Tennessee Employment Lawyer Blog

When Tennessee workers and any workers across the country put in extra hours and time at their jobs, they expect to be paid for their time and effort. Unfortunately, many times employers fail to pay their workers overtime pay or give them a special exception title, so that they can avoid paying them overtime. However, overtime pay is required by law and if you do not get the pay you deserve, you could be entitled to compensation and should contact a Tennessee Employment Overtime Pay Attorney.

In this specific case, the United States Court of Appeals for the Second circuit ruled that pharmaceutical sale representatives who visit doctor’s offices to deliver drug samples and deliver pre-scripted messages describing their employer’s pharmaceuticals are not exemptions to overtime pay because they should not be considered by federal or state law to be “outside sales” or in “administrative” positions and are entitled to overtime pay under federal law. This also applies to Tennessee employees.

This decision was extremely significant for Novartis overtime and other overtime lawsuits concerning pharmaceutical sales representatives across the country. This decision by the Second Circuit “not only reversed the trial judge's dismissal of the Novartis Reps' overtime case, but has now held, as a matter of law, that Novartis owes its Reps overtime pay”. This decision is also very important because it is the first federal appeals decision that says that “outside sales” and “administrative” overtime exemptions does not apply to pharmaceutical sales representatives.

A case was made by Norvartis that the representatives are “outside salespersons” and should be covered by the exemptions. However, this decision made it clear that when a pharmaceutical representative goes to a doctor’s office to deliver messages about the employer’s drugs that “in no sense” is that representative making a sale to the doctor according to federal and state overtime laws. The Court decided that these representatives are promoting a product to the doctor which will be sold by another person and are not making a sale.
The Court also decided that these representatives were not “administrative” exemptions because the representatives have no say or role in planning Norvartis marketing strategy, they do not write up the pre-scripted core messages, and they are required by their employer to visit a doctor’s office a specific number of times and are required to promote a certain drug a specific number of times, and finally hold a specific number of promotional events required by Norvartis. This means they are not allowed to make their own judgments or have control over their duties on the job which means they are not “administrative” exemptions to overtime laws.

The Court after this case and its decision also stated the two main reasons for overtime laws. These are “to prevent the evil of overwork and to spread work among as many employees as possible.”

Continue reading "Pharmaceutical Sales Reps Entitled to Overtime Pay Rules Federal Appeals Court" »

Many of us across the country and even right here in Tennessee are struggling to make ends meet in these hard economic times. We all work the best we can to pay our bills and to provide for our loved ones. That is why it is unfortunate and even frustrating to hear about cases in which employees may not have been given the proper amount of pay for the time they work. However, this happens every day and workers at Bank of America are no exception.

The lawsuit against Bank of America was filed on June 4, 2010 and resulted in one class action lawsuit. Current and former bank tellers and other hourly employees for the last three years have claimed that Bank of America violated the federal Fair Labor Standards Act and state laws in California, Florida, Texas, Washington, and Kansas for not paying overtime for the employees that worked more than forty hours a week.

Instead of overtime pay, the bank was giving the employees paid time off or instructed them not to record more than forty hours on their time cards. Employees also claim that in some cases, the bank modified the tellers recorded hours to eliminate overtime. The workers in the class action lawsuit want back pay, attorney fees, and other damages for a total of more than $100 million, which would affect more than 180,000 employees at the bank’s branches.

When we go to work every day and put in the extra enough and time, it is our right to get properly paid for that time. If you or someone you love has been improperly paid for the hours they have worked or if you suspect other employment problems and issues, we encourage you to contact one of our overtime payment and employment attorneys right away. We will listen to your case and help make sure you get the pay you deserve for the work you have done.

Continue reading "Workers of Bank of America sue for Overtime Pay" »

Anytime a worker is required or volunteers to work any overtime whether it be 5 minutes or an hour, the company they work for are required to give them extra pay for the time they work. Unfortunately, there are many times where companies will find ways around this requirement or simply will not pay their workers for the time. If this happens, anywhere in the country, even here in Tennessee, then you may be able to file a lawsuit in order to receive the pay that you deserve.

In Las Vegas, Harrah’s Entertainment which owns properties such as Planet Hollywood, Paris, Bally's, Bill's, Flamingo, O'Sheas, Imperial Palace, Caesars Palace, Rio and Harrah's, is facing another class action lawsuit filed by Nevada workers. The lawsuit alleges that Harrah’s Entertainment required workers to arrive ten to fifteen minutes before their shifts were supposed to start but did not pay them for this extra time. This may not seem like much, but if it’s added up can amount to thousands of dollars a year and in some cases millions.

The Nevada workers were required to arrive early because of pre-shift meetings which may include pep talks from managers, and reminders about job standards and expectations. Station Casinos is facing an overtime lawsuit that involves this pre shift meeting issue. That case was filed last year in state court, but is being put on hold while the company deals with bankruptcy issues.

The lawsuit against Harrah’s says that “the employee clocked in early to attend daily management meetings where she received instructions from previous shift supervisors.” The Harrah’s spokeswomen, Jacqueline Peterson, said that “we will vigorously defend ourselves against any accusation that alleges we are in violation of the federal Fair Labor Standards Act.”
This case is a little unusual because Daprizio filed the lawsuit while still working for Harrah’s and not while being laid off.

This seems to show that people are not willing to let these wage and overtime violations go, especially not during a recession when every bit of pay counts.

Continue reading "Pre-Shift Meetings without Extra Pay Leads to Class Action Lawsuit against Harrah’s Entertainment" »

Tennessee Employment Law Blog explores recent wage and hour lawsuits in this entry to inform Tennessee hourly wage workers about common means employers use to underpay employees.

Times are tough. Tennessee businesses and employers across the nation are meeting tough times with layoffs and cutting costs. But when employees’ pay is illegally cut, some employees have chosen to get tough back and are able to recover unpaid wages or unpaid overtime by working with employment lawyers on wage and hour lawsuits.

Wage employees in Pennsylvania are taking on Aramark Corp., the Philadelphia-based food-service giant, that allegedly cheated its workers out of overtime pay and the lunches and breaks required by federal workplace law under the Fair Labor Standards Act (FLSA). This week several Aramark wage workers filed a summons in Philadelphia Common Pleas Court in what may become a class-action lawsuit. Their attorney estimates damages of up to $2M for the 3,000 workers employed to provide service Aramarak’s stadiums

Previously in April of last year, Aramark settled, without admitting wrongdoing, a similar case involving 419 workers. The present filing entered as evidence a sample pay stub that demonstrates, according the plaintiff’s attorney, the company’s deliberate design to make it difficult for workers to determine their amount of hours worked.

Some allegations center on the unpaid overtime for when an employee worked in two separate locations for Aramark. Additionally, 30 minutes was automatically deducted from hours worked, even though half-hour lunches were not always available to employees. For some workers, not receiving payment for these automatically deducted 30-minute lunches meant they were being paid less than minimum wage.

Continue reading "Illegal Wage & Hour Pay Practices Cause of Numerous Lawsuits" »

In recent news, a Landscape company in middle TN that the U.S. Department of Labor believes to have “failed to ensure that their employees received the minimum federal wages and overtime payments as required by the Fair Labor Standards Act”, has agreed to pay $450,000 in back wages to eighty-one employees. According to the news release and other reports, the company, Peach Tree Maintenance Inc. employed both local and foreign workers. Twenty-four of the employees were hired based on the Federal H-2B program that permits employers to hire foreign workers to meet a temporary need for non-professional, and nonagricultural workers”. Also, according to the Department of Labor eighty-one of these employees “were due a total of $433,995 in back wages because they were either paid a flat rate daily without overtime or paid straight time for all hours worked over forty per week”. Twenty-four of these employees were also required to pay their own transportation costs from Guatemala which leads to a reduction in their pay below the federal minimum wage.

During the investigation, it was realized that these employees were an additional $15, 481 in back wages. Employers are required under FLSA to pay minimum wage, overtime payment, and to keep all accurate records of all hours worked for a two-year period. The FLSA requirements to pay minimum wage and overtime are not discritionary. According to their website, Peach Tree Maintenance Inc is located in Lascassas, Tenn., and provides services to the Middle Tennessee area.

Continue reading "Tennessee Landscape Company gets a $450,000 back wages bill" »

A collective/class action case that was filed in Tennessee Federal Court on behalf of migrant farm workers has been settled. Although the settlement still must be approved by the Court, the defendant has agreed to pay 2.75 million to more than 2,200 workers. The suit claimed that the workers were short changed their wages, including overtime pay. The defendant maintained their innocence in the settlement.

Hopefully, these type of cases send a message to all employers that employees must be treated fairly and that overtime is not an option. Overtime is the law and put simply it is both unethical and illegal to deny overtime to employees who have earned it.

As Tennessee Law Blog foresaw in the early months of last year in Tennessee Wage and Hour Cases on the Rise, wage-and-hour lawsuits have continued to explode across the county. In one report by a national employment law firm, non-government wage and hour settlements in 2009 grew 44% over 2008’s lawsuits.

Settlements for wage and hour lawsuits also increased in 2009. For those filed in federal court under the Fair Labor Standards Act (FLSA), lawsuit settlement amounts rose from $253 million in 2008 to $364 million in 2009 for the top 10 wage and hour cases of those years. The greatest growth in wage and hour lawsuits was along the coasts – California, Washington New Jersey, New York, Massachusetts – though the trend was upward in other states as well.

Continue reading "Wage and Hour Lawsuits Increase Nationwide" »

Over the past year our office has pursued more overtime cases than ever before. I am not sure if people are just becoming more aware of their rights or if more employers are trying to increase profits by denying employees the overtime they have earned.

As most people know, if you are eligible for overtime you are entitled to be paid one and 1/2 times your normal pay rate for all time worked over 40 hours in one week. There are some common scams that we are seeing the employers use to avoid paying overtime. Here is one we see often:

Giving the employee an empty management title and paying a salary. Sometimes an employer will give an employee a bogus title such as manager or supervisor. This is done so the employer can pay a specific salary each week no matter how many hours are worked. To determine if this is a scam or legitimate it is important to look not at the title but what the work duties. In other words, if you are called a manager but do not have any management type powers you may be entitled to overtime pay. Common questions to ask are: Do you have the right to set schedules? Do you have the power to hire and fire? Do you supervise employees beneath you? If the answer is no then you may be entitled to back pay and overtime.

Continue reading "Tennessee Overtime Cases on the Rise" »

A $2.6-million lawsuit was filed in Los Angeles Superior Court on Tuesday alleging a California car wash paid its employees less than minimum wage and denied overtime. The lawsuit was filed by the state’s attorney general against the Auto Spa Express, its owner, and its present incorporation as Sunset Car Wash.

This CA lawsuit is reminiscent of our reportage earlier this year in Unpaid Wages and Unrecorded Hours Subject of Local Nashville, TN Car Wash Workers… blog.

Continue reading "Car Wash Overtime Lawsuit Seeks $630K in Back Wages" »

Current and former Massachusetts Wal-Mart employees will receive $40 million in unpaid wages from the world’s largest retailer, Wal-Mart Stores Inc. This class-action wage and hour lawsuit is the largest in the history of the Bay State.

The cause of the wage lawsuit, which appears pervasive in the company by the numerous wage and hour lawsuits settled last year in December (read the Tennessee Law Blog’s coverage of last year’s Wal-Mart wage settlement) was the company’s denial of rest and meal breaks, refusal to pay overtime, and the manipulation of time cards to lower employees’ pay.

As many as 87,500 employees will receive a payment of between $400 and $2,500, the average check being for $734. Any Wal-Mart or Sam’s Club employee paid wages between working in the period between August 1995 and December 2009 is entitled to payment.

Continue reading " $40M Returned to Hourly-Paid Wal-Mart Employees
in State’s Largest Wage and Hour Settlement" »

With the widespread availability of cell phones, blackberries, e-mail, fax machines and other modern day tools; we are tied closer to the workplace than ever before. We can be called into work at a moment’s notice and many companies required employees to be available for what they call “on call” time. So when should an employee be compensated for time they have spent “on call”? The answer will depend on each specific case, however the Department of Labor and the United States Supreme Court in interpreting the FLSA (Fair Labor Standards Act) have given us some guideposts to help in this determination.

The key question in determining whether or not an employee should be compensated for time spent “on call” is whether the employee is “waiting to engage” or “engaged to wait”. In other words, how much freedom does an employee have while “on call”. Under the Fair Labor Standards Act and the corresponding rulings by the Department of Labor and the United States Supreme Court, “An employee who's required to stay so close to the workplace in time and distance that they have very little freedom to use the time as her own has been "engaged to wait," and the on-call time constitutes "hours worked" for purposes of the FLSA.”

Some other questions that should be considered when determining if an employee should be compensated include:
• What's the geographic or response-time limitation placed on an on-call employee? A narrow geographic or time restriction, such as staying within two miles of the home or workplace or being required to respond within 10 minutes, is indicative of a person “engaged to wait” and therefore entitled to compensation.
• How often is the employee actually required to respond to calls while on call? If it's virtually certain that the employee will be required to respond to a call every time he's on call, the on-call duty is more disruptive to his nonworking time and is more indicative of a person “engaged to wait” and therefore entitled to compensation
• Are employees on call 24/7, or only certain hours per week or month, and can they switch their on-call time with colleagues if necessary for their personal purposes? If there is a set schedule for times when you are on call and you are allowed less freedom to change these times, this may be indicative of a person “engaged to wait” and therefore entitled to compensation.
• Does the “on-call” obligation significantly limit the employee’s use of the time for personal purposes? The less freedom an employee has while “on call” increases the likelihood that a person is “engaged to wait” and therefore entitled to compensation, however if the employee is able to use the on-call time for substantial personal projects and affairs, then court may find this time to be non-compensable under the FLSA.

Also, remember, if your “on call” time is compensable and increases the hours you spend at work beyond 40 hours, you may also be entitled to overtime pay as well. However each case is different and there are very few “bright line” rules as to when an employee is owed money or overtime pay for time spent on call.

Continue reading "Should I be paid for “on-call” time?" »

The Fair Labor Standards Act (FLSA) sets the workweek at 40 hours before overtime wages must be paid for most wage-based employment. It also requires that, at minimum, a minimum wage be paid. Recently, various employers have faced complaints that full wages due have not been paid, which may be a symptom of companies tightening their belts--illegally--at their employees’ expense. Fortunately, FLSA provides the legal framework by which to recover unpaid wages.

One such recent unpaid wages lawsuit is against the pizza chain Papa John's. Filed in Missouri, employees claim the pizza giant violated federal law by failing to reimburse employees for expenses they incurred while delivering pizzas. The result was that delivery drivers would make less than minimum wage. (see previous Tennessee Law Blog article on Hooters workers lawsuit for more on how work-required costs can lead to being paid less than the legally required minimum wage.)

In California, a worker has sued United Parcel Service., the Atlanta-based shipping giant, claiming some $100 million in overtime wages have been withheld from its account managers across the country. According to this lawsuit, UPS required its account managers to work up to 60 hours a week but claimed that these managers were not eligible for overtime pay. The overtime lawsuit also alleges UPS does not keep accurate track of hours its employees work and fails to provide mandated meal and break periods.

Also recently filed class action lawsuits include those against AutoZone and Wells Fargo Bank for allegedly fraudulently categorizing employees as exempt from overtime. They did so, according to the unpaid overtime lawsuit, by the unfortunately common practice of creating titles that do not fit employees' work duties to avoid paying overtime wages for work performed in excess of 40 hours a week or 8 hours a day. Allegations were also made that certain Wells Fargo employees were required to work off-the-clock.

The Fair Labor Standards Act allows for recovery of unpaid wages, plus any related legal fees. Recovered wages could cover a two- or three-year period, depending on whether a violation is deemed willful. You do not need to be a current employee of a company breaking wage law to pursue a wage recovery lawsuit.

Find out more on Tennessee wage lawsuits by visiting our Employment Law pages or by completing our unpaid overtime/underpaid wage inquiry form.

The number of overtime cases my office has received has greatly increased over the past year. I am not sure why but I can only assume it is a product of the slow economy. Whatever the reason it is important for workers to remember that they are entitled to at least one and one-half their regular pay rate after 40 hours of work in a workweek. Of course, most employees know this so to get around the law we see employers avoid overtime pay by creative means. We have seen employers make workers clock out early or not clock in until a certain time, clock out for meetings and other work events, but most common is to classify an employee as a supervisor and pay them a salary.

When an employee is an actual supervisor or manager they can be paid a salary and do not receive overtime pay. However, to be a manager the person must really have supervisor duties. In other words, the work duties will include decision making duties such as setting schedules, telling other employees their job duties, hiring, firing, etc. A manager generally does not expect to routinely perform the same Jobs that the workers they supposedly manage do. If a person has been classified as a manager but is really just doing the same job as every other hourly worker they may be entitled to unpaid overtime pay.

As an example, recently we had a Tennessee case involving a fast food restaurant. Almost every employee in the manager was given the title of assistant manager. There were more "managers" than hourly workers. There was even one young man who did nothing but fry cook duties but he was also called "assistant manager". This was an obvious attempt by the employer to increase their profits by cutting there labor costs. However, it was illegal and the workers were being exploited.

The wage and hour laws can be complicated. Often people just want to know if they have a claim or not before confronting the situation. If you just are not sure please feel free to contact our law firm.