In a motion denying summary judgment in a Fair Labor Standards Act (FLSA) case (West v. Verizon Services Corp.), the Middle District of Florida found that:
- there was a joint relationship between a leasing agency and the entity it contracted with;
- the failure to keep time records, together with Plaintiff’s testimony that she did work overtime, required a denial of summary judgment;
- employers had constructive knowledge of overtime being worked;
- and the Fluctuating Work Week (FWW) method of compensation could not be used.
Notably, the Court found that the FWW method of overtime compensation (i.e., that Plaintiff is only owed half-time because she has already been paid straight time for all hours worked) was inapplicable because (a) her salary did not ensure the minimum wage would be met, (b) her hours did not fluctuate, and (c) her salary was not fixed because she recieved bonuses and commisions. The Court rejected Defendants’ argument that the FWW requirements set forth in 29 CFR 778.114 are unnecessary for a half-time theory of overtime calculation and held that Plaintiff, should she prevail at trial, will receive damages equal to time and one-half her hourly rate for all overtime hours worked.
Click here to read the full order.
Plaintiff is represented by the attorneys of Kwall, Showers & Barack, P.A.
Every employer covered by the Fair Labor Standards Act (FLSA) must keep certain records for each covered, nonexempt worker. There is no required form for the records, but the records must include accurate information about the employee and data about the hours worked and the wages earned. The following is a listing of the basic records that an employer must maintain for a non-exempt employee under the FLSA:
- Employee’s full name, as used for social security purposes, and on the same record, the employee’s identifying symbol or number if such is used in place of name on any time, work, or payroll records;
- Address, including zip code;
- Birth date, if younger than 19;
- Sex and occupation;
- Time and day of week when employee’s workweek begins. Hours worked each day and total hours worked each workweek;
- Basis on which employee’s wages are paid;
- Regular hourly pay rate;
- Total daily or weekly straight-time earnings;
- Total overtime earnings for the workweek;
- All additions to or deductions from the employee’s wages;
- Total wages paid each pay period;
- Date of payment and the pay period covered by the payment.
Under the FLSA employer are required to preserve for at least three years payroll records,collective bargaining agreements, sales and purchase records. Records on which wage computations are based should be retained for two years, i.e., time cards and piece work tickets, wage rate tables, work and timeschedules, and records of additions to or deductions from wages.
The Fair Labor Standards Act (FLSA) sets minimum wage and overtime pay standards as well as recordkeeping and child labor standards for most private and public employment.
The overtime provisions of the FLSA require employers of covered employees who are not otherwise exempt to pay the employees not less than one and one-half times their regular rates of pay for all hours worked in excess of 40 in a workweek.
The minimum wage provisions of the FLSA require employers of covered employees who are not otherwise exempt to pay employees a minimum wage. In Florida, the current minimum wage is $7.25 per hour. Employers may pay employees on a piece-rate basis and, under some circumstances, may consider tips as part of wages. Tipped employees must receive a direct hourly wage of $4.19 and their total wage payment must exceed $7.25 per hour.
Salaried Employees: A salary, by itself, does not exempt employees from the minimum wage or from overtime. Whether employees are exempt from minimum wage and overtime depends on their job duties and responsibilities as well as the salary paid. Often, salaried employees do not meet all the requirements specified by the regulations to be considered as exempt from overtime pay.
The FLSA provides that employees who are successful in suing for unpaid wages are generally entitled to two times the amount originally owed and the attorneys’ fees associated with brining suit.
Typical Violations
(1) Improper classification of employees as exempt.
(2) Failure to record all hours actually worked to include time spent before or after the shift.
(3) Shorting of hours by using terms such as down time, rain delay, or mandatory break.
(4) Failure to compensate for meal breaks where the employee is not completely relieved of all duties to enjoy uninterrupted time for the meal.
(5) “Banking” of overtime hours or payment of overtime in the form of “comp time”.
(6) Failure to combine the hours worked for overtime purposes by an employee in more than one job classification for the same employer within the same workweek.
(7) Failure to segregate and pay overtime hours on a workweek basis when employees are paid on a bi-weekly or semi-monthly basis.
(8) Failure to pay for travel from shop to work-site and back.
(9) Deductions made from employees’ wages for such items as cash or merchandise shortages, required uniforms, and tools of the trade are not legal to the extent that they reduce the wages below the statutory minimum wage or reduce the amount of overtime pay.