Florida Employment Lawyer Blog

In a large, closely-watched consolidated appeal of six cases all arising out of the Southern District of Florida, the Atlanta-based Eleventh Circuit Court of Appeals rejected what has become known as the "coming-to-rest" doctrine in Fair Labor Standards Act cases. Several judges have dismissed numerous cases on the grounds that the employer is not engaged in interstate commerce because the goods and materials used by the come had already "come-to-rest" in Florida, and thus there was no interstate commerce of the goods or materials.

This doctrine had been rejected by every other court of appeals and was at odds with the Department of Labor's own interpretation of the interstate nature of goods and materials for purposes of the FLSA. The Eleventh Circuit agreed with every other court and the DOL and rejected the "coming-to-rest" doctrine.

The end result is that more employers are responsible for paying their employees overtime and more employees are entitled to overtime. Many more local businesses - carpet installers, contractors, landscapers, local restaurants and cleaning companies - are now responsible for complying with a federal complicated and costly statute.

The case is here:

Polycarpe FLSA Opinion

Sarelson Law Firm has extensive experience representing employees and employers in these types of overtime lawsuits.

Mortgage loan officers who collect, process and sell mortgages to prospective homeowners are not exempt from the overtime rules under the Fair Labor Standards Act. A recent opinion letter from the U.S. Department of Labor confirms that most mortgage officers are entitled to overtime pay. In light of the housing boom and bust of the past several years, it is very likely that a significant number of loan officers and mortgage brokers were improperly denied compensation. This is likely especially true in South Florida, which already leads the nation in violations of the FLSA and where thousands of people became "mortgage brokers" to capitalize on the housing boom.

The DOL announcement is here:

Mortgage Loan Officers Not Exempt From Overtime

Sarelson Law Firm has extensive experience representing employees in unpaid wage and overtime cases.

It is amazing how law firms are sometimes the most blatant violators of the law. One of the biggest employment related issues for law firms is the compensation for legal secretaries and paralegals. For whatever reason, many lawyers pay their paralegals a salary without additional overtime compensation. As a general rule, this is illegal.

Legal secretaries and paralegals are almost never "exempt" from the overtime provisions of the Fair Labor Standards Act. If you are paid hourly, you are never exempt as a matter of law. If you are paid on a "salary," you are probably being paid improperly and may due thousands of dollars in unpaid wages and overtime.

Time spent checking your blackberry or your work email outside the offce on nights and weekends is "work" that needs to be compensated and taking documents or files home also constitutes "work" that needs to be compensated.

For employers, the key to remember is that the owners of the law firm (meaning the lawyers) are personally liable. There is not corporate shield for violations of the FLSA.

Sarelson Law Firm has represented paralegals and secretaries in disputes with law firms, and we have represented law firms with respect to FLSA compliance. One pending lawsuit -- the Firm has no involvement in this action -- by a paralegal against a law firm is identified here.

A recently filed class action alleges that Baker Landscaping Corporation of Palm Beach County, Florida failed to properly compensate its employees. The Complaint is here:

Abrego v. Baker Landscaping Corporation

Judy Calibuso is a financial advisor with Bank of America here in Miami, Florida. She has alleged, on behalf of herself and all other similarly situated female employees, that Bank of America, through its subsidiary Merrill Lynch, systematically discriminates against female financial advisors by giving them less opportunities and a less favorable compensation scheme. Although Ms. Calibuso lives in Miami, the class-action lawsuit is pending in the federal district court in Brooklyn, New York.

The class-action complaint is here:

Questions about gender discrimination? Contact an experienced employment attorney today.

The blog has previously covered employment lawsuits against Walmart, especially the massive Title VII case out of San Francisco and several Age Discrimination in Employment Act actions pending throughout the nation. Sarelson Law Firm actually is involved in some of the ADEA cases against Walmart.

The San Francisco-based Ninth Circuit Court of Appeals, sitting en banc with 11 judges participating, upheld the district court's certification of a class of nearly 1.5 million female employees of Walmart. The decision was 6-5 in favor of class certification, and two judges wrote blistering dissents. In light of the potentially billion dollar exposure for Walmart, you can bet a petition for certiorari with the Supreme Court is being briefed as I write this.

Here's a link to the Ninth Circuit's opinion -- it is too large to post here. Questions about Title VII, class-actions, or age discrimination lawsuits? Contact Sarelson Law Firm today.

Sarelson Law Firm has filed a putative class action lawsuit against Miami, Florida-based International Shipping Partners, Inc. for not paying employees proper wages and overtime. The lawsuit seeks class action status for all on-board employees who are not exempt seamen under the Fair Labor Standards Act. The word "seamen" has a very narrow and precise meaning in the law, so many employees who work on a ship, and even some who are called "seamen," are still entitled to overtime pay. ISP owns and manages ocean going vessels.

The lawsuit currently has four named plaintiffs and can be found here:

Moreno v. International Shipping Partners Class Action

If you have any questions about this lawsuit, please feel free to contact the Firm today.

The U.S. Supreme Court has agreed to hear a case from Chicago where the district court and Seventh Circuit Court of Appeals concluded that an oral complaint under the Fair Labor Standards Act is not sufficient to state a claim for FLSA retaliation. Unlike most other federal appellate courts, the Seventh CIrcuit concluded that only a written complaint to the employer about unpaid wages or unpaid overtime is protected by the FLSA. Every other court has concluded than any complaint made by an employee to an employer about overtime constitutes protected activity. In other words, if an employee in Chicago has an in-person discussion with his manager about why he is not being paid overtime, the employer may lawfully terminate the employee for having this discussion. Had the employee had the same discussion in an email exhange, the FLSA's anti-retaliation provision would be applicable, and any termination that resulted from the email exchange would be unlawful.

The Seventh Circuit's decision in Kasten v. Saint Gobain Performance Plastics Corporation is clearly incorrect because it results in creating a distinction between an in-person and email discussion between an employee and an employer. The blog anticipates that the Supreme Court will reverse the decision and apply a more liberal and equitable interpretation of the FLSA's anti-retaliation provision. The case likely will not be heard until October 2010. The employee's petition for certiorari gets it exactly right, and is available here:

Sarelson Law Firm has successfully represented employees and employers in FLSA retaliation lawsuits. Contact the Firm with questions.

The Equal Employment Opportunity Commision ("EEOC") announced that the Seattle-based Les Schwab Tire Centers will pay $2 million to settle claims that it discriminated against women by not hiring qualified women for jobs that included tire changing. Schwab operates 400 tire stores in Washington, Oregon, California, Idaho, Montana, Nevada, and Utah. The positions were sales and service department jobs that were a prerequisite for the more lucrative managerial positions. Schwab denied these positions to women for over 50 years and just recently promoted the first woman to an assistant manager position. One of the plaintiffs, who was demoted from sales when corporate took over the independently-owned store she worked at, was told "No gal in the company would ever make that kind of money. Gals should work in admin."

According to the EEOC, company founder Les Schwab's own published book exposes a corporate culture where men get the better jobs. Mr. Schwab's book describes how men can succeed in the company, reinforcing a decades-old idea that men do certain jobs and women do others. Mr. Schwab published the book some time ago, but a copy is still available for sale in every Les Schwab store.

The settlement concludes a gender discrimination class action suit filed in 2006. Schwab has also agreed to maintain anti-discrimination policies and provide training to all employees, as well as reporting to the EEOC to show its compliance.

The EEOC expects that this settlement will emphasize the importance of providing equal employment opportunities. Employers that place men and women in different types of jobs based on stereotypical views of what each gender is capable of doing are violating anti-discrimination laws.

If you have been denied a certain position because of your gender, you should contact an experienced discrimination attorney.

On February 28, 2010, the Miami-Dade County Commission unanimously voted to enact a wage theft ordinance to ensure that employers are paying their employees properly.

An employee owed wages may file a complaint with the County, and the County, at its expense, will serve the complaint on the employer and request that the employer respond to the allegations. A hearing officer will determine what damages, if any, are due the employee. Importantly, the employee entitled to back pay is also entitled to a liquidated damage amount of twice the amount of back pay. Translation -- if you are owed $1,000, then you will receive $1,000 in back pay and $2,000 in liquidated damages for a total of $3,000. The ordinance also allows for an employee's attorney to be compensated directly from the employer.

Unlike federal wage laws, there is no requirement that the employer be engaged in interstate commerce or that the employer gross a certain amount of revenue. The only requirement is that the employee is owed at least $60 (yes, sixty dollars). Finally, the ordinance allows the employee to recover wages from the officers and owners of a corporation --- corporate employers will not be able to hid behind the corporate veil to avoid paying employees.

The ordinance is beng codified as Miami-Dade County Ordinance 10-16 and will be in Chapter 22 of the County Code.

For now, here's the entirety of the ordinance:

Continue reading "Miami-Dade County Passes First in the Nation Wage Theft Ordinance" »

Washington Inventory Service, Inc., the nation's largest inventory control out-sourcing company, and its parent company, WIS Holdings Corporation, was sued for violating the Fair Labor Standards Act's minimum wage and overtime provisions. According to the Complaint, a WIS employee was "paid" via a Visa Debt Card but the Visa Debt Card had been activated by a different WIS employee. The Complaint also alleges that a class of employees were not paid properly because the company failed to maintain proper recordkeeping of all hours worked. The Class-Action Complaint is here:

Contact Sarelson Law Firm, P.A. if you would like more information about the lawsuit.

For those interested, a copy of the complaint filed in the nationwide class action against Toyota over the recall is here:
Toyota Complaint

It has been assigned to Judge Zloch but there are several other cases pending around the country and no doubt this will be consolidated into a single multi-district litigation.

When American Airlines began charging baggage handling fees, their Skycaps started losing substantial income from lost tips. Customers lowered their tips as a result of the new American Airlines' fees. A federal judge in Boston certified a class action lawsuit against the airline for recovery of those lost tips. Although the case is pending in Boston, American has major hubs at JFK, and right here at Miami International Airport.

American Airlines is not the only national air carrier facing extensive liability -- U.S. Airways and Jet Blue airways have all been hit with similar class action lawsuits. American Airlines has already appealed a large jury verdict resulting from similar allegations. Stay tuned -- these lawsuits could all be dismissed on legal grounds, or could end up costing the airlines millions of dollars each.

The Fair Labor Standards Act mandates that all employees be paid time and half for all time worked in excess of 40 hours in any given work week. The Act exempts only a small class of employees, commonly referred to as managers or supervisors. But the title "manager" or "supervisor" has no legal significance, nor does being "salaried." The law considers what employees actually do on a daily basis -- not what the company claims they do. Many companies - ranging from small businesses to large publically traded companies - routinely misclassify their employees and wrongfully deny them the overtime compensation they are legally entitled to receive.

According to a new lawsuit filed in federal court in Atlanta, telecom giant AT&T is one such company. Apparently their first tier managers are not paid any overtime, even though their job duties are not actually "managerial." This is a fact intensive question and AT&T, which is facing millions of dollars in damages, will no doubt spare no expense defending this lawsuit. Employees of all levels should consult with an experienced overtime compensation employment attorney to get educated.