Articles Posted in Overtime

Decades ago, during the height of the low fat diet craze, the Subway sandwich chain proliferated across the nation in short order. Buoyed by powerful marketing messages — one customer, “Jared,” claimed that he lost hundreds of pounds eating nothing but Subway sandwiches — the restaurant soon became an American institution, competing with fast food giants such as McDonalds, Burger King, and Wendy’s.

However, the last few years have delivered serious bad news for the sandwich maker.

Earlier this year, evidence emerged that Subway had been using a “yoga mat” chemical in its bread. This revelation grossed out thousands of consumers and forced Subway to fight a tough PR battle. Meanwhile, many new books and studies have emerged, suggesting that refined flour and bread (Subway’s main ingredients) may be responsible for diverse ills, including diabetes, obesity, heart disease and even Alzheimer’s.

In last week’s post, we discussed the USA Today Editorial Board’s support for President Obama’s push to raise the overtime salary threshold. The USA Board’s perspective on the proposal was by and large positive, but Obama’s political opponents have not been pleased. Writing in the Wall Street Journal, overtime threshold push opponent, Andy Puzder, raised some impassioned points in his piece, “Obama’s Overtime-Pay Boomerang: The New Rule Hurts the Very Managers Climbing the Ranks It Claims to Help.”

If you read last week’s post, contrast Puzder’s language and ideas with what the USA Today Editorial Board wrote. Here is how Puzder framed the problem: “President Obama on March 13th signed an order directing the Labor Department to expand the class of employees entitled to overtime pay. Currently, if a salaried employee makes more than $24,000 a year, and he is part of the management — if he manages the business, directs the work of other employees, and has the authority to hire and fire — that employee isn’t exempt from overtime coverage. The President wants to raise the salary threshold, perhaps as high as $50,000, demoting entry level managers to glorified crew members by replacing their incentive to get results with an incentive to log more hours.”

Puzder’s rebuttal to the idea of raising the threshold back to 1975 levels can be boiled down to the opening sentence of his third paragraph: “rewarding time spent rather than time well spent won’t help address [the problem of inequality in United Sates].”

A Kansas Federal Judge recently approved a $73 million class action settlement to resolve a court battle between Bank of America and 185,000 BoA workers who had been doing work “off the clock,” in violation of the Fair Labor Standards Act (FLSA) and federal and state wage and hour laws.

240 workers had opted into the class; approximately 185,000 other hourly workers will receive at least $20, per the deal. These eligible employees include call center workers, retail bankers, and other hourly employees who worked for BoA from October 2006 until the present. Judge John Lungstrum, a U.S. District Judge in Kansas, consolidated multiple legal actions against BoA in 2013, when the class action was created.

The Roots of BoA’s Wage and Hour Problems

In December, a New York federal judge heard arguments in a wage and hour case brought by Joseph & Kirschenbaum on behalf of contract attorney, David Lola. The case could have profound ramifications for law firms across the city and beyond.

Our own attorney, Maimon Kirschenbaum, argued that Lola should have been entitled to overtime pay, per the Fair Labor Standards Act (FLSA), since Lola needed to adhere to “extremely detailed protocols” when he did document review work, and that he had no ability to “exercise any judgment” that an attorney typically might render.

Unsurprisingly, representatives for Skadden, Arps, Slate, Meagher & Flom and Tower Legal Staffing — the defendants in this case — have taken a different view of document review. In a brief that they submitted to the court, Skadden made a passionate argument that “the federal overtime laws were not designed for advanced-degree professionals to accept premium wages and then make ‘gotcha’ arguments that they were misclassified for every period they performed a task a nonprofessional could allegedly also complete.”

What is the Earned Sick Time Act? What rights do this new law confer on employees?

The New York City Council worked hard to pass this Act, which allows many New York City employees the opportunity to take up to 40 hours of paid sick leave annually. [Ineligible employees can still get 40 hours of unpaid sick leave.] The City Council advocated for this for months and finally got the law passed on May 8, 2013. At the time, Mayor Bloomberg swore that he would veto the Act, but the City Council had enough votes to override Bloomberg’s veto. The Act will take effect on April 1, 2014, as long as the local economy is doing better than it had been doing in January 2012, as assessed by New York’s Independent Budget Office.

Who is eligible? Anyone hired in New York City who works 80 plus hours in a calendar year — who does part time or full time work — can collect benefits under the Earned Sick Time Act. Those who are ineligible include independent contractors (people New York Labor Law would not deem to be “employees”); licensed employees of the New York State Department of Education; and people paid at a premium rate, who call in for work assignments.

The Nevada Supreme Court issued a unanimous decision in October that could have profound ramifications for the Las Vegas and Reno gambling industries.

Workers at Wynn Casino in Las Vegas alleged that their company illegally compelled them to share tips with their supervisors. Here are some key milestones in the case:

• In 2010, Nevada’s Labor Commissioner, Michael Tanchek, said that Wynn’s tip-pooling policy did not violate Nevada state law.

On this blog, we’ve spilled a lot of virtual ink about wage and hour cases in the New York restaurant industry. In particular, we frequently report on cases concerning the Fair Labor Standards Act (FLSA) and New York Labor Laws (NYLL).

But wage and hour problems are not the sole province of the New York restaurant industry. In fact, unfortunately, workers across the U.S. get short shrifted in a wide variety of industries.

Case in point: the U.S. Department of Labor has been investigating two professional baseball clubs — the San Francisco Giants and the Florida Marlins — for federal wage law violations. The charges against these two teams may just be the tip of the iceberg. According to a Labor Department memo dated September 12, 2013, dicey payment practices may be “endemic to [the professional baseball] industry.” In August, the San Francisco Giants settled a class action that provided nearly $550,000 in damages and back wages to 74 workers who worked in the clubhouse and in video operations.

Your boss docked your overtime unfairly. Or maybe your husband — or someone you love –got harassed or discriminated against at work.

Why? Why do some employers mistreat and underpay their workers?

Entrepreneurs are hardwired to trim overhead, when they can. A restaurant owner, for instance, knows that any money that goes towards payroll must come out of the company’s coffers. To that end, the very act of running a business puts pressure on owners to minimize labor costs.

Among the pantheon of crimes against workers, tip pool violations are far from the most dramatic. We’ve come a long way in the United States since the days of the Triangle Fire, and we no longer allow young children to work horrendous hours and dangerous jobs. Our laws provide protections for the underprivileged and for members of special classes.

On the other hand, problems like wage and hour issues and tip pool violations are pretty awful, and they have ripple effects that can cascade throughout society.

How Tip Pool Violations Can Set Off a Cascade of Unfair Situations

Did your restaurant manager steal your tips? Has your supervisor sent raunchy emails to you and your staff? Did a company unfairly deny you overtime pay for contract work? If so, odds are that you’re kicking yourself and saying things to yourself like:

• I’m an intelligent person who’s also street-smart. Yet I still wound up stuck in a dysfunctional work relationship/arrangement. Why did that happen, and what can I change about myself and/or the way I work to avoid having to go through this again?

Consider these explanations and see whether they resonate with you:

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