RKC Partner's Op-Ed on Wage and Hour Posted in Tallahassee Democrat
Florida leads the nation in the number of wage-and-hour lawsuits filed against employers. The increasing prevalence of such suits, paired with today’s harsh economic climate, makes it imperative that employers understand and abide by the state’s wage-and-hour laws.
In a May 12, 2008 Tallahassee Democrat op-ed, Rumberger, Kirk & Caldwell Partner Linda Bond described Florida’s increasing wage-and-hour litigation, and advised employers how to ensure that they stay on the right side of the law.
To read Linda’s op-ed, click here (link to http://www.tallahassee.com/apps/pbcs.dll/article?AID=2008805120304) or simply scroll down the page.
May 12, 2008
Employers must be aware of wage laws
With more than 2,400 wage-and-hour lawsuits filed in the Middle and Southern United States district courts in 2007, Florida leads the nation.
That number is only expected to climb as wage-and-hour collective (class) action suits become increasingly common. Yet, despite the increase in legal action, countless employers across the state fail to take proactive steps to prevent and defend themselves in these suits.
The key to preventing and limiting a company's liability is implementing — and abiding by — relatively simple employment practices.
Hourly employees who do not receive overtime pay:
Minimizing a company's liability begins with adopting and complying with a policy and a practice of paying nonexempt (hourly) employees time and one-half for all hours worked over a 40-hour workweek as required by the Fair Labor Standards Act (FLSA).
Employers cannot force employees to work off-the-clock, during lunch or at home or advise them to otherwise misrepresent their working time. Turning a blind eye to employees working during such times or claiming ignorance increases liability.
The trickiest part of complying with the FLSA may be making a determination of what constitutes "work." As simple as the term may sound, the courts have found that "donning and doffing," that is putting on and taking off specialized clothing and uniforms, may constitute work, or driving to the job site may constitute work. Employers must carefully examine beginning and ending activities.
Employees improperly classified as salaried:
Some employees attach a special status to being "salaried." Employers tempted to oblige such an employee may give the employee a special job title or job status and fail to pay the employee for overtime. Employers can rightfully pay a salary to exempt employees (those not entitled to overtime) based on their primary duties, but not their job title or special status.
Recently, a jury found that 28 Farm Stores managers were hourly employees subject to overtime, and not salaried employees, leaving the employer to pay back pay for hours worked. Typically, administrative, executive and professional employees who meet regulatory definitions can be classified as exempt. Employers are required by law to provide overtime pay to virtually anyone else, regardless of whether they are salaried.
Most wage-and-hour lawsuits are brought against employers by individuals or groups working low-wage jobs in the service industry. In 2004, the Department of Labor targeted hotels, restaurants, child-care centers, health care and agricultural-related industries. For lawyers, however, no industry is immune.
In one recent case, Braun v. Wal-Mart, hourly workers claiming they were not paid for off-the-clock work or for work during breaks brought a class-action suit against Wal-Mart in Pennsylvania. In October 2007, roughly a year after a jury awarded the employees more than $78 million, a court awarded them an additional $187.6 million. It was the largest civil judgment in 2007 for any class-action suit in state court.
The Wal-Mart case illustrates that no company, large or small, is immune to the legal fallout that can result from its failure to abide by wage-and-hour laws. The only way for an employer to stay on the right side of the law is to implement and enforce payment guidelines in accordance with state and federal standards.