Monthly Archives: May 2011

Overtime Pay for Not-So- “Independent” Contractors

Two construction workers at work.

Image via Wikipedia

Often, employers will classify a worker as an “independent contractor” — and many times the worker agrees to this categorization– and the worker is not paid overtime for hours worked over 40 per week.

However, if you are a worker who is called an “independent contractor,” that categorization may not apply for overtime-law purposes and more understanding of the law can help you determine whether you are eligible for overtime pay.

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The Importance of “Counting to Ten” in Employment Disputes

Count To Ten
Image by bartmaguire via Flickr

There are many, many different factual and legal issues that arise in employment disputes.

However, there are a few fundamental, core issues that underlie nearly all employment disputes and lawsuits.

The biggest cause of employment lawsuits I see is poor communication– most commonly, a worker letting anger or knee-jerk reactions control the way he or she communicates and acts.

The fix to prevent this is what a parent told you: Count to Ten.  Before you react out in an angry or knee-jerk fashion, take time to calm down, assess the situation, and take heart of the full gravity of the situation and the possible outcomes if various actions are taken.

If you are in a calm and factual state of mind, you will often deal with a situation much better than if you had acted out of emotion.

In almost every circumstance, when an issue arises at work (whether severe or minor), the people involved are able to work through the issue, with no one needing to lose their job or otherwise be harmed, if everyone keeps their cool.  Heck, if one side keeps their cool, that’s usually enough to make the other side calm down.

But once issues become personalized by either side, and communication suffers, then the matter is at high risk of leading to injury (e.g. lost job or wages or litigation-related expense) and festering until a much later resolution.  Those who count to ten almost always wind up in a better position.

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Wage Issues? Tip #10: Avoid Signing Documents You Disagree With

This post continues my series of tips, or things to consider, for workers with unpaid wages.

Tip #10 is this: Don’t Sign Documents the Employer Presents That You Disagree With, or Believe to Be False.

If you have unpaid wages, and an employer approaches you with a document to sign relating to the unpaid wages, chances are that document benefits the employer.

I am aware of employers who asked workers to sign off on:

  • Timecards or payroll documents with underreported wages. For example, some employers make automatic1/2-hour pay deductions for a lunch period everyday, despite the worker having to work through the lunch period many days. Such documentation should reflect your actual hours and pay before you should be made to sign off on it.
  • Settlement agreements that pay significantly less wages than the law requires.  Some employers, to their credit, self-identify wage underpayments and approach workers with settlement agreements in which the employers agree to pay the workers if the workers agree to waive potential legal claims. However, employers’ initial settlement offers (especially if the employees do not have attorneys) usually offer significantly less than the legally-required wages and/or damages. If it’s possible to have an attorney review and advise about a proposed settlement before applicable deadlines, this can be of assistance in potentially negotiating or winning a larger payment and avoiding potential pitfalls.
  • An arbitration agreement.  These agreements (if signed by the employee) take away the employee’s right to go to court for an employment dispute, and in some instances take away the right to participate in a class action lawsuit. The employee must participate in arbitration, a process which lacks the full rights available in court, and often involves an arbitrator hand-selected by the employer, who has routinely dealt with the employer’s matters. Employers’ ability to impose one-sided arbitration agreements became even more severe due to the Supreme Court’s AT&T Mobility v. Concepcion decision, which allows arbitration agreements to (1) limit employment disputes to an arbitration forum (and prohibit court as a forum); AND (2) take away an employee’s right to participate in a class action, whether in court or in arbitration.
  • False documentation, such as false work-leave forms, that serve the employer’s benefit.  This type of issue is common with H-1B workers, where some H-1B employers will try to get H-1B workers to sign forms indicating the workers took leaves of absence they did not in fact take. The H-1B employers who do this are often trying to cover up their “benching” of the workers and failure to pay the required wage.  If you are an H-1B worker (or employee of any kind) whose employer is confronting you with a false form, you should not sign the form and seek legal counsel before considering signature of something you know to be false and against your interests.

Please give careful time and thought to such documents before you sign them. If an employer is rushing or pressuring you to sign such documents, that is an even worse sign that the employer wants to act against your interests and not allow you a fair opportunity.

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Wage Issues? Tip #9: Don’t Drop the A- (Attorney-) Bomb

This post continues my series of tips, or things to consider, for workers with unpaid wages.

Tip #9 is this: Don’t Drop the A- (Attorney-) Bomb—that is, don’t tell the employer you have an attorney unless you really have an attorney and that attorney tells you to tell the employer you have an attorney.

Okay, that was a mouthful!

But as an attorney, I am often consulted by workers who– before they ever consulted with me or with another attorney– threatened the employer that they had done so.

I’ve even had workers who’d I’d never represented, and who’d never contacted me before, send their employers emails with my email address cc’d, to give the employer the impression that the workers had retained me.

Please do not make “A”-bomb threats like these!

Here’s why:

  • Employers often view attorney threats as empty threats, thinking that if you really were going to have an attorney go after the employer, the employer would have heard that from the attorney, not from you.
  • Employers who do believe the threat (1) will often try to hide their tracks and take concealed actions against you, now that you tipped them off you’re considering getting an attorney; and/or (2) will often try to get you to agree to a lowball settlement offer, before you get an attorney involved who may advise you of a higher potential case value and settlement valuation. Often, the employer does not offer a thing in result of the threat– I get inquiries from worker who were not only unsuccessful in that their A-Bomb threat got them no offer of wages or settlement money, but further, their threat resulted in the employer retaliating and/or firing them.
  • The threat rarely works as well as actually getting a wage attorney.

When I represent workers with unpaid wages, the decision about when and how to inform the employer of me being retained is a very careful and well-planned decision.

When a worker makes that decision before consulting with me, the news is often delivered in ways that I wouldn’t have advised– too soon, too late, too angrily, too vaguely, etc.

It’s a significant decision to tell the employer about an attorney or potential legal action. Please consider talking to an attorney before you tell the employer you’re in contact with an attorney.

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Wage Issues? Tip #8: Being Paid on Salary Basis Does Not (By Itself) Exclude You From Overtime Pay

This post continues my series of tips, or things to consider, for workers with unpaid wages.

Tip #8 is this: Being Paid on Salary Basis Does Not (By Itself) Exclude You From Overtime Pay.

There is a common myth among workers that if a worker is paid on a salaried basis, then the worker is not entitled to overtime (1.5x regular pay for hours over 40 hours per week), end of story.

Please know that being paid a salary does NOT itself disqualify (“exempt”) a worker from overtime.  Paying a worker a salary is one criterion of multiple criteria that must be present for an employer to avoid overtime obligations to that worker. Thus, for any salaried worker, additional criteria must also be present before that salaried worker can be overtime-exempt under the law.

On this website, the Department of Labor describes common exemptions for overtime coverage under the federal wage law, the Fair Labor Standards Act.  The website describes the criteria (salary pay of at least $455/week PLUS other listed criteria) that must be met before an employer can legally exclude a worker from overtime pay under one of the detailed exemption types.

As you will see, the exemptions mostly depend on the job duties that the worker performs, and whether the nature of those duties (regardless of salary pay) are the type that make the worker overtime-exempt.

If you are a salaried worker who has reviewed these exemptions, you may not agree with your employer’s classification of your job as overtime-exempt.  Indeed, there are frequently lawsuits where workers and employers disagree about the employers’ application of exemptions that the workers feel are inappropriate for their jobs and duties as actually worked.

If a worker simply (and wrongly) assumes that salary pay excludes him or her from overtime pay, then the worker may be overlooking other necessary exemption criteria that are not fulfilled, and overlooking a potentially valid legal claim for unpaid overtime.

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Wage Issues? Tip #7: Use a Date Calculator to Help With Calculations of Deadlines and/or Unpaid Wages

This post continues my series of tips, or things to consider, for workers with unpaid wages.

Tip #7 is this: use a date calculator to help with calculations of deadlines and/or unpaid wages.

For years, I have used a website date calculator, like this one, to help me calculate legal deadlines (statutes of limitations) and/or unpaid wages.

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