Call Center Representatives Score Big Win

Call Center Representatives Score Big Win
Call Center Representatives Score Big Win

In a case handled by attorneys at the Shavitz Law Group, Call Center Representatives recently won a major victory at the Tenth Circuit Court of Appeals.  The Call Center Representatives performed work each shift while starting up their computers and loading the necessary computer programs to perform their duties.  

The employer did not pay for this work which happened on every shift.  The employer argued that it did not have to pay for such work.

The Court ruled that the Call Center Representatives are entitled to pay for these tasks, scoring a major victory for the workers in the case.

The case will soon head back to the lower court to determine the amount of damages owed to the workers.

Shavitz Law Group is proud to represent the Call Center Representatives in this case.

If you experienced any unpaid wage issues, please contact us at 800-616-4000 and we can provide a free case evaluation.

Are Nurses Entitled to Overtime?

nurses overtime Shavitz blog

nurses overtime Shavitz blog

Over the past several years, particularly during surges in COVID and COVID-related illness and hospitalizations, our nations nurses are working longer hours than ever.  Many salaried nurses do not receive extra pay for working more than 40 hours in a week, as their employers classify them as exempt from the overtime requirements under the federal law governing overtime pay – the Fair Labor Standards Act, or “FLSA.”  However, not all nurses qualify for this exemption, and many nurses are being denied overtime pay they have earned because their employer treats them as exempt even when they are not.

Which nurses are exempt from overtime?

Many employers treat their nurses as exempt, relying on a provision of the FLSA that says employers do not have to pay overtime pay to employees who are “Learned Professionals.” To be a Learned Professional, the employee must:

    •  be compensated on a salary or fee basis at a rate not less than $684 per week;
    •  perform work, as their primary duty, requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
    • The advanced knowledge must be in a field of science or learning; and
    • The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

The Wage and Hour Division of the Department of Labor states that Registered Nurses are generally properly compensated as exempt and not entitled to receive overtime pay, as long as they are paid a salary of at least $684 per week, and that their salary does not change depending on the number of hours they work.

However, just because a nurse is an R.N. does not mean he or she is automatically exempt from the overtime requirements. To be exempt, the nurse’s duties still must require the consistent exercise of discretion and judgment. In other words, their duties must require them to regularly use their unique R.N. skills and qualifications. If a licensed practical nurse or similar healthcare employee could perform the same job duties that the R.N. performs, then the exemption will not apply even if the nurse happens to be an R.N.

As such, LPNs and other similar health care employees generally do not qualify as exempt learned professionals, regardless of work experience and training, because possession of a specialized advanced academic degree is not a standard prerequisite for entry into such occupations. Those nurses are entitled to overtime pay whether they are paid a salary, hourly, or on a fee basis.

What do I do if I feel I should be getting paid overtime, but my employer does not do so?

Shavitz Law Group is here to help. If you have questions about whether your employer is violating federal requirements, or if you have any other employment concerns, please do not hesitate to call us for a free consultation at (800) 616-4000, or visit us at www.shavitzlaw.com for a free, no obligation review of your circumstances and consultation regarding your rights.

Truck Drivers – Are You Being Paid Overtime Wages?

Truck Drivers Overtime Pay

Truck Drivers Overtime Pay

Many companies treat truck drivers and delivery drivers as independent contractors and do not pay them overtime wages. In recent years, courts have held that drivers are employees who are entitled to the protections of state and federal wage laws. That means that many drivers are eligible for overtime pay, health benefits, and workers’ compensation insurance.

Companies like FedEx and Amazon have paid substantial settlements to resolve independent contractor misclassification claims. Some companies exercise so much control over the drivers like setting quotas on deliveries and restrictions on schedules that the drivers are effectively employees. In such situations, courts have found drivers, who were treated as independent contractors by the companies, to be employees who are eligible for protection under state and federal wage laws.

If you worked as a driver and were treated as an independent contractor, please contact the Shavitz Law Group at [email protected] or 800-616-4000. We are available for a free consultation to discuss your rights.

Employment Discrimination: Not Receiving the Same Earnings or Promotions as Your Co-workers?

employment advancement opportunities

employment advancement opportunities

Discrimination in the workplace does not always occur in the same way. While discrimination can come in more blatant forms: i.e. an employer chooses a less-qualified coworker for a promotion over a more-qualified minority worker, discrimination can also occur in more subtle and latent ways. One such way in which discrimination can occur is if an employer makes earning or advancement opportunities less accessible to minority and/or female employees. For example, if an employee is in sales, do they have the same access to prime leads, well-established accounts, or more affluent territories for prospecting?  If the employee is a store manager that is evaluated on the store’s relative financial performance, do they likewise have equal opportunity for assignment at the higher performing store locations?

These acts of discrimination are not always so obvious. Luckily, federal law protects workers from discrimination, both in terms of blatant discrimination and latent discrimination. Particularly, federal law protects workers from discrimination on the basis of race, sex (i.e. gender identity, pregnancy, and sexual orientation), national origin, religion, age, disability and genetic information (i.e. family medical history).

If you have experienced either blatant or latent discrimination in your workplace, please give us a call at the Shavitz Law Group, (800) 616-4000 or email us at  [email protected]

Employers Rethink Mandatory Arbitration

Mandatory Arbitration

Mandatory Arbitration

Recently, there has been an important trend in employment law: some employers are no longer requiring there employees to agree to mandatory arbitration. This change has several important benefits for employees. One, employees get to bring their cases in court, where they have the right to a jury (this is not the case in arbitration). Two, most arbitration agreements contain a class waiver, which means that employees have to bring their claims in arbitration individually and cannot sue their employer in a class or collective action. In court, employees can pool their resources and seek relief as a group in a class or collective action.

There are a few takeaways here:

• If employees already have signed arbitration agreements, they should check with their employer to see if the agreements are still in effect.
• If an employer is still using and enforcing arbitration agreements, employees can still challenge their validity and enforceability.
• If the employer’s arbitration agreement is valid and enforceable, employees can still pursue their claims in arbitration. Even if there is a class waiver, employers sometimes will not enforce it if faced with multiple individual claims which it must defend.

Shavitz Law Group is here to help. If you have questions about whether your employer is violating federal requirements, or if you have any other employment concerns, please do not hesitate to call us for a free consultation at (800) 616-4000, or visit us at www.shavitzlaw.com for a free, no obligation review of your circumstances and consultation regarding your rights.

YOU EARNED IT, NOW LETS GO GET IT.

Gregg Shavitz, Shavitz Law Group, 951 Yamato Rd Ste 285, Boca Raton, FL and 800 3rd Ave, Suite 2800, New York, NY. Lawyers licensed in states including FL, NY, NJ, and TX. The choice of a lawyer is an important decision and should not be based on advertisements alone.

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Biden Administration Rejects Attempt to Change Independent Contractor Rules and Leaves Economic Realities Test In Place

independent-contractor-employee

In its last weeks, the Trump administration adopted regulations which would make it easier for workers to be classified as independent contractors.  Those regulations never took effect. Now the Biden administration has rejected them, opting instead to keep the economic realities test.

The proposed but not implemented regulations would have allowed employers to exempt themselves from minimum wage and overtime laws if their workers were considered independent contractors under a new test whose factors favored such a finding.  Had it passed, more workers would not have been covered by a number of laws, simply because they would not been considered employees.  Such laws would have included not only the Fair Labor Standards Act governing overtime and minimum wage, but also state laws such as workers’ compensation.  These workers also would not have been eligible for many benefits, including health insurance, and could not participate in 401k plans.

The current law which will remain in effect applies a multi-factor test to determine if a worker is an employee or an independent contractor.  In announcing the decision to keep the existing economic realities test, the administration emphasized that federal law favors giving the broadest interpretation possible to the definition of an employee.  This approach favors workers being classified as employees, thereby entitling such workers to the protections of federal law and benefits only available to employees.

If you have questions relating to the use of company-issued email or computers, or any other employment-related matter, contact Shavitz Law Group  at (800) 616-4000 or email us at [email protected]

Gregg Shavitz, Shavitz Law Group, 951 Yamato Rd Ste 285, Boca Raton, FL and 800 3rd Ave, Suite 2800, New York, NY.  Lawyers licensed in states including FL, NY, NJ, and TX.  The choice of a lawyer is an important decision and should not be based on advertisements alone.

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Employment Myths: The Contents of Company-Issued Email Accounts are Private

It is common for employees to have company-issued email addresses and computers from their employers — which has especially been the case during the coronavirus pandemic when many employees are working from home.  This raises an important question: should an employee have an expectation of privacy when they use their company-issued computers or email addresses for personal reasons?  

Generally, the answer is no. Although employees may feel an employer’s ability to view their personal activities is a violation of their privacy, the fact is that the company-issued email address and computer are the employer’s property, and the employer has the right to monitor the activities in which an employee engages while using them.  Therefore, the employer has the right to search and review files saved, web search history and email activity from the company-issued email address and on the company-issued computer.  

Indeed, with respect to email, many employers maintain monitoring systems in their email servers to monitor employee productivity, illegal activity, or other improper uses.  Employers may also track websites visited by employees to limit the amount of non-work-related activity that occurs in their computer systems.  Some employers also implement “acceptable use policies” which specify the activities in which an employee can be engaged on company-issued computers or communications that can be sent or received in company-issued email addresses.  

Ultimately, the best practice for employees to refrain from engaging in personal tasks or communications on company computers. 

If you have questions relating to the use of company-issued email or computers, or any other employment-related matter, contact Shavitz Law Group  at (800) 616-4000 or email us at [email protected]   

Gregg Shavitz, Shavitz Law Group, 951 Yamato Rd Ste 285, Boca Raton, FL and 800 3rd Ave, Suite 2800, New York, NY.  Lawyers licensed in states including FL, NY, NJ, and TX.  The choice of a lawyer is an important decision and should not be based on advertisements alone.

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More Salaried “Managers” Are Eligible for Overtime

The common misconception that all salaried employees are not eligible for overtime is a hard one to overcome. Two factors determine whether a salaried manager is entitled to overtime: (1) the amount of the salary; and (2) the primary duties. Focusing on the first requirement – called the salary-basis test — several states raised the minimum threshold for a salaried employee to be eligible for overtime, effective 2021. Currently the federal minimum salary level is $35,568 annually. That means that “managers” making less than this amount satisfy the salary-basis test threshold and may be eligible for overtime, depending on their duties.

The Biden administration is seeking to raise this minimum threshold, which would affect workers nationwide. However, several states have raised the minimum threshold on their own, including Alaska, California, Colorado, Maine, New York, Pennsylvania, and Washington – all effective in 2021.
By increasing the salary for overtime-eligible employees, more workers are entitled to overtime. If you are a salaried employee making less than $35,568, or if you live in one of the states enumerated above, and believe that your duties are similar to those of the overtime-eligible, hourly employees with whom you work, please contact SLG.

Shavitz Law Group is here to help. If you have questions about whether your employer is violating federal requirements, or if you have any other employment concerns, please do not hesitate to call us for a free consultation at (800) 616-4000, or visit us at www.shavitzlaw.com for a free, no obligation review of your circumstances and consultation regarding your rights.

YOU EARNED IT, NOW LETS GO GET IT.

Gregg Shavitz, Shavitz Law Group, 951 Yamato Rd Ste 285, Boca Raton, FL and 800 3rd Ave, Suite 2800, New York, NY. Lawyers licensed in states including FL, NY, NJ, and TX. The choice of a lawyer is an important decision and should not be based on advertisements alone.

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“Sidework” by Tipped Employees = Full Minimum Wage!

Employers typically are permitted to take a “tip-credit” for tipped employees. This allows employers to pay employees who receive tips to pay less than the federal or state mandated minimum wage. However, employers cannot take advantage of the tip credit for all work performed by tipped employees.

Employers frequently require restaurant servers to spend significant time performing “sidework” instead of waiting on customers. Examples of “sidework” include: rolling silverware; washing dishes, cooking and preparing food, cutting fruit, restocking condiments, and cleaning the restaurant. Federal courts have regularly held that when servers spend more than 20% of their time performing these tasks, they should be paid the full minimum wage of $7.25/hr. for this time and not the “tipped minimum wage” of $2.13/hr. As one court explained, “an employee who spends more than twenty percent of their hours performing non-tipped, related work, can be found to have ceased to be a tipped employee and become a dual-jobs employee such that they must be paid full minimum wage for hours spent performing those duties.” Williams v. Bob Evans Rests., LLC, 2020 U.S. Dist. LEXIS 145852, at *33-34 (W.D. Pa. Aug. 13, 2020).

If you are a tipped employee who performs “sidework” 20% or more of your working time, contact SLG.

Shavitz Law Group is here to help. If you have questions about whether your employer is violating federal requirements, or if you have any other employment concerns, please do not hesitate to call us for a free consultation at (800) 616-4000, or visit us at www.shavitzlaw.com for a free, no obligation review of your circumstances and consultation regarding your rights.

YOU EARNED IT, NOW LETS GO GET IT.

Gregg Shavitz, Shavitz Law Group, 951 Yamato Rd Ste 285, Boca Raton, FL and 800 3rd Ave, Suite 2800, New York, NY. Lawyers licensed in states including FL, NY, NJ, and TX. The choice of a lawyer is an important decision and should not be based on advertisements alone.

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Not Paid Overtime Wages? How Far Back Can You Sue For Damages?

Employees who are the victims of unfair wage practices often wonder how much they can claim in damages.  Under the Fair Labor Standards Act, which is a federal law that applies to minimum and overtime wage claims, employees can sue for claims arising within the past two years.  If an employee can prove that the company willfully violated the law, then they can sue for damages arising within the last three years.

This “willfulness” issue is a big part of any litigation involving unpaid wage claims because an employee could receive an additional year’s worth of damages if they can prove a willful violation of the law.  You may be wondering what does “willfulness” mean and how can an employee prove it.   An employee just needs to show that an employer knew or should have known that it was violating the law.  Employees can prove willfulness if the evidence shows that the employer did not look into the law or whether the employer was complying with the Fair Labor Standards Act.

As you can see, willfulness is a fact-specific issue and varies by case.  Some employers are more proactive in their compliance measures and others are not.  It is important to aggressively pursue evidence relating to the willfulness issue because significant wages and damages for the employees can be at stake.

Given these two or three year time constraints, it is important to speak with an attorney promptly so your claims do not expire.  Please contact the Shavitz Law Group, P.A. at 800-616-4000 or [email protected] if you were the victim of unfair wage practices and would like a free evaluation of your legal claims.

YOU EARNED IT, NOW LETS GO GET IT.

Gregg Shavitz, Shavitz Law Group, 951 Yamato Rd Ste 285, Boca Raton, FL and 800 3rd Ave, Suite 2800, New York, NY.  Lawyers licensed in states including FL, NY, NJ, and TX.  The choice of a lawyer is an important decision and should not be based on advertisements alone.

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