Charlotte Wage and Hour and Overtime Claims Lawyer
There are a number of ways that employers can short change employees in their compensation. Some of the most common are discussed below.
The most common way employers short change employees in compensation is through misclassifying non-exempt employees as exempt in order to evade their obligation to pay overtime. Under the Fair Labor Standards Act, all employees must be paid time-and-a-half for all hours worked over 40 hours in a workweek, unless they meet one of the specified Fair Labor Standards Act exemptions. Even employees who are designated as “salaried” by employers may be misclassified and may be entitled to overtime pay. Employees are often misclassified by their employers, and anyone who believes that they are entitled to overtime should contact an experienced employment attorney.
“Independent contractors” are also often misclassified and actually qualify for employee status. If the “independent contractor” is an integral part of the employer’s business and the employer exercises a degree of control over the “independent contractor’s” work (such as by setting hours, giving performance reviews, etc.), then the “independent contractor” is likely an employee. Yet, some employers attempt to avoid the legal protections afforded to employees by misclassifying their workers as “independent contractors.”
Employees are also sometimes misclassified as “interns” by employers to avoid their minimum wage and overtime obligations. To truly qualify as an intern, a person must meet six specific criteria: (i) the internship, even though it includes actual operation of the facilities of the employer, is similar to the training which would be given in an educational environment; (ii) the internship experience is for the benefit of the intern; (iii) the intern does not displace regular employees, but works under the existence of existing staff; (iv) the employer derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded; (v) the intern is not necessarily entitled to a job at the conclusion of the internship; and (vi) the employer and the intern understand that the intern is not entitled to wages for the time spent on the internship. Many so-called “internships run afoul of these rules.
Wage and Hour Violations
Employers often fail to correctly pay employees their commissions or ensure that commissioned employees are still paid a minimum wage. Commissioned employees may still be entitled to overtime pay for hours worked at the rate of one-and-a-half times their regular rate of pay. Another question that frequently arises is when a commission is “earned,” as employers sometimes claim that an employee must still be employed on the date commissions are paid in order to be entitled to the commission.
Financial services employees are often particularly vulnerable to inappropriate wage practices. Because of the numerous ways in which financial services employees can be paid – bonuses, stock options, restricted stock, deferred compensation – employers may try to change employee’s compensation in inappropriate or unscrupulous ways.
Other wage and hour violations include “off the clock” work, where employees come in early before their shift, or work after their shift, without pay. Such “off the clock” work is prevalent in the restaurant industry, retail establishments, and sales and customer service jobs. A close cousin of “off the clock” violations is time shaving, where employers alter, or set up, time records to avoid paying for all hours worked or for overtime.
Tip theft is rampant in the restaurant, coffee house, and service industries. Employers may not give employee’s tips to managers or supervisors, take tips that are directly billed to the customer, or force workers to share tips with ineligible employees. In addition, while employers may under certain circumstances take a tip credit for tips employees receive, this does not excuse employers from the requirement that an employee be paid a minimum wage.
Class and Collective Actions in Wage Cases
Wage, hour, and overtime violations are particularly appropriate for class and collective action treatment. When employers violate compensation laws or misclassify employees, they often do so against groups of similar employees at once. In those situations, class and collective actions allow employees to vindicate their rights as a group, which is more efficient economically and creates strength in numbers.
We have experience litigating class and collective wage, hour, and overtime claims. If you have been subjected to unlawful treatment in your pay or hours, we encourage you to contact us.