Articles Posted in Overtime

Personal trainers everywhere work hard to provide many of us with the best services as possible. They deserve every penny of their paychecks and maybe even some pay for putting in overtime. Unfortunately, recently there has been an alarming number of personal trainer lawsuits because the trainers claim they were not properly paid wages or overtime they are entitled to under the Fair Labor Standards Act. If you or someone you care about has been denied proper wages and overtime pay because of being  misclassified or other unethical business practice, you need to speak to a wage and overtime pay lawyer with The Higgins Firm. We know you work hard for your paycheck and we will do everything we can to make sure that you are compensation for all the hours you have worked.

In this particular case, several personal trainers that worked at Gold’s Texas, a franchisee group of Gold’s Gym International, claim that they were misclassified as exempt from the Fair Labor Standards Act or FLSA.  The issue is whether payments received by the trainers constituted commission under 29 U.S.C. 207(i), a provision in the FLSA. Gold’s Texas denied it violated any provisions of the FLSA in an answer filed to the complaint in February 2014.

The class action lawsuit is seeking a jury trial to award actual and liquidated damages for the unpaid overtime wages under the Fair Labor Standards Act, liquidated damages as provided by the FLSA,reasonable attorney’s fees under the FLSA, pre-judgment and post-judgment interest as provided by law, all costs of court and any other entitled relief.

When we all go to work each day and work hard for our money, we expect that the companies we work for will pay us the proper wages that we earned. We also expect that if we see something wrong with a companies’ practices and report it that we will not be retaliated against for doing the right thing. Unfortunately, many companies do not pay employees what they are owed or engage in practices that are illegal so they can make more money.   If you or someone you know has been terminated for blowing the whistle on a business or if you have not received wages that you worked for, you should speak to an employment and wage lawyer at The Higgins Firm. We will listen to your claims and see to it that you get compensation that is rightfully yours for the hours you have worked.

According to this lawsuit two former personal trainers of the fitness club chain,  Lifetime Fitness, Jared Steger and David Ramsey, claim that their former employer has become one of America’s fastest growing fitness chains by deliberately and intentionally underpaying and deceiving its employees in a predatory manner which leads to excessively high turnover rate and widespread dissatisfaction with working conditions.  The lawsuit was filed against Lifetime Fitness after the two personal trainers were terminated. According to their complaint, the reason that was stated for Steger’s termination was because of his failure to turn in an “inventory count” on time, and Ramsey was allegedly fired for “discussing a co-worker’s employment status” the following day.     However, Steger and Ramsey,  assert management at the Lifetime Fitness club, fired them in retaliation for trying to notify them of the problems stemming from the handling of client payments and memberships. They claim that their terminations represent a violation of Whistle-blower laws that forbid employers from firing workers who refuse to engage in what they believe to be illegal activities. The trainers allege they were pressured to take part in credit fraud and deception.

The suit notes Steger, in April 2013 following repeated attempts to persuade his manager to stop the alleged practice and refund clients’ and former clients’ money, notified Lifetime Fitness management that “multiple clients” had been double-billed and electronic funds transfers had been altered so money could be drafted from clients’ credit cards and bank accounts without authorization. The lawsuit is also seeking compensation for unpaid wages and overtime because  Steger and Ramsey claim they were each owed more than $80,000 in unpaid back wages, including unpaid regular wages and overtime, for work they performed for Lifetime Fitness.  They allege the company has a policy of requiring personal trainers to perform unpaid work before and after supervising workouts with clients, and to meet with clients and management off the clock. They claim trainers often would work 70 to 90 hours a week, but not be paid for the majority of those hours. Trainers were also pressured by management to not clock in at certain times to avoid “taking pay away from managers” under a draw system. Steger and Ramsey accuse Lifetime Fitness of violating labor and wage laws, as well as the state’s Whistle-blower statue, and retaliatory discharge.  Since these actions potentially involved other personal trainers who worked for Lifetime Fitness, the trainers are asking the court to let them notify other potential plaintiffs and allow the suit to proceed as a class action.

According to a recent story from the AP, the state of Tennessee has stopped taking new inmates at its newest facility in Hartsville, TN after only 4 months of operation. “We’re holding off on sending more prisoners until CCA has an opportunity to increase its recruiting efforts and staffing,” Tennessee Department of Correction Assistant Commissioner Tony Parker told the AP.

This is certainly not the first time CCA has been in trouble for overworking its employees; in 2014, CCA paid 8 million ($8,000,000.00) to settle a lawsuit for back wages for employees at its facility in California City, CA. The company also paid $260,000 to settle overtime claims in November, 2013 for shift managers at its facilities in Kentucky. The settlement was unsealed – over CCA’s objections – after Prison Legal News (PLN), a project of the Human Rights Defense Center, intervened in the case to make the settlement public.

Also, in August 2009 the U.S. District Court for the District of Kansas unsealed a $7 million settlement agreement in a nationwide class-action wage and hour lawsuit against CCA. The suit, brought under the Fair Labor Standards Act, alleged that CCA had required some employees to perform work duties “without compensating them for all such hours worked.” Specifically, the company was accused of not paying correctional officers and other employees for pre- and post-shift work that included roll calls, obtaining weapons and equipment, attending meetings and job assignment briefings, and completing paperwork.

After a string of business friendly rulings, the Supreme Court has handed a victory out to the working men and women.  In this case, employees at the meat processing facility, Tyson Foods, filed a lawsuit in 2007 claiming that they were entitled to overtime pay and damages because they were not paid for their time spent putting on and taking off protective equipment and walking to their work stations. Tyson Foods challenged this almost 5.8million class action lawsuit and on March 22, 2016, the U.S. Supreme Court ruled in favor of the employees in a six to two ruling by Justice Anthony Kennedy. Thus ruling upheld a 2014 appeals court decision in favor of the employees.

This was one of three  closely watched class action cases to come before the court during its current term. In January, the court ruled six to three against advertising firm Campbell-Ewald, saying a lawsuit could proceed over claims the company violated a federal consumer law by sending unsolicited text messages on behalf of the U.S. Navy.   In the Tyson case, the court was considering an objection to the use of statistics to determine liability and damages. Critics in the business community have described such use of statistics as “trial by formula” that violates defendants’ due process rights, instead of assessing each claim individually for the more than 3,000 current and former employees who are suing.

This ruling was also decided in part because of a 1946 Supreme Court precedent that said plaintiffs can rely on averages in such situations to determine claims under the federal Fair Labor Standards Act. Justice Kennedy stated that, “While corporate defendants may urge adoption of broad and categorical rules governing the use of representative and statistical evidence in class actions, this case provides no occasion to do so.”  He also stated that, “The ruling does not undercut the court’s major 2011 ruling in favor of Wal Mart Stores Inc., which made it harder to bring class action cases.

GREAT NEWS FOR HOME HEALTH WORKERS! The Court of Appeals has decided that the previous exemption of the Fair Labor Standards Act for third-party employers of certain home health care workers no longer applies. The decision Home Care Association of American v. Weil has made it possible for the government to enforce minimum wage and overtime pay laws for a home health care workers that used to be exempt from such benefits. The decision means that there could be potential change in this industry because it make third-party home health care employers to take another look their pay practices and how they will conduct their businesses in the long-term.

The Fair Labor Standards Act except with specific exemptions requires employers and businesses to pay minimum wage and time and a half for overtime pay benefits to all of their workers. One of these exemptions previously applied to “companionship services” provided by “domestic service” workers who provide basic care for the elderly, ill, or disabled in their homes. A domestic service worker used to be exempt from these benefits no matter what company or business employed these workers. Domestic services increasingly have been provided by employees of third-party health care providers.

The Department of Labor which enforces laws and regulations under the Fair Labor Standards Act has issued a rule that third party employers could no longer invoke the “companionship services” exemption for its domestic service employees. Health care companies challenged this new rule by the Department of Labor and had it overturned. The District of Columbia District Court overturned the rule stating that the Department of Labor could not overturn the exemption because it has operated that way for decades. Then on August 21, the DC Court of Appeals reversed that decision stating that the Department of Labor has the authority to make changes to the exemption such as excluding third party providers.

This year the United States Department of Labor announced its 2015 Misclassification Initiative aimed at combatting the misclassification of employees as independent contractors. While this has been a priority for the DOL for the last several years, they seem to be getting really, really serious of it lately. And for good reason- a June 2013 Treasury Inspector General for Tax Administration (TIGTA) report stated: “The misclassification of employees as independent contractors is a nationwide issue affecting millions of workers that continues to grow and contribute to the tax gap.” A 2009 TIGTA report on misclassification said the lost tax revenue from this misclassification is more than $1.6 billion dollars annually.

Today, about 50 million workers – one-third of the workforce – are classified as independent contractors, freelancers, or temporary workers. This number is predicted to grow to 60 million workers – 40 percent of the workforce – by 2020. These workers do not receive benefits and safeguards such as unemployment insurance, workers’ compensation, and retirement benefits.

On July 15 of this year, the DOL issued a memo setting out how the Fair Labor Standards Act (FLSA), the federal law governing minimum wage and overtime among other things, should be applied in making the determination if an employee is truly an “independent contractor” or would be considered an employee under the FLSA and entitled to the benefits it guarantees. And they could not have been more clear as to the expansive coverage of the FLSA. 

According to the United States Department of Labor, minimum wage would need to  $11.00 per hour to equal the same spending power to equal its buying power of the late 1960s. Currently the minimum wage is only $7.25 and for tipped employees, it remains $2.13. It has in fact, not been increased since 1991. $2.13 in 2105 is equivalent in spending power as $1.21 in 1991.

So many workers in America rely on their tips to survive. Servers, delivery drivers, bartenders, hotel workers, etc.  Unfortunately for these workers, the law often allows for employers to pay them at a rate much lower than the standard minimum wage. The Fair Labor Standards Act permits an employer to take a tip credit toward its minimum wage obligation for tipped employees equal to the difference between the required cash wage (which must be at least $2.13) and the federal minimum wage. Tipped employees are those who customarily and regularly receive more than $30 per month in tips.

One thing that needs to be clear to all tipped employees: “Tips are the property of the employee”.

Whether you are going to a forty an hour a week job that you have been employed in for many years or whether you are working at an internship for maybe a little pay and some more experience the Fair Labor Standards Act and minimum wage laws still need to be followed. Unfortunately, many companies and businesses find ways around paying their employees what they deserve and what they should be paid by law by not properly logging the hours they work, telling them to take parts while not on the clock or classifying improperly so they are exempt from overtime pay laws and requirements. If you or someone you work with feel that you have been improperly paid the wage you earned or were not paid properly for overtime hours, then you should speak to a Tennessee employment and overtime pay lawyer with the Higgins Firm. We will work with you to see to it that you get the compensation you deserve for the hard work you have done.

According to this lawsuit, the plaintiffs worked as much as forty hours a week for free on programs like the Howard Stern Show and other Sirius programs. This was a violation of their rights under the Fair Labor Standards Act and state minimum wage laws. The company stated that it still believes its internships were legal, but settled to avoid costly litigation according to reports. Representatives for either side of the lawsuit were not available for comments.

This proposed settlement comes a month after the New York-based 2nd U.S. Circuit Court of Appeals discussed the applicable test to determine whether unpaid internships are legal in lawsuits against Fox Searchlight Pictures Inc. and Fox Entertainment Group Inc. In this case involving unpaid internships, Sirius XM Radio Inc. has agreed to pay as much as $1.3 million to settle litigation by some 1,800 ex-interns. The Sirius settlement must still be approved by a judge before it is finalized.

If you are working over forty hours a week and are not currently eligible for overtime pay or wages, you may be in luck. The Department of Labor and the Obama administration are on the verge of changing an overtime pay rule that would raise the current overtime threshold of $23,660 per year to $50,440 per year. This would extend overtime pay to millions of American employees. If you feel that you have wrongly denied overtime pay, you should speak to a Tennessee overtime pay and employment lawyer with the Higgins Firm. We will fight for you to help you get the compensation that is rightfully yours.

Currently, the law states that any salaried worker who earns below the threshold must receive overtime. The current threshold of $23,660, or $455 per week, lies below the poverty line for a family of four. The new rule would raise that to $50,440 or $970 per week, which would be closer to the median household income. This rule change would mean that more American workers would qualify for overtime pay. The current overtime threshold is not indexed for inflation and only been updated once since 1975. It only covers twelve percent of salaried employees. If the threshold is raised it would bring it back in line with the 1975 threshold, after inflation.

The current rules for overtime pay exclude white collar workers with titles such as “executive, administrative and professional” from receiving overtime pay. This means that an office worker or secretary might be exempt from overtime pay. Many businesses and companies get around paying their employees overtime pay by giving them nominal supervisory responsibilities. Although the Department of Labor had stated the new rule would make changes to this definition allowing more workers to qualify for overtime pay benefits, the proposed regulation did not include this change.

So you have a wonderful dinner at your favorite restaurant and you would like to show your gratitude to your fabulous waiter. As such, you give him or her a generous tip. Unfortunately, these hard working waiters or waitresses do not always get to keep their tip. This is because many restaurants have what is known as a “tip pool”. Not only may this be surprising to the customer but just think how that poor hard working waitress feels. Regardless, it is important for the employees to know that not all tip pools are legal. If the tip pool is found to be illegal the employee may be entitled to a full hourly wage for hours worked, liquidated damages and attorney’s fees.

The difference between a legal and illegal tip pool depends on a few factors. These factors are often intertwined with the employer’s legal ability to take a “Tip Credit” to pay the lower hourly minimum wage of $2.13 per hour. Specifically, for a tip sharing program to be legitimate the tips can only be shared among employees that regularly and customarily receive tips. This would include employees such as bartenders, counter staff, waiters, waitresses and sometimes hostesses. It would not include cooks, managers, chefs or owners. This would be mainly those employees that aren’t paid at the $2.13 minimum wage.

Taking this a step further, for the employer to be allowed to take a credit for the tip and reduce the hourly wage to $2.13 an hour the following must occur:

1. The employer must notify the specific amount of cash wage the employee will receive. This cannot be less than $2.13 per hour.
2. The tip credit that the employer claims can’t exceed the actual amount of the tip received by the employee 3. The employee must be allowed to keep all tips earned except for the amount to be legally contributed to the tip pool 4. The tip credit will not apply to the employee unless the employee has been informed of these tip credit provision. It is important to note that this notice can be oral or written.

If an employer has set up an illegal tip pool or has not complied with the foregoing tip credit provisions they may have to pay the difference between the $2.13 an hour paid and the current minimum wage. The employee would also be allowed to keep all tips earned.

Also, if the employer decides to use the tip credit provision they must be able to show that the employee earned a minimum of $7.25 an hour. In other words, if you take the $2.13 an hour paid and all tips earned by an employee during a week and divide that amount by the number of hours worked then the average wage should equal or exceed $7.25 an hour.

Finally, do not forget about overtime. If you work over 40 hours per week you are still entitled to 1.5 times your hourly pay for the hours worked over 40. This is probably one of the most overlooked FLSA violations around.
Continue Reading

American Association of Justice Badge
Justia Badge for
Million Dollar Advocates Forum Badge
Best of the Bar Badge
AV Preeminent Badge
Contact Information