Unpaid Overtime Archives - Shavitz Law Group

August 10, 2023August 10, 2023

The Two Full-Time Employee Requirement for the Managerial Exemption

Did you know that managers may be non-exempt and entitled to overtime even if they are salaried and even if they are actually performing managerial duties? One common misconception about the FLSA is that any employee in a managerial role is automatically exempt from receiving overtime pay if they are salaried and performing managerial duties. However, this is not always the case, especially when it comes to supervising a limited number of employees.

When a manager carries out essential managerial duties but only supervises a small team, they may not meet the criteria for exemption from overtime pay. The determination of exempt status hinges on factors beyond job titles including the number of employees supervised. A manager must supervise two full-time employees or the equivalent to be exempt. That means two full-time employees each working 40 hours per week. It can also mean four part-time employees each working 20 hours per week. The determining factor is whether the manager is supervising 80 hours of labor per week. Thus, if a store is lightly staffed, then the manager may be misclassified as exempt – again, even if the manager is salaried and performing managerial duties..

For example:

Consider a boutique named “Chic Haven,” specializing in unique and handcrafted fashion accessories. This small store operates with a manager and a single sales associate.

The manager, Alex, is responsible for overseeing the day-to-day operations of the boutique. The duties encompass various managerial tasks such as inventory management, hiring and firing, scheduling , and financial reporting.

The “Chic Haven” manager and sales associate exemplify a scenario where the store operates with a small team, consisting of only one manager and one employee. In this case, while Alex is certainly carrying out managerial duties and exercising decision-making authority, the limited number of employees being supervised—only one—means that Alex is actually a non-exempt employee entitled to overtime.

In conclusion, being called a manager does not automatically equate to being exempt from overtime pay. When a manager’s scope of responsibility involves limited employee supervision such that the manager is not supervising two or more full-time employees or the equivalent (that is, 80 hours of labor) per week, they may be entitled to overtime compensation.

If you have questions regarding overtime, please contact Shavitz Law Group at [email protected].

Under the Fair Labor Standards Act (FLSA), the exemption for managerial positions depends on various factors, including the salary test, duties test, and the requirement that the alleged manager must supervise two or more full-time employees “customarily” and “regularly.” This blog will focus on the importance of meeting the “customarily and regularly” criterion and its implications for employees classified at exempt managers.

The “customarily and regularly” requirement means that the supervisory duties must be a regular and frequent part of the job, not just occasional or temporary. If, for example, an alleged manager only supervises two or more full-time employees on rare occasions or for brief periods, they might not meet this criterion and thus not qualify for the manager exemption. Importantly, in instances where an employee does not meet the “customarily and regularly” requirement, the employee likely is entitled to overtime for the hours worked over 40 in a work week.

What exactly is ”customary and regular”? Courts have held that if an alleged manager supervises two or more full-time employees 67% of the time, or even as high as 76% of the time, then that is not sufficient frequent for it to be “customary and regular” and the exemption may not apply. Rather, the law indicates that the percentage of time the alleged manager is supervising must be much higher.

Let’s compare two examples to better understand the significance of meeting this requirement:

1. Assistant Manager Smith is classified as an exempt manager; however, Smith only supervises two or more full-time employees twice a year, specifically when the Store Manager goes on vacation. Smith likely would be found to be non-exempt and entitled to overtime because two weeks of supervising two or more full-time employees is not “customary and regular.”

2. Assistant Manager Jones is classified as an exempt manager and supervises two or more full-time employees every week, except when Jones is attending company training out of town. Jones would likely be found exempt (assuming all of the other criteria are met) and not be entitled to overtime because supervising two or more full-time employees all but two weeks out of the year is customary and regular.

The distinction between these examples is critical. Assistant Manager Jones qualifies for the manager exemption because Jones consistently perform supervisory duties regularly (every week), meeting the “customarily and regularly” requirement. On the other hand, Assistant Manager Smith’s supervisory responsibilities are infrequent and limited to a few specific occasions, making Smith likely ineligible for the exemption and therefore entitled to overtime.

If you have questions regarding overtime or your employment, please contact Shavitz Law Group at [email protected].

August 2, 2023August 10, 2023

Understanding the “Customarily and Regularly” Requirement for the Managerial Exemption under FLSA

July 19, 2023August 10, 2023

Overtime for Drive Time?

Compensable drive time refers to the hours that an employee is entitled to be paid for when traveling between work-related locations, while non-compensable drive time generally encompasses regular commuting and personal errands. The distinction is important because if the drive time causes an employee to work over 40 hours in a work week, then the employee is entitled to overtime if the drive-time is compensable. Thus, an employee’s entitlement to overtime depends on the compensability of the travel, which in turn depends on many factors.

Some specific situations deal with the compensability of pre-shift travel, including:

Employee drives to work in their personal vehicle, load supplies into the company vehicle, and drives to the company worksite:

The time spent loading the company vehicle and driving to the company worksite is compensable, but the drive to the employer’s business is not.

Employee drives to work in their personal vehicle and drives the company vehicle to the worksite:

The drive to the worksite may or may not be compensable, depending on the employer’s requirements and depends on whether the drive is primarily for the employer’s benefit. The drive to the employer’s business in the personal vehicle is not compensable.

Employee drives to work in their personal vehicle, loads supplies in the company vehicle, and is a passenger in the company vehicle while the supplies are driven to the worksite:

The passenger’s time travelling to the worksite would be compensable only if found to be an indispensable part of the job and/or the travel time primarily was for the employer’s benefit. The drive to the employer’s business in the personal vehicle is not compensable.

More generally, drive time is compensable when the travel is directly related to the employee’s job responsibilities and is during their regular work hours. Examples of compensable drive time include:

Worksite-to-Worksite Travel: When an employer requires an employee to travel from one worksite to another during their regular work hours, such as a technician visiting multiple client locations in a single workday.

Client Visits: If an employee needs to travel to a client’s location for a meeting, service, or delivery as part of their job responsibilities.

Off-Site Meetings and Training Sessions: When employees are required to attend conferences, training sessions, or other work-related events held at a location other than their usual workplace.

Special Assignments: If an employee who normally works at one location is temporarily assigned to work at a different location for a specific project or task.

Drive time is generally not compensable where the time employees spend traveling between locations does not directly relate to their job responsibilities. Examples of non-compensable drive time include:

Regular Commuting Time: The time employees spend traveling between their home and their regular workplace is generally not compensable. This includes their daily commute to and from work.

Personal Errands During Commute: If an employee chooses to run personal errands during their commute, such as stopping at the grocery store or dropping off their children at school, this time is not compensable.

Personal Travel Outside of Work Hours: Any travel done by employees for personal reasons outside of their scheduled work hours, even if they are away from their regular workplace, is not considered compensable drive time.

Commuting Between Home and a Temporary Worksite: If an employee’s regular workplace is temporarily relocated to a different location, the time spent commuting between their home and the temporary worksite is usually not compensable.

If you have questions regarding the compensability of drive time or any other overtime questions, please contact Shavitz Law Group at [email protected].

July 1, 2020July 1, 2020

Call Center and Customer Service Representatives: Are You Being Paid for All Time Worked?

Many call center and customer service representatives are not paid correctly. These employees arrive at work before the start of their shift to allow time to boot up their computers, load the necessary programs and software to perform their tasks, and review e-mail correspondence to be ready to take calls. However, many call center and customer service representatives do not start getting paid until they clock in after performing all of these tasks.

Companies often tell these employees not to clock in until they are “call ready.” However, the call center and customer service representatives spend about 5 to 10 minutes each shift working to become “call ready.” They are not paid for this time. These employees often clock out and finish up paperwork while off-the-clock and without being paid. Over the course of a month, this adds up!

The U.S. Department of Labor stated that call center and customer service representatives must be paid for the time spent starting the computer to download work instructions, computer applications, and work-related emails. Some states have even stronger workplace laws protecting these employees.

However, companies still do not comply with the laws and these workers get shorted out of hundreds or thousands of dollars per year.

In addition, many call center and customer service representatives work unpaid time during their training period. Companies often require these workers to study training materials and company policies and procedures at home. Yet, these companies do not pay these workers for this time in violation of the wage laws.

In recent years, our law firm has represented hundreds of Call Center and Customer Service Representatives in unpaid wage cases. We take on the largest companies in America who try to take advantage of our clients.

If you worked in a call center or customer service representative role and want to learn about your rights, please contact The Shavitz Law Group at [email protected] or at 800-616-4000 for a free consultation. We would be happy to assist you in a free consultation to discuss your employment concerns.

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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June 24, 2020June 24, 2020

Automatic Meal Deductions Lead to Automatic Wage Violations

Many workers are surprised to learn that federal law does not require employers to provide meal breaks. Although not required under federal law, the law of many states mandate that meal breaks be provided — requirements that most employers adhere to by providing 30 or 60 minutes for daily meal breaks.

While an employer is not required to pay hourly employees for the time they are on their meal break, if the meal break is unpaid, the employee must be able to take the break without interruption and be fully relieved of all job-related duties. If you are required to sit at your desk while you eat in case the phone rings, interrupted with questions from other employees or supervisors, answer work-related emails while eating your lunch, or otherwise perform work during your break, you must be paid for the entire meal break.

Many employers have policies that require employees to clock out for a pre-determined amount of time each day for a meal break, or automatically deduct a pre-determined amount of time each day from employees’ pay. These policies, intended to save labor costs, often result in unpaid wages because they fail to account for the demands of the job that prevent employees from taking breaks. Automatic meal deductions are particularly susceptible to resulting in unpaid hours because they do not require the employee to actively clock out for lunch, but instead, simply automatically deduct meal periods as part of the payroll process.

If made to keep working while you’re clocked out for meal breaks, or if meal breaks are automatically deducted from your pay without regard to whether you actually take those breaks, you may be owed compensation. For employees who work nine-hour shifts with a one-hour meal period, time spent performing work duties during unpaid lunch breaks is overtime that must be paid at time and a half. Shavitz Law Group is here to help. We can help you recover unpaid wages (if applicable) associated with missed meal breaks. The law requires employers who violate federal wage law to pay the employees attorneys’ fees and costs, so we can represent you without you having to pay any fees or costs at all. Call us today at (800) 616-4000 for a free consultation.

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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April 8, 2020January 26, 2021

Remote Workers Are Entitled to Overtime Pay, Too

4.7 million workers across the United States worked remotely on a regular basis, even before the coronavirus pandemic. Many employees are attracted by the flexibility and freedom that working from home provides. Similarly, remote employment allows employers to save on overhead expenses and reap the benefit of higher employee work satisfaction. Now, as a result of the coronavirus, social distancing, and businesses protecting their workforce, the number of employees working remotely has spiked to all-time highs.

With the onset of the coronavirus, working remotely provides an opportunity for employees to be productive (and not miss a paycheck), but not potentially expose their colleagues while they may be contagious.

However, for employees, there is a downside to working remotely: the feeling that you are always working for – or available to – your employer 24/7/365. This becomes a problem (and a wage violation) when employers don’t track all the hours their remote employees work.

Overtime laws apply to remote workers the same exact way that they apply to on-site employees. Employers are legally required to accurately track the hours of their remote employees and pay them for all hours they work, including paying them at an overtime rate for hours worked over 40 in a week. However, although tracking work time for remote employees is a fairly easy thing to do, many employers don’t track remote employee work time, or they simply pay them for a set number of hours every week (usually 40). As a result, many remote employees working more than 40 hours a week are not paid for all of their work time and are not paid at an overtime rate when they work over 40 hours.

If you work remotely, be sure that your employer has developed a system to accurately track all hours worked, rather than simply paying a set amount of hours. As mentioned above, it is common when working from home that your workday exceeds your set Schedule and to thus work “off-the-clock” hours. To the extent your employer is not properly tracking remote hours worked, call the Shavitz Law Group today at (800) 616-4000 for a free consultation.

YOU EARNED IT, NOW LETS GO GET IT.

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March 18, 2020January 25, 2021

No Time Records: Why You Don’t Necessarily Need Proof to Claim Your Unpaid Overtime

No proof, no problem: We've got your back.

Many employees hesitate to bring claims for unpaid overtime wages because of a fear that they cannot provide proof that they worked the overtime hours that they claim. Especially if an employee is salaried, he or she will often only clock in and out for attendance purposes or may not even have to clock in at all. If they are paid hourly, many employees will work off-the-clock hours with these hours not being reflected in the time records.

Not to fear: The law requires employers to maintain accurate time records for each of their employees. As such, if there is a dispute about hours worked, an employee’s reasonable recollection about the hours he or she worked will be the basis of any claim for unpaid overtime. This means that, even without specific proof, an employee can recover for unpaid overtime wages.

Additionally, even in the absence of any time records, in this digital age, we are regularly able to re-create our clients’ hours worked by developing electronic evidence, which includes the time employees logged onto computers or logged off computers, cell phone records, or records of e-mails, etc. Thus, even in the absence of actual time records, there are regularly other indicators we can develop through discovery with the employer to paint a picture of your typical comings-and-going from work, as well as your pre-shift and post-shift work.

If you have a claim for unpaid overtime wages, please contact us at [email protected] or at 800-616-4000. We would be happy to assist you in a free consultation to discuss your employment concerns.

YOU EARNED IT, NOW LETS GO GET IT.

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March 11, 2020January 26, 2021

Law Firms Can Violate Wage and Hour Laws, Too.

When you think about wage and hour compliance issues, you might overlook an entire group of employers that may be in violation: law firms. While you might assume that attorneys would be in compliance with the law, remember they are businesses, too. As with other businesses, it is not uncommon for law firms to cut corners when it comes to wage and hour compliance.

Law firms, which are understandably concerned with the rights of their clients, also need to look inward and make sure that they are protecting the rights of their own employees to the fullest extent of the law.

Law firms have the same potential pitfalls of any other business. Shavitz Law Group has helped recover damages for law firm employees who have been under-compensated. Areas of concern where employers may fail to properly track the hours of and pay properly non-exempt employees include:

work performed remotely, usually at home, but can include work performed while traveling or commuting;
work performed while monitoring cell phones for calls, texts, and messages at the employer’s request;
improperly classifying employees as exempt when they perform non-exempt work — one common misconception in the legal industry is that paralegals are exempt professionals. Under the law, however, salaried paralegals are still entitled to overtime wages for hours worked in excess of forty per week;
work performed during an unpaid meal break.

If you have any questions about your entitlement to recover unpaid overtime, please call us. Just like any employer, law firms are prohibited from retaliating against any employee who pursues backpay and overtime. Additionally, the law requires employers who violate federal wage law to pay the employees’ attorneys’ fees and costs, so we can represent you without any costs or fees paid by you. Call us today at (800) 616-4000 for a free consultation.

You Earned It, Now Let’s Go Get It.

Gregg Shavitz, Shavitz Law Group, 951 Yamato Rd Ste 285, Boca Raton, FL and 830 3rd Ave, Floor 5, 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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February 28, 2020January 25, 2021

Should You Be Paid for That Break?

The Fair Labor Standards Act (“FLSA”), and many state wage laws, require employers to provide non-exempt employees with a meal break. A bona fide meal break under the FLSA must be for a period of more than 20 minutes, and the employee must be “completely relieved of duty” during the break for the employer to not have to pay the employee for that time.

Many employees are not completely relieved of their duties while on break, because they are required to take their lunch breaks at their work stations. For example, a receptionist required to eat at their workstation to answer the phone in case it rings, or a security guard who stays at their post keeping watch, but taking a few minutes to eat while keeping watch, would not be “completely relieved of duty” and should be compensated for having to be available for work during their meal breaks.

A meal break is different from a rest break, which is less than 20 minutes in duration and is compensable. An employer cannot provide an employee with two separate 15-minute rest breaks but then combine the two breaks and contend the employee took a 30-minute meal break, and therefore should not be compensated. If the employee takes a break of twenty minutes or less, the time remains compensable. In essence, smoking breaks (i.e. short duration breaks of less than 20 minutes) as they are termed are not deductible but are just part of the normal workday and that time has to be paid time.

If you are one of the many employees who have lost wages due to unpaid and untaken breaks, we can help. The law requires employers who violate federal wage law to pay the employees’ attorneys’ fees and costs, so we can represent you without any costs or fees paid by you. Call us today at (800) 616-4000 for a free consultation.

YOU EARNED IT, NOW LETS GO GET IT.

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February 19, 2020January 26, 2021

Are You One of the Millions of Workers Now Entitled to Overtime?

As of January 1, 2020, the U.S. Department of Labor’s (“DOL”) new final rule becomes effective. The new rule makes an additional 1.3 million American workers eligible for overtime pay under the Fair Labor Standards Act (“FLSA”). The rules allow workers to make more money in a salary and still be eligible for overtime. Specifically, the new rule:

– raises the “standard salary level” from the currently enforced level of $455 to $684 per week (equivalent to $35,568 per year for a full-year worker). This means a salary of $35,568 or less per year will not be a bar to overtime.

– raises the total annual compensation level for “highly compensated employees (HCE)” from $100,000 to $107,432 per year. This means a salary of $107,432 or less per year will not be a bar to overtime.

This is the first time in 15 years that the DOL has raised the thresholds. Therefore, many workers who have been working during this period may assume that they still are not eligible for overtime because they make too much in their salary.

The DOL acknowledges that the changes will make millions more American workers eligible for overtime. Are you one of them? If you are affected by this threshold change or if you feel that you are owed overtime, call the Shavitz Law Group. We can seek back-pay for time worked within the past 3 years under federal law and longer under certain state laws. Contact Shavitz Law Group at (561) 447-8888 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 Let’s Go Get It.

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