Recovering unpaid overtime as a federal employee

Are you working over 40 hours per week but not getting paid for it? Federal employees can recover overtime pay under both the Fair Labor Standards Act (“FLSA”) and the Federal Employee Pay Act (“FEPA”). Even if your overtime was not expressly approved, both statutes may still allow you to recover overtime pay.

The FLSA requires overtime pay generally

The FLSA, which applies to private employers and the federal government alike, requires your employer to pay premium pay (1.5 times your normal pay) for all hours worked beyond the 40 per workweek. Certain employees are exempt from FLSA’s overtime pay requirement, such as:

  • Exempt Executive: This applies to employees whose primary duty is managing a business or a subdivision of a business, who regularly direct the work of at least two other full-time workers, and who have authority or influence in hiring, firing, and promotion of other workers.
  • Exempt Administrative: This applies to employees whose primary duty is the performance of office or non-manual work directly related to the management or general business operations. The employee must exercise discretion and independent judgment with respect to matters of significance.
  • Exempt Professional: This applies to employees whose primary duty is the performance of work requiring advanced knowledge in a field of science or learning, acquired by a prolonged course of specialized intellectual instruction.

Don’t be fooled by a position title. Whether you are a FLSA-exempt employee depends on your actual duties, not just your position title.

I’m FLSA-exempt, can I still get paid for overtime?

Fear not, federal employees. You can still recover overtime even if you are FLSA-exempt. The FEPA authorizes overtime pay for federal employees not covered by other specific statutes, with the exception of employees engaged in professional, technical engineering, or scientific activities.

What if I wasn’t told to work overtime but did anyway?

Even if you weren’t expressly instructed to work overtime, both statutes permits recovery under certain circumstances.

Under the FLSA, you can recover for overtime work that was “suffered or permitted.” This applies broadly to situations where the employer knows or should have known that employees are continuing to work beyond the 40-hour workweek, and when the employer is benefiting from the work being done.

Similarly, the FEPA provides more limited recovery for work that was “induced” by one with the authority to order approve overtime, but not expressly directed.

Alan Lescht and Associates can help!

Our firm currently represents over 1,500 Border Patrol agents who allege they were required to work unpaid hours during the sequestration and corresponding budget cuts from 2013 to 2016. The agents are also seeking compensation for work they allegedly performed before their shifts and at home.  The case is proceeding in the Court of Federal Claims, the venue for claims for unpaid wages against the federal government.

Do you think you may be entitled to overtime pay? Contact Alan Lescht and Associates, PC, today. Call us at (202) 463-6036, email us, or visit our website. We represent private employees in DC, Maryland, and northern Virginia, and federal employees around the world.

Attention interns: You may be entitled to pay for the work you performed this summer!

unpaid intern

Many employers have found themselves in hot water when they learn that one of their interns is suing them for wages and overtime. In some cases, employees are misclassified as interns and denied wages they should receive. Some employers intentionally misclassify employees as interns to get free labor and pay less taxes. However, other employers simply don’t know the law.

Do employers have to pay interns?

It depends on the type of work they do. Employers don’t have to pay interns minimum wage like regular employees. However, an intern must receive some type of educational benefit to truly be an intern rather than an employee. The U.S. Department of Labor considers various factors to determine if a worker is an intern:

  • Did the employer hire the intern through a school program?
  • Did the intern actually receive educational or real-world training?
  • Did the intern displace regular employees?
  • Did the intern work under close supervision?
  • Did the intern provide an immediate advantage to the employer, or did he/she actually slow down or impede the employer’s work?
  • Did the intern or the employer benefit more from the arrangement?
  • Is the intern entitled to a job at the conclusion of the internship?
  • Do the employer and intern agree that the employer does not have to pay the intern?

Did my employer misclassify me?

Depending on the circumstances, you may have been misclassified as an intern if you provided an immediate advantage to the employer, if you displaced regular employees, or if you did not receive educational or real-world training. For example, in one case, a hospital misclassified students as radiology technician interns. Instead of placing students with employed radiology technicians, the program often assigned students to areas of the hospital staffed by other students. Students frequently performed X-rays by themselves.

If your employer misclassified you as an intern, you may have a right to minimum wage and overtime. DC employers must pay their employees at least $12.50 per hour.

Do you need legal assistance?

If you believe your employer misclassified you as an intern, you may be entitled to pay for the hours you worked. Contact Alan Lescht and Associates, PC, today. Call us at (202) 463-6036, or email us. We represent private employees in DC, Maryland, and northern Virginia, and federal employees around the world.

Tip sharing: Minimum wage still required for tipped employees

Many workers rely on tips to make a living. Wait staff, bartenders, baristas, hair stylists, and cleaning staff are just some examples of employees who rely on tips.

One common practice in industries where tipping is the norm is tip sharing. Tip sharing involves pooling tipped employees’ earnings and dividing them among employees. The tips may be divided among tip-receiving employees and other employees such as dishwashers, bussers, cooks, and others who don’t commonly receive tips themselves.

Most states allow for tip sharing, but there are certain rules and limitations that apply. Here are two important things to remember:

  • Minimum wage requirements: Tip-earning employees are only required to place tips in a pool that exceed minimum wage. Employees are not required to share tips if their total earnings equal less than minimum wage.
  • Employers excluded: Employers cannot take part in tip sharing. Tip sharing is only for employees who receive tips – not those who employ them.

When an employer takes tips from a tip pool, or when a tipped employee is earning less than minimum wage, it may be time to speak to an employment law attorney about what is happening.

Although tip pooling is legal in many states, employers must follow the law. When they don’t, they can be held accountable.

Talk to an attorney today: Call Alan Lescht & Associates, P.C., at 202-463-6036 for answers to your questions about tip sharing – and to learn what to do if your employer is violating the law.

Obama Administration unveils major changes to overtime law

POTUS overtime

The Department of Labor formally announced a substantial change to federal overtime regulations. Specifically, the overtime threshold for employees in professional, administrative and management roles will increase from $23,660 to $47,476. This news was formally announced by Vice President Joe Biden, Labor Secretary Thomas Perez and Senator Sherrod Brown (D.-Ohio). The increase is expected to go into effect on December 1, 2016, barring Congressional action.

Labor groups and others applauded the move. Jared Bernstein, a former economist for Vice President Biden and a senior fellow at the Center on Budget and Policy Priorities, stated “[T]his is one of the most important measures that the Obama administration has implemented to help middle-wage workers.”

What are the practical implications for overtime wages?

According to the Department of Labor, the increased threshold is likely to impact approximately 4.2 million salaried employees across the United States. Businesses are likely to react to the increase in one of three ways.

  • For qualifying employees who are already close to the threshold, employers may simply raise employee salaries in order to avoid having to pay overtime
  • Alternately, employers will convert employees to hourly employees, who will then be required to track their time so they can receive proper amounts of overtime pay
  • Employers may convert an employee from salaried to hourly and reduce an employee’s base pay in order to account for the overtime pay they will likely receive going forward.

Going forward, it will be worth watching to see how employers comply with these new regulations.

Anyone not receiving proper overtime pay has the right to bring a claim for unpaid overtime. Contact Alan lescht and Associates today if you believe your employer owes you overtime wages.

Sources: Millions more workers would be eligible for overtime pay under new federal rule, Jonnelle Marte, Washington Post, May 17, 2016

Exploitation of undocumented workers: They still have legal rights

A recent article in The Tennessean looked at the issue of employers’ failure to pay undocumented workers. The article highlighted the protections available to such workers when their employers exploit them.

According to a 2004 study by the Urban Institute, undocumented workers made up about 5 percent of the U.S. workforce. Although it is illegal for employers to hire undocumented workers, they are bound by the Fair Labor Standards Act to provide minimum wages, overtime pay, and other protections once they do. Further, there is no legal residency requirement to file a complaint in American courts, which means that even illegal workers can file complaints against employers failing to comply with the Fair Labor Standards Act.

The Worker’s Dignity Project-a Nashville-based nonprofit-seeks to educate immigrant workers of their rights and assist them in securing those protections.

Many immigrant workers, both legal and illegal, report that some employers neglect to pay them properly for their work and then threaten deportation if they complain. Complaints filed in the U.S. District Court for the Middle District of Tennessee showed a variety of claims, from accusations of failure to pay overtime wages to painters, to exploiting Mexican migrant workers through federal guest worker programs.

According to a Nashville attorney who represents such workers, employers sometimes threaten to call police or immigration authorities and then continue to work immigrants without paying them. Because of the situation of such workers, it is easy for employers to fail to pay full wages and come up with excuses.

Some advocates say the problem is more widespread than is readily visible, since many undocumented workers do not come forward.

According to an Immigration and Customs Enforcement spokesman, the primary focus of the agency is not to find and deport illegal workers, but to prevent employers from knowingly hiring, exploiting and trafficking illegal workers.

Programs similar to the Workers’ Dignity Project exist in other cities, such as Austin, Texas and Long Island, New York.

Advocates for immigrant workers say that such exploitation is not only contrary to basic human rights, but that it also depresses wages, benefits and working conditions for all workers.

Source: The Tennessean, “Immigrants turn to courts when wages aren’t paid: legal, illegal workers are protected from threats, exploitation,” Brandon Gee, 25 Jan 2011.