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.

The U.S. Department of Labor's Wage and Hour Division has recovered $433,819 in back wages owed to 69 employees of Walt Disney Parks and Resorts U.S. in Orlando, Fla. The company agreed to make the payments following an investigation that uncovered violations of the Fair Labor Standards Act.

A Wage and Hour Division investigator found that inventory control clerks in the park's Food and Beverage Department were not paid for work activities occurring before and after their normal shifts. In addition, they were not paid for working through their meal times and when working from home.

"While Walt Disney has specific rules regarding off-clock work, an investigation conducted by the Department of Labor's Wage and Hour Division found that managers within the company were not adhering to those important policies," said Wage and Hour Deputy Administrator Nancy Leppink. "It is not enough to have policies. Management must also ensure that all supervisors are implementing them."

The FLSA requires that covered employees be paid time and one-half their regular rates of pay, including commissions, bonuses and incentive pay, for hours worked over 40 per week. In general, "hours worked" includes all time an employee must be on duty, or on the employer's premises or at any other prescribed place of work, from the beginning of the first principal activity of the workday to the end of the last principal work activity of the workday. Additionally, the law requires that accurate records of employees' wages, hours and other conditions of employment be maintained. The current federal minimum wage for covered, nonexempt employees is $7.25 per hour.

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.

The Fair Labor Standards Act requires a minimum wage to be paid to be all employees to provide services for employers. Many companies hire unpaid interns, especially during the summer, to provide what is essentially free work for the company. In many cases, this is illegal and the unpaid intern is actually entitled to compensation.

The employer must show that all of the following criteria are satisfied for the employer to treat the intern as an "intern" and not as an employee:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If you or your child is an unpaid intern, Sarelson Law Firm is available for a consultation. Employers should not take advantage of students by calling work an internship.

The Fair Labor Standards Act (which covers minimum wage and overtime rules) does not require workbreaks. Many employees mistakenly believe that they need to be given a 15 minute paid break for every eight hours worked - or some variation of that rule. This is a myth and is not required by federal law. (Some states, but not Florida, have greater workbreak protections).

But at least one break is now required. Breaks for breast feeding. The Department of Labor put out new regulations requiring reasonable unpaid break times for breast feeding mothers for up to one year and for non-exempt (hourly) employees who work at firms with at least 50 employees.

The fact sheet is here.

If you're an employer with a breastfeeding employee or a woman who is being harassed about breastfeeding or anything else having to do with your pregnancy, feel free to contact Sarelson Law Firm to learn your legal rights and obligations.

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

Miami-based Aventura Limousine has been sued (again) for unpaid overtime. The company has been sued several tmes over the last few years for similar overtime violations. The cases highlight two very basic issues that have harmed employees and have tricked up otherwise law-abiding employers.

First, according to the pleadings, Aventura Limousine was not hiring drivers, it was contracting with independent contractors. Employees are subject to the Fair Labor Standards Act's minimum wage and overtime provisions. Independent contractors are not employees, and thus the FLSA does not apply to them in any way. But this begs the threshold and dispositive question of who qualifies as an independent contractor?

The answer is deceptively complex. There is no clear, bright-line rule and the courts consider the issue on a case-by-case basis. This is of little help to employers. Unless the company can confidently demonstrate that it truly hired independent contractors and that it did not actually control them, most employers would be wise to settle up early and cheaply. Most of the time the employer loses this issue.

Employers need to retain an experienced employment attorney or an accounting firm to conduct an audit of what personnel are employees versus independent contractors. Aside from facing potentially enourmous civil liability by aggrieved employees, employers who misclassify their personnel face fines by the Internal Revenue Service. The government loses billions of dollars annually in unpaid payroll and income taxes.

Second, the case highlights the complexity of the motor carrier exemption. As a general rule, drivers, drivers' helpers, loaders and mechanics are exempt from the overtime provisions. But the exempt employees still need to be engaged in interstate commerce, and scholars have argued over what constitutes interstate commerice since the founding of the republic.

Sarelson Law Firm has extensive experience litigation FLSA matters on behalf of both employees and employers, and has also advised employers on FLSA compliance matters.

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.

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.

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.