Results matching “overtime wage”

"Is a worker an employee or independent contractor? The legal distinction between the two often is clear as mud, but the consequence for guessing 'independent contractor' when the answer is 'employee' can be a huge bill to employers for back wages (especially overtime) and back taxes." And states, just like class action lawyers, stand to make a fortune through aggressive efforts to convince courts that employers have guessed wrong [Workplace Prof, Slate "BizBox"]

Around the web, June 8 - PointOfLaw Forum

Around the web, March 23 - PointOfLaw Forum

  • "The Duty to Avoid Wrongful Convictions: A Thought Experiment in the Regulation of Prosecutors" [Fred Zacharias/Bruce Green SSRN paper via Perlman, Legal Ethics Forum]
  • Wage-and-hour class action on behalf of CBRE property management maintenance workers seeks overtime for time spent carrying Blackberry at employer's wish to stay in touch during off hours [Business Journal of Milwaukee]
  • "International human rights law" an elastic and ever-expanding thing: now it's said to ban life-without-parole as too harsh a penalty for the worst killers [Volokh]
  • Wyeth v. Levine just one more source of good news for big, prosperous and cohesive Philadelphia trial bar [Inquirer courtesy U.S. Chamber]
  • Dominion Transmission class action: lawyers' fees cut to a mere $2,130/hour [WV Record]
  • Florida Engle/Hess "mini-trials" against tobacco defendants probably unconstitutional, says Cardozo lawprof Anthony Sebok [FindLaw "Writ" via Childs]

'Free choice' versus binding arbitration - PointOfLaw Forum

Peter Kirsanow, a Cleveland attorney and member of the U.S. Commission on Civil Rights, has turned his attention recently to the Employee Free Choice Act, the legislation that would allow labor organizers to dragoon employees into a union bargaining unit via public collection of signature cards, eliminating a secret-ballot election supervised by the National Labor Relations Board.

In several posts at National Review's The Corner (one previously noted by Walter), Kirsanow focuses on the binding arbitration provisions of the law, which until recently have received much less scrutiny then the "card check" provisions. In short, if a new bargaining unit and employer cannot reach a first contract after 120 days, a federal arbitrator will impose contract terms on them for two years. Sometimes you can't even agree on the size of the negotiating table in that period of time, Kirsanow notes from his own experience. And is it really a contract?

Under EFCA, the terms set by the arbitrator will be the furthest thing from a "contract." It won't be an agreement between management and labor. Rather, wages, hours and terms and conditions of employment will be dictated by a government appointed arbitrator. The mandate will be binding on the parties for two years. Neither the company nor the employees can reject it...

Currently, if employees don't like the tentative agreement negotiated between union leaders and management the employees can vote it down and instruct their leaders to go back to the bargaining table to get a better deal. Not so under EFCA. If the employees don't like the arbitrator's decree of a 2% wage increase, they're stuck. Similarly, if the company can't afford the arbitrator's command to pyramid overtime, the company's stuck. The consequences aren't difficult to imagine.


Right. Imagine being in an industry where five or six businesses are engaged in fierce price competition, and where labor decides to organize you first. An arbitrator's terms could kill your operation altogether.

Kirsanow's posts, which also include some illuminating comparisons to Canadian employment law:

Around the web, October 22 - PointOfLaw Forum

Around the web, March 14 - PointOfLaw Forum

All-employment-law edition:

  • Wage-and-hour suits keep perking away: 75,000 Wal-Mart employees in Washington state [Post-Intelligencer]; $100 million demanded for tip-sharing Starbucks baristas [The Recorder]; Canada has it too as in huge overtime suit against Bank of Nova Scotia [CP/AsianCanadian.net]
  • California managers heave sigh of relief as state high court, 4-3, spares them personal exposure in retaliation claims [The Recorder]
  • Speaking of retaliation, before departing Gov. Spitzer passes into private life, spare a moment to recall one interestingly aggressive legal position he took as AG: that employees' walking off job to march in immigration-amnesty demonstrations was protected activity immune from employer discipline [Malkin]
  • Local governments across England obliged to "remortgage their town halls and raid reserves" to meet sweeping L2.8 billion retroactive comparable-worth order [Guardian]
  • EEOC "acutely disappointed" by court decision last fall curbing its quest for punitives in "pattern and practice" sex harassment charges [ChiTrib/TradingMarkets.com]
  • No age discrimination charge was ever more credible ["Speed Bump" cartoon]

"IBM responds to overtime lawsuits with 15% salary cuts" - PointOfLaw Forum

The fastest-growing area of employment litigation in recent years has been wage-and-hour class actions, perhaps the biggest subset of which are lawsuits charging that white-collar employees have been misclassified as exempt from hourly wage and overtime calculations. Like many big employers, IBM has been hit with such suits from lawyers seeking to represent thousands of its employees. Information Week:

The good news for those workers is that IBM now plans to grant them so-called "non-exempt" status so they can collect overtime pay. The bad news: IBM will cut their base salaries by 15% to make up the difference, InformationWeek has learned.

The plan has been greeted with howls of protest from affected workers.

The payroll restructuring goes into effect Feb. 16 and applies to about 8,000 IBM employees classified as technical services and IT specialists, according to internal IBM documents reviewed by InformationWeek and sources at the computer maker.

The plan calls for a "15% base salary adjustment down across all units with eligibility for overtime," the documents state. The move is a direct response to the employee lawsuits -- at least one of which has apparently been settled.

"To avoid protracted litigation in an area of law widely seen as ambiguous, IBM chose to settle the case -- and to conduct a detailed review of the jobs in question," the documents state.

The giant tech company also intends to lobby for modernization of New Deal era wage-and-hour laws which might allow it to restore the previous compensation methods. Good luck with that -- even if it can show that most of the workers involved would themselves favor salaried rather than hourly status, the political clout of unions and trial lawyers has stymied efforts at legislative reform in the past. (Paul McDougall, Information Week/EETimes.com, Jan. 23)(cross-posted from Overlawyered).

Business Week on wage/hour, overtime suits - PointOfLaw Forum

Those who've followed the past coverage on this site won't be all that surprised by last week's cover story on the fastest-growing area of employment litigation, but it's a good introduction to the subject for those new to it, with some nuggets worth memorializing:

No one tracks precise figures, but lawyers on both sides estimate that over the last few years companies have collectively paid out more than $1 billion annually to resolve these claims, which are usually brought on behalf of large groups of employees....Wal-Mart Stores is swamped with about 80 wage and hour suits, and in the past two years has seen juries award $172 million to workers in California and $78.5 million in Pennsylvania.

"This is the biggest problem for companies out there in the employment area by far," says J. Nelson Thomas, a Rochester (N.Y.) attorney, who, like [Reno attorney Mark] Thierman, switched from defense to plaintiffs' work. "I can hit a company with a hundred sexual harassment lawsuits, and it will not inflict anywhere near the damage that [a wage and hour suit] will." ...

While violations appear widespread, employees themselves rarely think to make wage and hour claims. Instead, they usually have it suggested to them by lawyers. "Ninety-five percent of our wage and hour cases are a result of someone coming to us complaining about something else," says Thomas. "I can't tell you how many people have come into our office with employment disputes that are meritless and would be thrown out of court and walk out with an FLSA claim."

San Diego courts hit with overtime suit - PointOfLaw Forum

Pretty much everyone is vulnerable to wage-hour litigation these days, it seems, and "everyone" includes the courts themselves.

High court upholds home care overtime exemption - PointOfLaw Forum

By a 9-0 margin, the U.S. Supreme Court declined to upset Department of Labor regulations that exclude home health care workers from wage-hour coverage (earlier). Much of the news coverage, as usual, proceeded as if the question were simply: do we think exempting these workers is a good idea, or not? Fortunately, the court itself did not mistake its role for that of a surrogate legislature, and recognized that the legal issue before it was whether DoL acted within its authority in issuing the rule, which it clearly did.

The Daily Business Review reports that the chief judge of South Florida federal courts has condemned attorneys on both sides in an overtime wage case. Their name-calling and refusal to settle is "an abuse of the judicial process". Plaintiff's lawyer will not collect the $144K in fees that he demanded to pursue an overtime pay case of $11,000 which the defendant admitted owing. Defendant's lawyer will not be able to recover $110000 in claimed attorney's fees. The report is replete with descriptions of the outlandish behavior of attorneys. Here's hoping the Florida Bar is next in line to sanction them.

Abuse of attorney fees in federal "overtime pay" cases has gone on for years. May this be a warning to the abusers.

(Update: Defense attorney Jeffrey Norkin responds at Overlawyered.)

One-way fee-shifting - PointOfLaw Forum

The Colorado Civil Justice League correctly identifies its unfairness:

The CCJL would like to thank Chris Ottele from the law firm of Holme, Roberts and Owen for his tireless work helping us negotiate a satisfactory settlement over a particularly troubling employment litigation bill, HB1247. As we notified you last week, this bill originally created treble damages for wage-claim violations and eliminated the right of employers to seek attorneys' fees and court costs when they prevailed in a case.

The CCJL has always insisted on a "level playing field" in fee-shifting arrangements - both sides should be able to recover fees and costs or neither side should - and we will clearly need to keep reminding legislators why that is important. Permitting only employees to recover costs and fees paints a litigation target on the backs of Colorado's employers. It is all upside and no downside for employees who want to sue their bosses. One-way fee shifting eliminates the only meaningful disincentive to filing meritless claims.

More here and here and, at Overlawyered, here, here and here.

Surge in overtime suits - PointOfLaw Forum

A WSJ news account (sub-only) covers the trend:

Last year, 3,599 lawsuits alleging some violation of the Fair Labor Standards Act, which mandates federal pay rules for employees, were resolved, according to the federal judiciary. That is more than double the 1,596 cases resolved in 2000.

"There has been an explosion of Fair Labor Standards Act litigation since 2002," says Edward Harold, a partner at Fisher & Phillips LLP in New Orleans, which represents management in labor-law disputes. His firm estimates that lawsuits by groups of workers, as opposed to individual workers, alleging violations of federal wage rules rose to 1,300 in 2005, up from 350 in 2000. Other attorneys and workers' groups say they have seen similar increases.

Could the increase be due to intensive recruitment and development of cases by the plaintiff's bar? Yes, say defense lawyers, while their opposite numbers say no, it's just this big spontaneous upwelling of worker anger at FLSA infractions. Much more on our employment law page.

Stockbroker overtime, cont'd - PointOfLaw Forum

The magazine Registered Rep devotes its new cover story to the barrage of overtime lawsuits directed at Wall Street firms, supposedly on behalf of exploited retail producers who in some cases are earning $400K. (See "Arise, ye prisoners of high-paid brokerage jobs", Mar. 9). The article profiles Reno, Nev. attorney Mark Thierman, who's organized a large number of such suits demanding $2 billion or more from retailers and financial institutions. One highlight: interviews with actual brokers at leading firms who violently reject ("ludicrous", etc.) the idea that they are non-professionals who should be entitled to sue their employers for overtime. The way FLSA, the federal wage/hour law, is set up, however, it's not clear that a payday for Thierman can be avoided no matter how lame his own supposed client pool considers his contentions to be.

How well do you understand wage and hour law? - PointOfLaw Forum

Probably not well enough to keep from getting sued under it, and maybe losing. HRHero has a quiz that may help clarify your confusion (via Mike Harris at George's Employment Blawg; George Lenard, who runs that weblog, took the test and scored only 62.5% correct, missing three of eight answers).

Arise, ye prisoners of high-paid brokerage jobs - PointOfLaw Forum

The overtime-classification wars have reached Wall Street, with the result that $400,000-a-year stockbrokers are claiming with a straight face that they're really hourly employees, contends Littler Mendelson's Allan G. King:

In a spate of class action lawsuits against Merrill Lynch, Morgan Stanley, Prudential and other brokerages, filed principally in New York, securities brokers -- who earned billions in commissions annually -- now claim they were just hourly "wage earners," who were misclassified by their employers to thwart the Fair Labor Standards Act and the California Labor Code.

Could we please, please get Congress to revisit the antediluvian FLSA and start preparing to repeal parts of it that make no sense today, or never made sense in the first place?

Overtime rules - PointOfLaw Forum

A recent federal revision to the wage-and-hour regulations doesn't seem to have dampened the boom in overtime lawsuits, say plaintiff's lawyers quoted in the NLJ, partly because it didn't resolve ambiguities in coverage (and may even have created new ambiguities), and partly because the whole process helped raise consciousness about the possibility of filing claims.

California overtime suits - PointOfLaw Forum

They're a great big industry for the plaintiff's bar, and that's unlikely to change no matter how the overtime controversy turns out at the federal government level, since California law is markedly more hostile to employers. Here are three recent Law.com articles on a settlement involving Farmers Insurance claims adjusters that could top $200 million, a green light for class certification in lots of other cases, and an effort by plaintiff's lawyers to organize wage-and-hour suits on behalf of stockbrokers in the state even though, as one of the lawyers puts it, they "earn so much money that nobody even thinks of them being entitled to overtime."

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