The minimum wage for employees of many federal contractors will increase to $10.20 per hour effective January 1, 2017. President Obama’s Executive Order 13658 established a minimum wage for contractors working under four major categories of federal contracts:
Procurement contracts for construction covered by the Davis-Bacon Act (DBA);
Service contracts covered by the Service Contract Act (SCA);
Concessions contracts, including any concessions contract excluded from the SCA by the Department of Labor’s regulations at 29 CFR 4.133(b); and
Contracts in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public.
Effective January 1, 2015, the minimum wage was set at $10.10 per hour, and that wage has seen five cent increases over the last two years. On September 20, 2016, the United States Department of Labor announced the increase for 2017. The notice of wage increase and an updated workers’ rights poster can be found here: Minimum Wage Increase
Frequently, employers will refuse to issue a final paycheck to a terminated employee. Usually, this occurs because the employee has caused damage of some kind (property or financial) to the employer. The Eleventh Circuit Court of Appeals recently held that holding a final paycheck does not convert an overtime-exempt employee into a “non-exempt” overtime-eligible employee. Pioch v. IBEX Engineering Svcs., No. 15-10845, 2016 WL 3254138 (11th Cir. Jun. 14, 2016).
In Pioch, the employee was paid by the hour, but was exempted from overtime by the FLSA’s “computer employee exemption.” Over a four-year period, the employee collected $147,230 in per diem payments for time allegedly traveling from IBEX’s main office in Nevada to a location in Florida. In actuality, the employee had purchased a house in Florida, was not traveling from Nevada and was not eligible for the per diem payments. Thus, IBEX withheld his pay for the last three weeks prior to his resignation.
The employee sued and argued that withholding his pay converted him to a non-exempt, overtime-eligible employee during the three weeks his pay was withheld. After an extensive analysis, the Eleventh Circuit held that an employee’s exempt status “does not evaporate simply because the employer withholds a final paycheck.” Pioch, 2016 WL 3254138 at *6.
In short, holding a final paycheck does not magically confer overtime eligibility on an employee. Nevertheless, this does not mean that employers are immune from all types of liability. In fact, the Eleventh Circuit’s Pioch opinion repeatedly emphasized that Pioch might possess a breach of contract claim against his employer. Such a claim is resolved in state court instead of federal court.
Judge Virginia Emerson Hopkins recently certified a potential class action by store managers seeking overtime compensation from Cato women’s clothing stores. SeePrince v. Cato Corp., No. 1:14-CV-1708-VEH, 2016 WL 2997217 (N.D. Ala. May 25, 2016). Cato contends that its store managers are “bona fide executive, administrative or professional” employees who are exempt from overtime requirements.
The request for a class action was made by Virginia Prince, a store manager at Cato’s Anniston, Alabama store. Ms. Prince claims that she was required to work at least 45 hours per week, but that the overwhelming majority of her time was spent performing manual labor instead of bona fide managerial work. A special provision of the Fair Labor Standards Act regulations permits an executive or administrative employee in the retail sector to spend up to 40% of their time on non-administrative duties without loss of the overtime exemption.
Ms. Prince asked Judge Hopkins to certify a nationwide class of Cato store managers, but Judge Hopkins declined. Instead, she certified a class solely within the Northern District of Alabama consisting of current and former store managers from September 17, 2011 to the present.
Judge Hopkins’s certification is merely the first step in the process for a potential class action. Cato obviously denies that its managers are entitled to overtime and will have the opportunity to de-certify the class at a later dater. Nevertheless, Prince provides a cautionary tale for employers. Large employers with employees performing the same duties in similar locations are potentially subject to class actions for overtime compensation under the FLSA.
In a recent overtime dispute, an employer attempted to use an employee’s LinkedIn profile to establish that the employee was exempt from payment of overtime under the Fair Labor Standards Act. SeeTrammell v. Amdocs, Inc., No. 2:15-cv-01473-RDP, 2016 WL 3618367 (N.D. Ala. Jul. 6, 2016). Unfortunately, Judge David Proctor was forced to send the case to trial.
In Trammell, Scott Trammell worked as a Project Management Office Professional for Amdoc, Inc. and was paid more than $100,000.00 in salary in 2014. He sued for overtime after leaving Amdoc’s employment in 2015. Amdoc attempted to have the case dismissed at the summary judgment stage and argued that Trammell was exempt from overtime because he was a highly-compensated employee. But, the highly-compensated employee exemption only applies if the employee customarily and regularly performs exempt executive, administrative or professional duties.
Trammell flatly denied that he performed executive, administrative or professional duties. Instead, he claimed that he merely generated reports for his supervisor and responded to e-mail correspondence. So, Amdoc pointed to Trammell’s LinkedIn Profile which suggested that his duties included: management of seven employees and two applications; monitoring and coordinating team projects; providing end to end project management; managing team overload; providing overall delivery of multiple projects; and, coordinating, tracking and reporting IT releases.
In an entertaining opinion, Judge Proctor was forced to send the case to trial because the Federal Rules of Civil Procedure required him to believe Trammell’s denials of responsibility — even when contradicted by the LinkedIn Profile. The difficulty of Judge Proctor’s decision is found in the following passage:
Would an employer really pay someone like him over $100,000 to merely answer emails and generate reports? (If so, where can recent college graduates in the IT field obtain an Amdocs application for employment?) It might even be said that his denial lacks credibility. But it emphatically is the [jury] who must say that, not this court ruling on a motion for summary judgment.
Frequently, my clients think that every managerial employee is exempt from overtime. That assumption is dangerous and can lead to liability for overtime — particularly under the new overtime rule which will go into effect on December 1, 2016.
In determining eligibility for overtime, the first hurdle is not the duties performed by the employee. Instead, look at their salary first. Under the current regulations, almost every employee who earns a salary less than $23,660 is entitled to overtime — regardless of whether their duties might make them executive, administrative or professional employees under the Fair Labor Standards Act. On December 1, 2016, that salary threshold will increase to $47,476. Here’s a link to a previous post about the new rule: Breaking News: Final Overtime Rule Released
So, if you have a manager making a salary less than $47,476, you will probably be required to pay them overtime starting December 1, 2016. I strongly encourage you to conduct an audit/review of all of your employees to determine if they will be entitled to payment of overtime under the new rule.
Yesterday, the United States Department of Labor released its highly-anticipated (and much-debated) final rule regarding overtime compensation. Here is a link to the Department of Labor’s Fact Sheet on the new rule: DOL Fact Sheet on New Overtime Rule
Prior to release of the rule, every prognosticator was trying to predict the new threshold salary for exempt employees. Currently, that salary is $23,660. Under the new rule, the threshold salary is $47,476. That is a massive increase for employers.
The new rule becomes effective on December 1, 2016. On that date, employees with an annual salary of $47,476 or less must be paid overtime. I previously advised that employers should begin planning for the new rule here: What Would Saban Do? Preparation for DOL’s New Overtime Rules If you have not done so, it’s time to conduct a wage audit of your employees and make difficult decisions regarding salaries.
A recent case from the Southern District of Alabama demonstrates the substantial costs that can be associated with violations of the Fair Labor Standards Act. SeeMiller v. Spence, No. 14-0468-CG-B, 2016 WL 2350142 (S.D. Ala. May 3, 2016).
The Defendants in Miller were the owners of seafood restaurants along the Alabama Gulf Coast, including The Shrimp Basket, Mikee’s Seafood, and The Steamer. The plaintiffs were employed as servers at the restaurants and sued for unpaid compensation in the form of wages and overtime. Among other things, the servers claimed that they were not paid the federally-mandated minimum wage because a portion of their tips were contributed to a tip pool that included non-tipped employees.
Ultimately, the defendants agreed to pay $260,326.54 as part of a settlement for back wages, liquidated damages and class representative incentive payments. Additionally, the restaurant owners agreed to pay the plaintiffs’ attorneys $130,000.00 in legal fees.
In Miller, Senior United States District Court Judge Callie Granade was asked to approve the settlement. Judge Granade approved the payment of $260,326.54 to the servers, but requested additional information before approving the payment of attorneys’ fees.
Nevertheless, Miller provides an important warning to employers about the dangers of violating the Fair Labor Standards Act. Notably, there are attorneys who represent employees and specialize in NLRB violations. The same attorneys represented the plaintiffs in Miller and the plaintiffs in the Landry’s “Throwed Rolls” case which I discussed previously: “Throwed Rolls” and Attorneys’ Fees: The High Costs of FLSA Violations
Ingram is the gift that keeps on giving, because it also demonstrates the danger of attempting to avoid overtime requirements by labeling employees as “subcontractors.” I previously wrote about that danger here: How “Independent” Are Your Independent Contractors?
In Ingram, Passmore Towing & Recovery called its tow truck drivers “subcontractors” and hoped that it would not be required to pay those drivers overtime. But, Judge Kallon found that Passmore offered no evidence to refute the drivers’ assertion that they were actually employees. As required by the FLSA, Judge Kallon analyzed six factors to determine that the drivers were employees — the first factor being “control.” He found: “Passmore hired the drivers, set their commission, disciplined the drivers, paid their wages, and hired managers to supervise their work. Additionally, Passmore had the opportunity to unilaterally change the conditions of employment,which it did on multiple occasions.”
Ingram provides a cautionary tale for employers. Ignoring the law and attempting to use the label of “subcontractor” are a recipe for disaster.
On March 29, 2016, United States District Court Judge Abdul Kallon entered an order finding that ignorance of the law could not excuse an Alabama employer’s failure to pay overtime to its employees. SeeIngram v. Passmore, No. 2:14-cv-00004-AKK, 2016 WL 1212570 (Mar. 29, 2016).
In Ingram, Passmore admitted that he failed to pay overtime to office workers. Based on that admission, the Fair Labor Standards Act would generally require that the employees receive compensatory damages equal to the unpaid overtime, plus “an additional equal amount in liquidated damages.” But, the FLSA also gives courts discretion to deny liquidated damages if an employer establishes that it failed to pay overtime based upon a good faith belief that its conduct complied with the FLSA.
So, Passmore asked Judge Kallon to exercise his discretion and deny liquidated damages to the office workers. Passmore asked “the court to excuse his failure due to his purported lack of knowledge and his belief that the FLSA did not apply to him.” Judge Kallon flatly rejected that argument, finding that Passmore would be liable if he “had the opportunity to acquire the knowledge through reasonable diligence.” In Judge Kallon’s words: “In ascertaining an employer’s good faith, ignorance of the law is insufficient to establish the employer’s reasonableness.”
Ingram demonstrates the importance of conducting a regular inventory and review of your employees to ensure that all eligible employees are receiving overtime. Courts will not be lenient on employers who could have paid overtime, but failed to do so.
Most employers know that salaried employees are not entitled to overtime, and, as a result cannot generally have their salary reduced based upon missed work hours. If an employer regularly cuts the pay of a “salaried” employee based upon missed work hours, courts may find that the employee is actually an hourly employee entitled to overtime under the Fair Labor Standards Act. Nevertheless, there are always exceptions to every general rule. In certain circumstances, the pay of exempt employees can be reduced. Here are a few examples:
If an employer has a policy that provides compensation for loss of salary caused by illness or childbirth, salary can be reduced if the employee exhausts his/her leave bank.
In appropriate circumstances, salary can be cut based upon violations of work rules.
If the employee fails to perform any work in a work week, the employer is not required to pay salary.
These exceptions and others depend upon the facts of each case. Consult with your attorney before docking the pay of an exempt employee.