Owed Unpaid Wages?

Information for workers owed unpaid wages.

Uncategorized

Judge Grants Class Certification to Walmart Workers

California law provides a number of protections above and beyond the protections that are afforded to employees under the federal Fair Labor Standards Act (FLSA).  For example, California law requires that employees be provided with a meal and two rest breaks when they work an eight-hour shift. Additionally, if they work over 8 hours in a day, daily overtime premiums kick in. There are also requirements that the employer provide an employee with very detailed paystubs that must contain specific information.

On January 9, 2018, a federal judge in California certified a class of current and former employees of the big-box retail giant Walmart, who alleged violations of the FLSA and the California Labor Code. Three classes were certified, which range in size from 52,000 employees to nearly 76,000 employees. Most courts – including courts in the Ninth Circuit – follow a two-step approach to collective action certification.

Where Walmart Went Wrong

At the first stage, courts do not evaluate the merits of the Plaintiff’s legal claims but instead focus solely on whether the members of the proposed class are similarly situated to each other. According to U.S. District Judge Lucy H. Koh, Walmart made the mistake of attacking the merit of the Plaintiffs’ legal claims instead of arguing that the Plaintiffs were not similarly situated to each other. Judge Koh disregarded Walmart’s merit-based arguments and granted certification to the class.

Collective or class actions are advantageous tools for employees who are the victims of wage theft. They can be a powerful mechanism to deter employers from skimming off their employees’ wages. While an individual employee may have only a few hundred dollars stolen, an employer can easily pay them off and sweep their claims under the rug. This permits employers to continue skimming wages.  However, when the employer faces a collective action, all the aggrieved employees are notified of the violation and provided with the opportunity to join the lawsuit to seek back wages against the employer.

The case is Magadia v Wal-Mart Associates Inc., et al, case number 17-cv-00062, and is pending in the United States District Court for the Northern District of California.

 

Image link: https://pixabay.com/en/shopping-bottle-woman-grocery-2411667/

Burlington T-Shirt Company Sued for FLSA Retaliation

A former account manager of T.S. Designs (Burlington T-Shirt) recently filed suit alleging that her termination amounted to retaliation under the Fair Labor Standards Act (FLSA) and North Carolina wage and hour laws. Cara McCollum stated in her complaint that she contacted the Department of Labor to inquire about the legality of a number of Burlington’s wage and hour policies for account managers, including one that involved them paying part of their hourly wages back to the employer when overtime hours were worked and commissions were earned.  McCollum received confirmation from the Department of Labor that the policies were illegal and informed Burlington of the same. Nine days later, she was terminated.

The complaint filed by McCollum states that “[h]er firing was in close temporal proximity to her letter to her employer and to her call to the Department of Labor, demonstrating that her firing was in retaliation.”

The FLSA is a federal law that establishes minimum wage and overtime protections for many workers in America, and it is enforced by the Wage and Hour Division of the U.S. Department of Labor. The FLSA also prohibits retaliation against any person who has filed a complaint with the Department or an employer (orally or in writing) or cooperated in an FLSA investigation. Protecting workers from retaliation and ensuring that they do not face threats or intimidation for exercising their rights is an important priority for the Wage and Hour Division.

 

Image link: https://pixabay.com/en/clothing-store-shop-boutique-984396/

No Questions Asked: Employers Must Pay Overtime Whether Requested or Not

The Fair Labor Standards Act (FLSA) puts non-negotiable and non-waivable obligations on employers. One of those obligations is to pay employees an overtime rate of time and a half (1.5x) each employee’s regular rate for hours worked in excess of forty (40) in a workweek unless the employee falls within an exemption from that legal requirement.

Companies often attempt to excuse their unlawful payment schemes by blaming the employee.  It is not the employee’s fault when a company does not pay overtime at one and a half times the regular rate of pay. It does not matter if the employee agreed—either orally or in writing—to accept a lower rate of pay for overtime hours. It does not matter if the employee asked for a lower rate of pay for overtime hours. It does not matter if the employee does not record working overtime hours, and it certainly does not matter if the employee does not request to be paid at an overtime rate. If the employee is legally entitled to overtime pay, then it is the employer’s responsibility and obligation to pay the employee overtime pay.

These principles hold true even if the employer tries to argue that the agreement was more beneficial to the employee than properly paying overtime. This sort of manipulation is a tactic employers use when they try to claim that they only permit overtime on the condition that it is not paid at an overtime rate. Thus, the employee feels compelled to accept the lower rate to get the extra hours. The FLSA is precisely designed to protect employees from this sort of manipulation by their employers. Employers cannot avoid their liability by blaming the employee for agreeing to not accept overtime or for blaming the employee for not asking for overtime.

If you have any further questions about whether you are entitled to overtime pay, the Wage Authority Group is awaiting your call.

 

Image link: https://pixabay.com/en/building-professional-employee-2762241/

FLSA Claims Are Not Exempt from Arbitration Agreements

On December 12, 2017, a three-judge panel of the 2nd Circuit unanimously affirmed the ruling of a district court that a truck driver, Jaun Rodriguez-Depena, must arbitrate his FLSA claims. Mr. Rodriquez was employed by Diligent Delivery Systems, Parts Authority Inc., and Michigan Logistics, Inc. as a truck driver. The 2nd Circuit ruled as a matter of first impression for the circuit that an arbitration agreement signed by Mr. Rodriguez at the onset of his employment was applicable to his FLSA claims and prevented him from bringing a lawsuit in Federal Court.

The United States Supreme Court is currently wrestling with a number of issues surrounding mandatory arbitration agreements that are forced on employees by their employer. This particular case involved wage and hour claims, but, generally, the mandatory arbitration claims bar all employment lawsuits against an employer. Instead, the employer requires the employee to waive their right to file a lawsuit and to instead decide the dispute in an arbitration setting, which is often a more favorable venue to the employer than the employee.

Another critical issue is whether an employer can insert a class action waiver into the arbitration agreement. There has been a substantial increase in not only mandatory arbitration agreements but also class action waivers within those arbitration agreements. Large employers include class action waivers because, particularly where there are limited damages in play (which is often the case with an individual wage theft action, the employer is able to deter the claim altogether by isolating a single plaintiff. One of the purposes of Section 216(b) of the FLSA is to allow Plaintiffs to bring an action as a collective action, wherein they can pool their claims together with other similarly situated individuals.  Class action waivers in mandatory arbitration agreements are a method utilized by employers to avoid those collective actions.

Justice Ruth Ginsburg of the United States Supreme Court recently referred to these mandatory arbitration agreements as “yellow-dog contracts” in which an employee has absolutely no bargaining power.

 

Image link: https://pixabay.com/en/truck-lorry-sunset-road-cargo-331499/