At the 11th Circuit’s sua sponte request, the U.S. Department of Labor (DOL) submitted an opinion that undocumented workers are entitled to bring claims for unpaid minimum wages and overtime under the Fair Labor Standards Act (FLSA). While the 11th Circuit’s query is troublesome, given that neither party had raised it before the court, and given that one of the leading circuit court decisions on the issue is from the 11th Circuit, it is heartening to read the DOL’s opinion:

The longstanding position of the [DOL] is that undocumented workers are entitled to minimum wages and overtime pay for hours worked under the FLSA. This Court has unequivocally sustained that position. See Patel v. Quality Inn S., 846 F.2d 700,703-06 (11th Cir. 1988), cert. denied, 489 U.S. 1011 (1989). The Supreme Court’s subsequent decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), did not disturb that holding…

For more information on The Employment Law Group® law firm’s Wage and Hour Practice, click here.

According to Law360, the California Senate passed two bills, AB 1881 and AB 2771, attempting to crackdown on minimum wage violations in the underground economy.   AB 1881 would allow employees to recover twice the amount of unpaid minimum wages from their employer, and AB 2771 would criminalize employers’ failure to issue itemized wage statements to their employees.  Violating AB 2771 would be a misdemeanor punishable by a fine of up to $1000 or up to one year in jail or both.  The bills now proceed to Governor Schwarzenegger’s desk. 

For more information The Employment Law Group® law firm’s Wage and Hour Practice, click here.

On July 26, 2010, the U.S. District Court for the Northern District of Illinois granted restaurant workers’ motion that allows them to pursue a class action lawsuit against their employer, The Smith & Wollensky Restaurant Group Inc.  The restaurant workers allege that Smith & Wollensky, which owns the steakhouse chain with the same name, violated the Fair Labor Standards Act (FLSA) and Illinois wage law by illegally requiring workers to pool tips with nontipped employees and by failing to pay them required overtime and minimum wages.  Click here for the court’s full opinion.

The employment attorneys at The Employment Law Group® law firm have extensive experience recouping unpaid wages and fighting for employees who are misclassified as exempt from overtime.  To learn more about the firm’s Unpaid Wages and Overtime Practice, click here.

In a unanimous decision, the 9th circuit ruled in the case of Narayan v. EGL, Inc. that California law determines the classification of a worker employed in California even when the worker’s contract contains a choice-of-law provision.  Workers’ rights and benefits often vary depending on the worker’s classification as either an employee or an independent contractor.  The plaintiffs were truck drivers in California who signed an agreement with EGL, Inc. containing a choice-of-law provision.  The provision states that the truck drivers would be subject to the labor laws of Texas.  However, the 9th Circuit held that a choice-of-law provision does not determine which state’s law is used to classify a worker when that worker’s claim arises outside the contract.  In this case, the claim arises not from the contract itself, but from the California Labor Code which guarantees the following benefits for employees: overtime compensation, reimbursement for business expenses, and off-duty meal periods.  The court’s full opinion is here.

The employment attorneys at The Employment Law Group® law firm have extensive experience recouping unpaid wages and fighting for employees who are misclassified as exempt from overtime.  To learn more about the firm’s Unpaid Wages and Overtime Practice, click here.

On July 6, 2010, a three judge panel of the Second Circuit overturned a district court’s finding that pharmaceutical sales representatives fall into the outside sales and administrative employee exemptions to the overtime provisions of the Fair Labor Standards Act.  The opinion narrows the definition of a “sale” and refines what it means to exercise discretion and independent judgment.

According to the Second Circuit, “where the employee promotes a pharmaceutical product to a physician but can transfer to the physician nothing more than free samples and cannot lawfully transfer ownership of any quantity of the drug in exchange for anything of value, cannot lawfully take an order for its purchase, and cannot lawfully even obtain from the physician a binding commitment to prescribe it, we conclude that it is not plainly erroneous to conclude that the employee has not in any sense, within the meaning of the statute or regulations, made a sale.”  In comparison, the district court opined that while the plaintiffs may not “sell” in a technical sense, holding them exempt is within “the Act’s spirit, purpose, and goals.” 

Regarding the administrative exemption, the court noted the absence of any “evidence . . . that the Reps have any authority to formulate, affect, interpret, or implement Novartis’s management policies or its operating practices, or that they are involved in planning Novartis’s long-term or short-term business objectives, or that they carry out major assignments in conducting the operations of Novartis’s business, or that they have any authority to commit Novartis in matters that have significant financial impact.”  The court also discounted the importance of contracts made between the plaintiffs and hotels and convention centers, observing that all contracts are subject to predetermined budgets. 

The court relied heavily upon an amicus curiae brief filed by the Department of Labor in support of the approximately 2,500 plaintiffs in the case.  We blogged about the DOL’s brief here.  The case is In re Novartis Wage and Hour Litigation, and a copy of the court’s opinion is available here.

The employment attorneys at The Employment Law Group® law group have extensive experience recouping unpaid wages and fighting for employees who are misclassified as exempt from overtime.  To learn more about the firm’s Unpaid Wages and Overtime Practice, click here.

Judge Lynn Adelman of the U.S. District Court for the Eastern District of Wisconsin has granted conditional class certification in a suit against Cargill Meats alleging that the company violated the Fair Labor Standards Act.  The suit seeks payment for time spent donning and doffing protective gear by production line employees paid using modified “gang time.”

Last month, Tyson Foods settled a donning and doffing suit for $500,000.  Information on the Tyson Foods settlement is available here.

The employment attorneys at The Employment Law Group® law firm have extensive experience recouping unpaid wages and fighting for employees who are misclassified as exempt from overtime.  To learn more about the firm’s Unpaid Wages and Overtime Practice, click here.

On June 1, 2010, the Department of Labor announced that the Maricopa County Board of Supervisors and Sheriff’s Office in Phoenix, AZ agreed to pay $2,059,807 to 1,690 detention officers and sergeants for unpaid pre-shift meetings.  The meetings were daily and the amount awarded covers time worked from November 1, 2007 to March 4, 2009. 

The employment attorneys at The Employment Law Group® law firm have extensive experience recouping unpaid wages and fighting for employees who are misclassified as exempt from overtime.  To learn more about the firm’s Unpaid Wages and Overtime Practice, click here.

On June 14, 2010, the Department of Labor’s Wage and Hour Division announced that it secured payment of more than $4.2 million in back wages for workers at the Umatilla Chemical Depot in Umatilla, Oregon.  The wages are owed to 603 employees.  Among the offenses by the employer were deductions for lunch breaks that the employees were unable to take. 

The employment attorneys at The Employment Law Group® law firm have extensive experience recouping unpaid wages and fighting for employees who are misclassified as exempt from overtime.  To learn more about the firm’s Unpaid Wages and Overtime Practice, click here.

On June 16, 2010, the Department of Labor issued its second Administrator’s Interpretation of 2010, defining “clothes” under section 3(o) of the FLSA, 29 U.S.C § 203(o).   Under this new Interpretation, “clothes” refers to apparel and not protective safety equipment generally worn over one’s clothes.  Employees required by law to don and off protective gear must be paid for the time spent doing so.  A copy of the Administrator’s Interpretation is available here.

The employment attorneys at The Employment Law Group® have extensive experience prosecuting claims for unpaid wages including individual claims and class actions.  To learn more about TELG’s Non Payment of Wages Practice, click here.

On June 3, 2010, the Department of Labor announced that Tyson Foods has agreed to pay employees for donning and doffing protective wear as well as time spent washing and sanitizing themselves and their gear.  Tyson Foods also agreed to compensate employees for the time spent walking and waiting that occurs throughout the workday.  In addition, Tyson Foods will pay $500,000 in overtime back wages to 3,000 employees at its Blountsville, Alabama plant. 

For more information about the Fair Labor Standards Act and The Employment Law Group® law firm’s Unpaid Overtime Practice, click here.