Fair Labor Standards Act in Georgia

Tips Only Pay is Illegal


Charles R. Bridgers : September 10, 2012 8:22 am

Some employers hire employees (usually waiters, waitresses and/or exotic dancers) on a tips-only basis.  When challenged, they often attempt to label these workers as “independent contractors”.  Courts tend to find, however, that the employer was merely trying to fly below the FLSA radar.  Employers who take this approach are often found to be liable for the full minimum wage (i.e., no application of the tip credit) overtime pay, liquidated damages and attorneys’ fees and costs.

If you have questions about the Fair Labor Standards Act, call the FLSA experts at DeLong Caldwell Bridgers & Fitzpatrick, LLC, Charles Bridgers and Kevin Fitzpatrick, at (404) 979-3150 for a free consultation.

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Common Misperception: FLSA coverage requires 15 employees


Charles R. Bridgers : September 1, 2012 8:19 am
Some employers mistakenly believe that they must employ fifteen people before the overtime rules apply to them.  Coverage under other federal civil rights statutes, such as Title VII of the Civil Rights Acts of 1964 and 1991, requires fifteen employees.  Coverage under the FLSA, however, is not dependent on the number of employees.  We have successfully brought overtime cases where there were as few as two employees.  That can be a very expensive way for an employer to learn about the FLSA.
If you have questions about the Fair Labor Standards Act, call the FLSA experts at DeLong Caldwell Bridgers & Fitzpatrick, LLC, Charles Bridgers and Kevin Fitzpatrick, at (404) 979-3150 for a free consultation.
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Auto-Deducting Breaks


Charles R. Bridgers : August 24, 2012 8:18 am

The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, record-keeping and youth employment standards for workers in the private sector and government.  Covered non-exempt workers are entitled to overtime pay of at least 1.5 times regular pay if they work more than 40 hours per week.

Auto Deducting Lunch and Other Breaks.

Many employers track employee work time through the use of computerized systems.  Some employers program their computers to deduct a one hour lunch period each day, whether or not the employee actually takes a lunch break of that duration or any lunch break at all.  If you are not actually relieved from duty during an auto-deducted lunch break, the auto- deducted time should be added back in in order to determine if you have cleared the forty hour weekly overtime threshold.  If the employee is never allowed to take a lunch break and the time is nevertheless auto-deducted, the employer may face substantial exposure for backpay, liquidated damages and attorneys’ fees.

Reality trumps under the FLSA. If you work through a break, you must be paid for it.

If you are an employer or an employee and have questions about the Fair Labor Standards Act, call the FLSA experts at DeLong Caldwell Bridgers & Fitzpatrick, LLC, Charles Bridgers and Kevin Fitzpatrick, at (404) 979-3150 for a free consultation.  For more information, check out our publication,  Are You Entitled to Overtime Pay?

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DOL Enforcement Actions in Atlanta Show Same Trends as in Georgia


Charles R. Bridgers : April 16, 2012 9:27 am

From a DOL press release:

“An ongoing enforcement initiative conducted by the U.S. Department of Labor focused on the restaurant industry in Massachusetts has uncovered significant violations of the minimum wage, overtime and record-keeping provisions of the Fair Labor Standards Act. To date, investigations by the Boston District Office of the department’s Wage and Hour Division have found $1,307,808 in back wages due to 478 employees of multiple establishments. In addition, the division now is assessing liquidated damages, payable to employees, when employers are found in violation.

. . . .

Our investigations found that several restaurants violated the FLSA by paying employees flat salaries for all hours worked without overtime pay, failing to combine hours worked at multiple locations for overtime purposes, paying incorrect overtime rates to tipped employees, making illegal deductions from employees’ wages and failing to keep accurate records of employees’ hours," said George A. Rioux, the division’s district director in Boston. "Even more serious, our investigations found an emerging trend of misclassifying restaurant workers as independent contractors in order to avoid minimum wage, overtime and record-keeping requirements of the FLSA."

We see the same problems in Georgia. Managers and Owners can be  held individually liable for violations of the FLSA. We can review your policies and procedures to insure that you stay within the law.

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E.D. New York Affirms that Legal Resident Status is Irrelevent to the FLSA


Charles R. Bridgers : April 9, 2012 10:58 am

In agreement with strong 11th Circuit (the U.S. Court of Appeals that covers Georgia) precedent,   the Court in Enriquez v. Cherry Hill Market Corp. approved a collective action notice that specifically informed potential opt-ins that  they may be “owed payment” even if they were “paid in cash and regardless of their immigration status.”  The FLSA protects all workers regardless of immigration status.

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Twelve Common Errors in Overtime Pay: Commission Only Pay Plans


Kevin D. Fitzpatrick, Jr. : April 2, 2012 1:31 pm

The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, record-keeping and youth employment standards for workers in the private sector and government.  Covered non-exempt workers are entitled to overtime pay of at least 1.5 times regular pay if they work more than 40 hours per week.

Another common problem area:

12. Commission-Only Pay Plans

Sales employees, mortgage brokers and other employees often work on a commission-only pay formula.  If you make no sales in a week; you will make no money.  Employers who pay on this basis risk FLSA exposure if a commissioned employee (other than an “outside salesperson”) earns less than $7.25 for each hour worked in any given week or if the commissioned employee works more than 40 hours in a week.  FLSA exemptions are always defined by what you do, not how you are paid. Even commission paid employees are eligible for the overtime pay premium for hours worked over forty in a given workweek.

If you are an employer or an employee and have questions about the Fair Labor Standards Act, call the FLSA experts at DeLong Caldwell Bridgers & Fitzpatrick, LLC, Charles Bridgers and Kevin Fitzpatrick, at (404) 979-3150 for a free consultation.  For more information, check out our publication,  Are You Entitled to Overtime Pay?

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De Minimis Work and Constructive Knowledge


Michael Caldwell : April 1, 2012 10:32 am

A recent Seventh Circuit case, Kellar v. Summit Seating Incorporated, addressed both de minimis overtime and the requirement that an employer know or should have known that an employee was working uncompensated overtime.

The de minimis doctrine (“De minimis non curat lex.”) allows employers to disregard work that is otherwise compensable work when only a few seconds or minutes of work beyond the scheduled working hours are in dispute. The doctrine usually applies where, as a practical administrative matter, it is impossible to record precisely the work time for payroll purposes.
The court held that Kellar’s claim was not a case where the de minimis doctrine applies, because the amount of her pre-shift work, both per day and in the aggregate, was substantial. Specifically, Kellar worked between 15 and 45 minutes before each shift.

In Ms. Kellar’s case, Summit had no reason to suspect she was acting contrary to the company’s no- overtime policy. Kellar’s behavior raised no flags. When Kellar forgot to punch in, she would simply write in her time card that she arrived at the beginning of her scheduled work shift. Over the course of eight years, Kellar never told her employer that she had been working overtime. There was no indication that anyone else in management knew Kellar was performing pre-shift work. The Employer was not liable for Kellar’s unpaid overtime because it did not know, nor could it have known, that she was working unpaid overtime.

To avoid liability and to comply with the law,  A “no-overtime” policy in itself is not enough for an employer to avoid paying overtime. Employers who do not wish to pay overtime must take affirmative steps and make sure that workers do not perform any work without permission.  Employers must implement and enforce a strict time keeping policy and discipline those workers who do not record their hours accurately. An employer must be on alert as to the time preformed by employees before or after the scheduled shift. If an employer is aware of or has reason to suspect that employees work “off-the-clock” (e.g. employee’s complains, time-keeping cards, manager’s observation), the employer must compensate for such hours.

Read the Entire Article and other Publications Here

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Twelve Common Errors in Overtime Pay: Manipulation of the Tip Credit


Kevin D. Fitzpatrick, Jr. : March 25, 2012 1:29 pm

The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, record-keeping and youth employment standards for workers in the private sector and government.  Covered non-exempt workers are entitled to overtime pay of at least 1.5 times regular pay if they work more than 40 hours per week.

Another common problem area:

11. Manipulation of the Tip Credit

Employers of waiters, bartenders, busboys and other traditionally tipped employees are governed by a niche in the law called the tip credit, which allows the employer to reduce the minimum hourly wage paid to these employees by $5.12 per hour.  This results in an effective hourly wage of $2.13 (i.e., $7.25 – 5.12 = $2.13).  Employers sometimes require that the tipped employees participate in a “tip pool”.  A tip pool defeats the tip credit (resulting in a $7.25 per hour minimum wage) under the following conditions:

a)      If the tip pool is paid to an employee who is not traditionally tipped (for example, dishwashers, janitors, chefs, washroom attendants, managers).

b)      If an employer takes anything out of an employee’s tips other than a lawful tip pool.

If either of the above occurs, the employer is liable to the employee for the value of the tip credit ($5.12 per hour), a like amount as liquidated damages, and the employee’s attorneys’ fees.

Sometimes employers use the tip credit to pay overtime hours.  Overtime at the minimum wage is $10.88 ($7.25 x 1.5).  For tipped employees, the correct overtime rate is $5.76 (i.e., 10.88 – 5.12).  Many employers mistakenly inflate the tip credit to $7.68.  (i.e., 5.12 x 1.5) resulting in the incorrect overtime rate of $3.20.  This, too, can be a very costly mistake for an employer.

If you are an employer or an employee and have questions about the Fair Labor Standards Act, call the FLSA experts at DeLong Caldwell Bridgers & Fitzpatrick, LLC, Charles Bridgers and Kevin Fitzpatrick, at (404) 979-3150 for a free consultation.  For more information, check out our publication,  Are You Entitled to Overtime Pay?

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Twelve Common Errors in Overtime Pay: Multiple Employers


Kevin D. Fitzpatrick, Jr. : March 22, 2012 1:26 pm

The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, record-keeping and youth employment standards for workers in the private sector and government.  Covered non-exempt workers are entitled to overtime pay of at least 1.5 times regular pay if they work more than 40 hours per week.

Another common problem area:

10. Multiple Employers

As a general rule, companies with annual earnings of $500,000-plus are subject to the FSLA. Employers that operate with multiple corporate identities may try to avoid the FSLA by appearing to be a set of smaller companies.  Sometimes an employer may pay employees from more than one account so that no one paystub shows more than 40 hours a week.  However, the law sets out criteria for when multiple corporations will be considered a single employer under the FLSA (related activities, unified operations or common control, and a common business purpose). In a recent case, the employer had two corporations, one for his landscaping business and one for his landscape lighting business.  The two companies had sufficient connections to be considered a single employer under the FLSA.

If you are an employer or an employee and have questions about the Fair Labor Standards Act, call the FLSA experts at DeLong Caldwell Bridgers & Fitzpatrick, LLC, Charles Bridgers and Kevin Fitzpatrick, at (404) 979-3150 for a free consultation.  For more information, check out our publication,  Are You Entitled to Overtime Pay?

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Twelve Common Errors in Overtime Pay: Independent Contractors


Kevin D. Fitzpatrick, Jr. : March 18, 2012 1:13 pm

The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, record-keeping and youth employment standards for workers in the private sector and government.  Covered non-exempt workers are entitled to overtime pay of at least 1.5 times regular pay if they work more than 40 hours per week.

Another common problem area:

9. Independent contractors

Employees are entitled to overtime pay; independent contractors are not.  Employers often label a worker as an independent contractor to avoid paying overtime under the FLSA.  As with white collar exemptions, FLSA exemptions are always defined by what you do, not what you are called.  The most important factor in an independent contractor/employee analysis is the amount of control that the employer exercises over the worker.

If you are an employer or an employee and have questions about the Fair Labor Standards Act, call the FLSA experts at DeLong Caldwell Bridgers & Fitzpatrick, LLC, Charles Bridgers and Kevin Fitzpatrick, at (404) 979-3150 for a free consultation.  For more information, check out our publication,  Are You Entitled to Overtime Pay?

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