Fair Labor Standards Act in Georgia

Twelve Common Errors in Overtime Pay: Incomplete Records


Kevin D. Fitzpatrick, Jr. : March 14, 2012 1:12 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:

8.Incomplete records

Employers may try to avoid paying overtime due to incomplete records.  The FLSA requires employers to “make, keep and preserve records” of employees and of their “wages, hours, and other conditions and practices of employment” – this applies to exempt and nonexempt workers.  For non-exempt employees, records must include the hours worked each day and week; these records must be preserved for three years.  An employer’s failure to create and maintain legally required records has a legal consequence: the employee’s reasonable approximation of his work time will be the best evidence of that work time.

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: Working “Off the Clock”


Kevin D. Fitzpatrick, Jr. : March 10, 2012 1:10 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:

7. Working “off the clock”

Employers sometimes try to avoid paying overtime by forcing employees to clock out but continue to work.  In a recent case, an employer kept “card time” up to 40 hours for each employee and “paper time” for work time over 40 hours and then unlawfully paid the employees at their regular rate for the paper time.  Sometimes employers insist they cannot pay  overtime but thank employees profusely for working for free.  This, too, is a violation of the law

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: Waivers and Releases


Kevin D. Fitzpatrick, Jr. : March 7, 2012 1:08 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:

6. Waiver

Sometimes employers require workers to sign a document waiving their right to overtime pay.  These waivers are, in reality, toothless.  Under the law, FLSA rights cannot be effectively waived without the express prior approval of a federal court.

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: Undocumented Workers


Kevin D. Fitzpatrick, Jr. : March 4, 2012 1:06 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:

5. Undocumented workers

Anyone who performs non-exempt work is covered by the FLSA.  Many employers in Atlanta hire undocumented workers (e.g., as dishwashers, cooks, maids, landscapers, fabricators, etc.) and fail to pay them the FLSA minimum wage, overtime or both.  The courts are not hesitant to require employers to pay undocumented workers according to the FLSA.  We have successfully pursued dozens of minimum wage and overtime cases for undocumented workers.

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: Workweek Expansion


Kevin D. Fitzpatrick, Jr. : March 1, 2012 1:04 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:

4.Workweek expansion

For most employers, the FLSA overtime rules operate on the basis of a seven-day workweek.  If you work more than 40 hours in a seven-day workweek, you’re entitled to overtime pay for that week, regardless of the dimension of the actual pay period.  If your employer pays you on the basis of a 14-day pay period, for example, the employer may not “average out” the employee’s work time for purposes of paying overtime.  If you worked 50 hours in the first week and 30 hours in the second week of a 14-day pay period, you are entitled to 10 hours of overtime pay for the first week.

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: Compensatory Time


Kevin D. Fitzpatrick, Jr. : February 26, 2012 1:02 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:

3.Compensatory time

Employers sometimes offer employees “comp time” (i.e., paid time off in a future work week) in lieu of overtime pay.  This is another widely held misconception.  Under the law, only government employers can offer comp time — and then only under a narrow range of circumstances. It is illegal for private employers to offer comp time to employees in lieu of overtime pay to non-exempt employees.

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: Salaried Employees


Kevin D. Fitzpatrick, Jr. : February 23, 2012 12:57 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:

2.Salaried employees

Some employers tell their employees that they do not receive overtime because they are paid a salary.  This is widely held misconception about the FLSA.  FLSA exemptions are always defined by what you do, not how you are paid.  Employees who receive a salary may still be covered the FLSA overtime pay requirements.  We have seen many examples of non-exempt salaried employees who were entitled to overtime pay 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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Dionne II Clarifies Earlier Eleventh Circuit Ruling


Charles R. Bridgers : February 21, 2012 9:32 pm

In the summer of 2011, the Eleventh Circuit Court of Appeals decided Dionne v. Floormasters Enterprises, Inc., 647 F.3d 1109 (11th Cir. 2011) (Dionne I) Dionne I was read by some defense counsel (and judges) to allow a Defendant to moot an FLSA case at any time by paying claimed wages and liquidated damages but without paying attorney’s fees or costs.  We are aware of one District Court judge suggesting at the conclusion of a bench trial (during which the Defendant admitting keeping two separate sets of records to avoid overtime) that the Defendant could moot the case by paying only the claimed wages and liquidated damages. On January 13, 2012, the Eleventh Circuit vacated Dionne I and substituted Dionne II (No. 09-1540). Dionne II did not change the result in the case but issued a substantial clarification in a new footnote (fn5):

“Our decision in this matter addresses a very narrow question: whether an employee who conceded that his claim should be dismissed before trial as moot, when the full amount of back pay was tendered, was a prevailing party entitled to statutory attorney’s fees under § 216(b). It should not be construed as authorizing the denial of attorney’s fees, requested by an employee, solely because an employer tendered the full amount of back pay owing to an employee, prior to the time a jury has returned its verdict, or the trial court has entered judgment on the merits of the claim.”

A case may still be mooted “where the employee concedes that the claim for overtime should be dismissed as moot” but this is no longer–even arguably—the unilateral decision of the Defendant.

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Twelve Common Errors in Overtime Pay: Misclassification


Kevin D. Fitzpatrick, Jr. : February 20, 2012 12:56 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.

The first problem area:

1.Misclassification of a worker’s position

There are three “white collar” exemptions to overtime pay: serving in a bona fide “executive,” “administrator” or a “professional” capacity. Simply calling an employee’s position “executive” or an “administrator” does not establish exempt status unless the “primary duty” of the position is to perform certain white collar administrative or executive functions.  FLSA exemptions are always defined by what you do, not what you are called.

The law sets out a list of factors to help determine whether an employee’s primary duty is the performance of exempt work.   Considerations include the relative importance of exempt duties; the amount of time spent performing exempt work; an employee’s freedom from direct supervision; and the relationship between the employee’s salary and the wages paid to other employees. Misclassification often occurs in retail chains where the “manager” spends the majority of his work time performing non-exempt work – unloading trucks, stocking shelves and waiting on customers.  Although the “manager” may spend an hour or so each day filling out forms, the real “management” of the store is handled at corporate headquarters.  Courts often find that these “managers” are actually non-exempt employees who are entitled to the overtime provisions of 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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Tipped Employees May be Entitled to $7.25 Minimum Wage When they Spend >20% on Non-Tipped Activities


Charles R. Bridgers : January 31, 2012 10:14 am

The U.S. Supreme Court recently denied certiorari from an Eighth Circuit decision in Gerald Fast v. Applebee’s International, 10-1725 (8th Cir. 2011). In Fast, the Court approved a Department of Labor interpretation (Chapter 30d of its Field Operations Handbook (.pdf)) that states:

Reg 531.56(e) permits the taking of the tip credit for time spent in duties related to the tipped occupation, even though such duties are not by themselves directed toward producing tips (i.e. maintenance and preparatory or closing activities). For example a waiter/waitress, who spends some time cleaning and setting tables, making coffee, and occasionally washing dishes or glasses may continue to be engaged in a tipped occupation even though these duties are not tip producing, provided such duties are incidental to the regular duties of the server (waiter/waitress) and are generally assigned to the servers. However, where the facts indicate that specific employees are routinely assigned to maintenance, or that tipped employees spend a substantial amount of time (in excess of 20 percent) performing general preparation work or maintenance, no tip credit may be taken for the time spent in such duties.

As a result, restaurants and other employers of tipped employees need to be conscious of how much time such employees spend on activities not "directed toward producing tips," such as setup or cleaning tasks. Under the DOL’s interpretation, employers will have the burden of proving that time spent on these tasks falls below the 20% threshold. If tipped employees spend more than 20% of their time in non-tip-generating activities, the DOL will take the position that these employees should be paid at least the minimum wage for such time.

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