Articles Posted in Wage and Hour Laws

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BJ’s Wholesale Club and the representatives of a class of BJ’s Wholesale employees reportedly informed a federal court in Massachusetts earlier this month that they had reached a settlement agreement on the employees’ claims that BJ’s failed to pay them overtime. The class of BJ’s employees included loss prevention managers, asset protection managers, and personnel managers. The lawsuit alleged that BJ’s misclassified these managers as exempt from overtime. As a result of this misclassification, the employees had often worked more than 40 hours per week without overtime pay.

In addition to claims under the federal Fair Labor Standards Act (FLSA), the lawsuit also alleged violations of various state laws, including Maine’s wage and hour laws. The court still must approve the settlement but, if it does, it appears as though BJ’s employees in Maine will receive a share of the $2.7 million.

This settlement illustrates that employers do not have the final say on which employees are and are not entitled to overtime pay. Generally speaking, all employees are entitled to overtime pay unless their employer can show that they fit into one or more well-defined exemptions. If you believe that your employer has misclassified you as an exempt employee, who is not entitled to overtime pay, you should contact an experienced employment lawyer to learn more about your rights.

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A federal court in New York has found that Fox Searchlight Pictures unlawfully failed to pay interns who worked on the movie Black Swan. Under federal and New York law, an employer may not refuse to pay interns who work as employees. The court applied six criteria set forth by the U.S. Department of Labor to determine whether, considering the “totality of the circumstances,” the interns were actually employees. Those criteria are as follows:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

2. The internship experience is for the benefit of the intern;

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Thumbnail image for USCurrency_Federal_Reserve.jpgRep. Scott Hamann, D-South Portland, has introduced a bill that would raise the minimum wage in Maine from $7.50/hr to $8.50/hr. The bill would also require the minimum wage to rise on an annual basis at the same rate as inflation. Maine’s AFL-CIO as well as other unions favor the bill while the Maine Chamber of Commerce opposes it.

“If we put money in the hands of the people most likely to spend it and most likely to spend it locally, this drives up consumption in Maine’s economy,” Hamann said. “If we increase consumption and demand for goods and services, businesses will hire more to keep up with demand, which is a net win for the state of Maine.”

“Our economy just doesn’t support that kind of wage an hour increase,” said Peter Gore of the Maine Chamber of Commerce. “From an economic standpoint, raising it by a dollar and indexing it annually, putting that element on automatic pilot, that’s just a bad idea.”

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lumber yard worker.jpgThis week, Maine began to use a new uniform legal definition for who is an “independent contractor” and who is an “employee.” This distinction is important for purposes of determining whether a worker is entitled to workers compensation, unemployment insurance, overtime pay, and other benefits. While employees are entitled to these benefits, independent contractors are not. “Under the old rules, a business could have a worker classified as an employee under worker’s comp but as an independent contractor for unemployment taxes,” said Maine Labor Commissioner Jeanne Paquette. “That made no sense, so the administration and many interested parties from all sides came to the table and worked out a better definition that both the Department of Labor and the Worker’s Compensation Board will apply consistently,” she explained.

Additionally, the new law imposes harsher penalties on employers who intentionally misclassify workers as independent contractors. According to Department of Labor spokesperson Julie Rabinowitz, an employer who misclassifies workers as independent contractors could now face a $20,000 fine from the Department of Labor and the Workers Compensation Board. This will help deter businesses from misclassifying workers in order to gain an unfair advantage against law abiding businesses that correctly classify workers as employees and provide them with legally required benefits like workers compensation insurance and overtime pay.

According to the Maine Department of Labor, the new criteria, effective December 31, 2012, that establish a worker as an independent contractor are as follows.

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Today, the U.S. First Circuit Court of Appeals affirmed a trial court’s holding that Starbucks violated Massachusetts’ tip sharing law. A group of current and former Starbucks baristas (employees who serve customers) brought this class action against Starbucks because Starbucks required them to share the money deposited in tip jars with shift supervisors. Under Massachusetts law, an employee may not share in a tip pool unless he has “no managerial responsibility.” The court held that while shift supervisors perform mostly the same duties as baristas they also have some, limited, managerial responsibilities. But, the Court held, “‘no’ means ‘no'” in the Massachusetts law and, as such, since shift supervisors had some managerial responsibility, Starbucks could not give them any of the tips from the tip jars.

The First Circuit affirmed the trial court’s decision to award actual and liquidated damages exceeding $14,000,000 to the class of current and former baristas who worked in any of the approximately 150 Starbucks stores in Massachusetts.

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Today, the First Circuit Court of Appeals, the federal appeals court that covers Maine and other New England states, held that a class action against the Caritas Christi hospital network could go forward. The plaintiffs in the case allege that Caritas failed to pay them, and employees like them, for work performed during meal breaks, for work performed before and after shifts, and for time spent at training sessions.

Caritas successfully persuaded the trial judge to dismiss the lawsuit because it argued that the complaint the plaintiffs filed was not detailed enough. The First Circuit rejected this argument recognizing that in this case, like most employment cases, the employer likely possessed information that the plaintiffs will need to prove their case. The court also recognized that it is sometimes difficult for plaintiffs to predict what facts a judge will find essential to a valid complaint. So, the court advised the trial judge, when the case comes back before him, to provide the plaintiffs an explanation of what information must be added to the complaint.

This case is an example of a growing trend. Employers have increasingly tried to get cases against them thrown out on technicalities rather than fighting them on the merits. If you have an employment case, you should seek representation from an experienced employment lawyer who is familiar with these tactics and has experience fighting them.

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A class of former interns that worked for the Charlie Rose Show, a TV show that appears on PBS, have filed a class action lawsuit against Charlie Rose and the company that produces his show. The interns allege that their internships involved work that employees, not interns, are supposed to perform. In return for their work, they received no pay.

It is clearly illegal not to pay employees wages since there are federal and state minimum wage laws. There is an exception to the minimum wage requirements for interns but that exception is narrow. In order for an employer to avoid an obligation to pay interns, several criteria must be met. Those criteria, under federal law, are as follows:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

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Today, the Connecticut Department of Labor (CDOL) announced that in January and February, 2012, it issued “Stop Work orders” to 19 companies working on construction projects in Connecticut. One of these companies was Deanes, Inc., a Maine based company that was working on a rest stop on I-95 in Milford, Connecticut. “Stop Work orders,” according to CDOL, “are levied against companies that misclassify workers as independent contractors with the intent of avoiding their obligations under federal and state employment laws covering such matters as workers’ compensation, unemployment taxes and payroll reporting.”

CDOL has collected $250,000 in civil penalties as a result of the Stop Work orders it issued between January 26 and February 23, 2012.

If you believe that your employer has misclassified you as an independent contractor, you should contact an experienced employment lawyer to learn about your rights. By misclassifying you as an independent contractor, your employer may be depriving you of wages by not paying you overtime; or it may be putting your livelihood at risk by not providing you with workers compensation insurance coverage.

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Today, the California Attorney General’s office settled an ongoing lawsuit against a group of car washes for more than $1,000,000. According to the California AG, the case arose because investigators found the car washes denied employees minimum wage and overtime, failed to pay wages to employees who quit or were terminated, and denied employees rest and meal breaks. Investigators also found that the car washes created false employee time records.

“Workers at these car washes were taken advantage of by unscrupulous employers who illegally denied them the pay and benefits they earned,” said California Attorney General Kamala D. Harris. “The resolution of this case will allow workers to receive the pay they are owed.”

Like California, Maine has laws that entitle employees to minimum wages, overtime pay, rest breaks, and payment of unpaid wages when the employee resigns or is terminated. If you believe your employer is violating your right to any of these things, you should contact an experienced employment lawyer to discuss whether you have a viable claim.

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Yesterday, President Obama announced that the U.S. Department of Labor (DOL) had enacted a new regulation that will require home care workers to be paid minimum wage and overtime pay. Home care workers are workers who care for elderly and infirm patients in the patients’ own homes. Up until this new regulation came into effect, under federal law, home care workers could be paid less than minimum wage and forced to work more than 40 hours per week without overtime pay because they were treated just like baby sitters.

President Obama said that DOL enacted this new regulation because paying these home care workers less than minimum wage was “just wrong.” Mr. Obama said “I can tell you firsthand that these men and women, they work their tails off, and they don’t complain. They deserve to be treated fairly. They deserve to be paid fairly for a service that many older Americans couldn’t live without. And companies who do pay fair wages to these women shouldn’t be put at a disadvantage.”

If you are a home care worker that receives less than minimum wage and/or no overtime pay, you should contact an experienced employment lawyer to learn about your rights.

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