The Department of Labor has proposed a new rule that would extend minimum wage and overtime protections to home care workers. Currently, home care workers are exempt from the Fair Labor Standards Act because these workers are considered “companions.” Advocates for a change to the law argue that the companionship exemption from overtime improperly puts home care workers, many of whom care for the sick and elderly, into the same category as babysitters. There are approximately two million home care workers in this country. According to the White House, 92% of home care workers are women, 30% are African-American, and 12% are Hispanic.
New Rule Proposed for Home Care Workers
January 17th, 2012Illegal Deductions from Employee Wages
January 10th, 2012Some employers try to deduct money from employee wages to cover their overhead, which the employer should be responsible for paying. For example, a business may try to deduct money from a server’s tips for such expenses as uniforms, register shortages, walk-outs, returned food, broken plates, or damaged property. If such deductions cause a worker’s hourly wage to fall below the applicable minimum wage, the deduction may be illegal. These improper deductions often occur in the hospitality industry where restaurant workers (i.e. waiters, servers, bartenders, busboys, food runners) are paid at or below the minimum wage for each hour worked. In those situations involving hospitality employees, any deduction may be an illegal deduction, in violation of the Fair Labor Standards Act (FLSA) and the Florida minimum wage law. If your employer has been making questionable deductions from your pay or your tips, contact a wage and hour lawyer at Bober & Bober, P.A. at 800-995-WAGE for a free consultation.
Florida Minimum Wage Increases to $7.67
January 10th, 2012On January 1, 2012, the Florida minimum wage increased by 36 cents to $7.67 per hour. In 2011, the Florida minimum wage was $7.25 until June 2011 when it increased to $7.31. The 2012 increase is equivalent to an extra $14.40 per week for an employee who works 40 hours and earns the minimum wage. For tipped employees, the current Florida minimum wage requires employers to pay tipped employees an hourly direct wage of $4.65. The federal minimum wage remains at $7.25. According Bureau of Labor Statistics, as of 2010, there were 253,000 Florida workers earning at or below the minimum wage. If you were not paid the minimum wage, call the attorneys at Bober & Bober, P.A. at 800-995-WAGE for a free consultation.
Case Alleges Illegal Tip Pool at Sonny’s Real Pit Bar-B-Q
November 11th, 2010A former server at South Florida Barbeque, Inc., doing business as Sonny’s Real Pit Bar-B-Q, has filed a case in court seeking to bring a class action for alleged tip theft. Like many restaurants, Sonny’s takes a “tip credit,” and pays its servers $3.02 less than the Florida minimum wage. The server in that case claims Sonny’s maintained an illegal tip pool by using server tips to supplement the wages of non-tipped employees such as dishwashers, salad preparers, and managers who are not allowed to share in server tips. The server seeks to recover, on behalf of herself and others, $3.02 for each hour worked by each server, plus an equal amount in liquidated (double) damages.
Bober & Bober, P.A. is litigating this case on a contingency fee basis and will be paid attorney’s fee only if the servers recover money from Sonny’s. If you are concerned about being involved in this case, please be aware that the law prohibits employers from retaliating against individuals seeking unpaid minimum wages. If you have information that would assist us in the investigation of these claims, please contact us. For more information about the Sonny’s lawsuit, contact Bober & Bober, P.A. toll free at 800-995-WAGE (9243), or visit our contact page at www.boberlaw.com.
Local Businesses Covered by FLSA if Employees Handle Materials
September 10th, 2010The Eleventh Circuit Court of Appeals recently handed down a decision, Polycarpe v. E&S Landscaping Services, Inc., which rejected the argument by several employers that they were not a covered by the Fair Labor Standards Act (FLSA) as an enterprise because their business were local in nature. The businesses at issue performed landscaping, construction work, alarm system installation, or shutter installation. The Polycarpe decision reversed a number of trial courts that had erroneously restricted FLSA coverage. It essentially put the Eleventh Circuit in line with all the other federal circuits that have squarely addressed the enterprise coverage issue, including the Third, Fourth Ninth, and Tenth Circuits (e.g., Marshall v. Brunner; Dole v. Odd Fellows Home Endowment Board; Brock v. Hamad; Donovan v. Scoles; and, Donovan v. Pointon). It also put the Eleventh Circuit in line with its prior interpretations of enterprise coverage; namely, Dunlop v. Indus. Am. Corp., which had noted that the FLSA reached retail and service establishments that were otherwise local in nature; and, and Green v. Propane Gas Serv. Inc., which held that the FLSA was “designed to regulate enterprises dealing in articles acquired intrastate after travel in interstate commerce.”
The Polycarpe decision corrected the decisions of some trial courts in Florida which had erroneously held that a business was not covered by the FLSA if it made its purchases locally and served only local customers. These trial courts failed to look at whether the articles used in the particular business had been manufactured out-of-state. These trial courts had applied the “come to rest doctrine” which the Polycarpe court determined was at odds with the statutory text of the FLSA. Indeed, the Polycarpe court stated that the “plain language of the statute” compelled its conclusion.
The Polycarpe court also addressed the difference between “goods” and “materials” with respect to the application of the “ultimate consumer” defense. The “ultimate consumer” defense applies only to goods, but does not apply to materials. To determine whether items in a particular case constitute “materials” depends on (1) whether they are tools or other articles necessary for doing or making something, and (2) whether the items are being used commercially in the employer’s business.
The Polycarpe decision was a victory for employees’ rights to payment of minimum wages and overtime.
Many Landscaping Companies Violate Wage Laws
July 28th, 2009Some landscaping companies try to avoid overtime pay by paying their workers a piece rate for removing landscaping, but fail to pay their workers overtime when they exceed for 40 hours in a week. For example, one landscaping company was required to pay $52,240 in back wages and penalties following a determination by the U.S. Department of Labor’s Wage and Hour Division that company violated provisions of the Fair Labor Standards Act (FLSA) buy using such a piece rate pay system. An employer may determine earnings on a piece rate basis, a salary basis, by commission, or by some other basis. The overtime pay due, however, must be calculated on the basis of the average hourly rate derived from such earnings. Another mistake some landscaping companies make is they pay their employees from two different companies for the same work, or paying their employees from one company for work performed during the workweek, and from a different company for work performed on the weekend. Other landscaping companies ask their employees to “volunteer” to work on weekends and then try claim they are independent contractors. If your employer is engaging in this conduct, you should contact a wage and hour attorney to see what overtime or other wages you may be owed.
Immigrant Wage Theft
July 25th, 2009
All covered employees, whether working legally or illegally, and regardless of his or her immigration status, are entitled to be paid the minimum wage and overtime. Wage theft from undocumented workers is common, especially in workplaces such as construction sites, nail salons, and restaurants that are largely staffed by immigrant workers.
The Fair Labor Standards Act prohibits employers from retaliating against their employees for asserting their right to their wages. Threats to turn over employees to U.S. Immigration and Customs Enforcement (ICE) because that employee has exercised his or her rights, or other forms of intimidation, will be considered retaliation in violation of the Fair Labor Standards Act’s anti-retaliation provisions. Moreover, according to ICE’s Special Agents Field Manual, immigration officials must consider whether the information is being provided to interfere with or retaliate against employees seeking to assert their workplace rights. If immigration authorities determine that information has been provided to interfere with the employee’s rights or to retaliate against the employee for exercising his rights, immigration authorities are not suppose to take action without review of District Counsel and approval by the Assistant Director for Investigations or an Assistant Chief Patrol.
New Federal Minimum Wage Increase
July 24th, 2009On July 24, 2009, the federal minimum wage increased to $7.25. This increase has taken place incrementally over a two year period. State and local governments can require higher wages be paid to employees within their boundaries. Since Florida’s minimum wage was less than $7.25 per hour, the new hirer federal minimum wage will have the effect of increasing the Florida minimum to $7.25 per hour until the next annual increase in the Florida minimum wage when it adjusted for inflation. For tipped employees, this new rate means covered employers must pay tipped employees $4.23 per hour for the first forty hours that a tip credit is taken, and $7.86 for overtime hours where a tip credit is taken. If you believe you employer is not paying you the minimum wage, call Bober & Bober, P.A. for a free consultation.