Issue In Class Action Lawsuit
On January 21, 2022, a class action complaint was filed against The Procter & Gamble Company and The Gillette Company LLC (“P&G,” “Gillette,” or “Defendants”) for the manufacture, marketing, and sale of consumer products sold under brand names that include Gillette, Venus, Braun, and Oral-B.
According to the class action complaint, the lawsuit was brought against the Defendants for the marketing, manufacture and/or sale of consumer products, the warranties of which include statements that condition the continued validity of the warranty on the use of only an authorized repair service and/or authorized replacement parts (i.e., a “tying arrangement”).
Tying arrangements that condition a consumer product’s warranty on the use of a specific repair service in this manner violate state and federal law, according to the complaint. The Defendants, allegedly, exacerbate these violations by stating on the outside of the product packaging that the consumer products include a one-year limited warranty, but the unlawful repair restriction is not revealed to the consumer until after the point of sale. Moreover, the Plaintiffs and other class members would not have purchased a particular product, or would have paid much less, if the unlawful repair restriction was known.
The complaint alleges that the Defendants condition warranty coverage on unlawful repair restrictions, and in numerous instances, the Defendants, via their warranty statements for various appliances, condition warranty coverage on the use of the Defendants’ repair services to perform maintenance and repair work, rather than allowing consumers to repair the product themselves or take it to a third-party repair service.
By conditioning their warranty in this manner, the Defendants, according to the complaint, have violated the tying prohibition in the Magnuson-Moss Warranty Act, which prohibits companies from conditioning their warranties on the consumer’s use of any article or service (other than an article or service provided without charge under the terms of the warranty) identified by brand, trade, or corporate name.
If you purchased Gillette, Venus, Braun, and Oral-B products in the United States with a warranty provision that prohibits self-repair and/or the use of unauthorized parts, you are encouraged to contact Kehoe Law Firm, P.C. by completing the form above on the right or via [email protected] for a free evaluation of potential legal claims.
Jan 24, 2022 | Overtime & Wages
Minimum Wage & Overtime Pay For Employees In California
Although there are some exceptions, almost all employees in California must be paid the minimum wage as required by state law. Presently, the employee minimum wage applicable to employers in California with 25 or less employees is $14.00 per hour. The employee minimum wage applicable to employers in California with 26 or more employees is $15.00 per hour.
California’s schedule for new state minimum wage increases can be accessed by clicking here.
An employee CANNOT agree to work for less than the minimum wage. The minimum wage is an obligation of the employer and CANNOT BE WAIVED by agreement, including collective bargaining agreements.
In California, the general overtime provisions are that a nonexempt employee 18 years of age or older, or any minor employee 16 or 17 years of age who is not required by law to attend school and is not otherwise prohibited by law from engaging in the subject work, shall not be employed more than eight hours in any workday or more than 40 hours in any workweek unless he or she receives one and one-half times his or her regular rate of pay for all hours worked over eight hours in any workday and over 40 hours in the workweek or double time.
Eight hours of labor constitutes a day’s work, and employment beyond eight hours in any workday or more than six days in any workweek requires the employee to be compensated for the overtime at not less than:
One and one-half times the employee’s regular rate of pay for all hours worked in excess of eight hours up to and including 12 hours in any workday, and for the first eight hours worked on the seventh consecutive day of work in a workweek; and
Double the employee’s regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek.
In California, there are a number of exemptions from the overtime law. There are also a number of exceptions to the general overtime law. An “exemption” means that the overtime law does not apply to a particular classification of employees, and an “exception” means that overtime is paid to a certain classification of employees on a basis that differs from that stated above.
Minimum Wage Exceptions
There are some employees who are exempt from the minimum wage law, such as outside salespersons, individuals who are the parent, spouse, or child of the employer, and apprentices regularly indentured under the State Division of Apprenticeship Standards.
There also is an exception for learners, and there are exceptions for employees who are mentally or physically disabled, or both, and for nonprofit organizations, such as sheltered workshops or rehabilitation facilities that employ disabled workers.
Differences Between State, Local & Federal Minimum Wage
Most employers in California are subject to both the federal and state minimum wage laws. Also, local entities (cities and counties) are allowed to enact minimum wage rates and several cities have recently adopted ordinances which establish a higher minimum wage rate for employees working within their local jurisdiction.
When there are conflicting requirements in the laws, an employer must follow the stricter standard; that is, the one that is the most beneficial to the employee. Thus, since California’s current law requires a higher minimum wage rate than does the federal law, all employers in California who are subject to both laws must pay the state minimum wage rate unless their employees are exempt under California law. Similarly, if a local entity (city or county) has adopted a higher minimum wage, employees must be paid the local wage where it is higher than the state or federal minimum wage rates.
Source: California Department of Industrial Relations, Labor Commissioner’s Office, Minimum Wage & Overtime (Accessed 1/20/22); U.S. Department of Labor, State Minimum Wage Laws (Accessed 1/24/2022).
Employees Who Have Been Victims Of Employer Wage & Hour Violations
Workers who believe they are victims of employer wage and hour violations are encouraged to contact Kehoe Law Firm, P.C. by completing the form above on the right or via [email protected] to request a free, no-obligation evaluation of potential legal claims.
Jan 22, 2022 | Overtime & Wages
A proposed Fair Labor Standards Act collective action complaint has been filed against Defendants Same Day Delivery Inc., Scott Weinstein, and Bene Ewerton in United States District Court, Southern District of New York.
According to the complaint, filed on January 20, 2022, the Same Day Delivery Defendants failed to pay their delivery drivers legally required wages under the Fair Labor Standards Act (“FLSA”) and New York State Labor Law (“NYLL”), including overtime.
The Defendants, according to the complaint, maintained an illegal policy and practice of appropriating the tipped wages of the company’s delivery drivers.
The lawsuit seeks recovery against the Defendants for alleged violations of the FLSA, 29 U.S.C. §§ 201 et seq., and violations of Articles 6 and 19 of the NYLL and supporting New York State Department of Labor regulations.
Additionally, the lawsuit seeks injunctive and declaratory relief and to recover unpaid minimum wages, overtime wages, unpaid spread-of-hours, unlawfully deducted wages, liquidated and statutory damages, pre- and post-judgment interest, and attorneys’ fees and costs pursuant to the FLSA, NYLL, and the NYLL’s Wage Theft Prevention Act.
Delivery Drivers And Supervisors Of Same Day Delivery Who Believe They Have Been Harmed By Wage And Hour Violations
If you believe you have been the victim of wage and hour violations while employed by Same Day Delivery, please complete the form above on the right or e-mail [email protected] to request a no-obligation evaluation of potential legal claims.
Jan 21, 2022 | Whistleblower
On January 21, 2022, the Securities and Exchange Commission (“SEC”) announced three awards totaling more than $40 million to four whistleblowers who provided information and assistance in three separate covered actions.
In the first order, the SEC issued an award of approximately $37 million to two joint whistleblowers who provided key evidence that contributed to the success of the covered action. The whistleblowers also provided ongoing assistance and helped SEC staff identify additional information that advanced the investigation.
In the second order, the SEC issued approximately $1.8 million to a whistleblower who provided important, new information that prompted SEC staff to open an investigation into the misconduct. The whistleblower continued to assist SEC staff by providing interviews and additional documents.
In the third order, the SEC awarded approximately $1.5 million to a whistleblower who provided new information that shaped the SEC staff’s investigative strategy and significantly contributed to the success of the covered action. The whistleblower also provided substantial and ongoing assistance by helping SEC staff identify issues.
The SEC has awarded approximately $1.2 billion to 245 individuals since issuing its first award in 2012.
All payments are made out of an investor protection fund established by Congress that is financed entirely through monetary sanctions paid to the SEC by securities law violators. No money has been taken or withheld from harmed investors to pay whistleblower awards.
As set forth in the Dodd-Frank Act, the SEC protects the confidentiality of whistleblowers and does not disclose any information that could reveal a whistleblower’s identity.
Source: SEC.gov
Questions Or Concerns About Voluntarily Providing Information To The SEC And Whistleblower Award Eligibility?
If you have questions or concerns about voluntarily providing information to the SEC regarding violations of the federal securities laws, including questions about whistleblower award eligibility, or the form and manner in which the information is required to be provided to the SEC, please contact Kehoe Law Firm, P.C. by completing the form above on the right, sending an e-mail to [email protected] or by contacting either Michael Yarnoff, Esq., [email protected], (215) 792-6676, Ext. 804, or John Kehoe, Esq., [email protected], (215) 792-6676, Ext. 801.
