What are some common ways that employers violate the law?

The primary source of federal wage and hour litigation comes from the Fair Labor and Standards Act (“FLSA”). However, there are additional laws that effect wages and hours in conjunction with or independent of FLSA. Below is a brief overview of these other federal wage and hour laws; the FLSA is covered in detail elsewhere.

Portal To Portal Act Claims
FLSA requires that employees are compensated for “principal” job activities. The Portal to Portal Act added “incidental and integral” activities as mandatory paid time. An activity is considered incidental and integral if it a necessary part of a principal activity that occurs during the employee’s work day. The most common types of incidental and integral time include water breaks, waiting time, staff meetings, safety drills, and placing on or removing protective gear. These tasks are all necessary to accomplish the principal assignments of work, including that such assignments be accomplished safely.

A strong example of incidental time comes from the leading case in this area, IBP, Inc. v. Alvarez. In Alvarez, the employee worked on a meat processing line. He, along with all other employees, was required to put on extensive protective equipment before beginning his shift, including hairnet, earplugs, hardhat, rubber gloves, rubber boots, rubber apron, and protective “chain link” body guards. These were all provided to employees and required to be stored in on-site lockers. IBP attempted to classify the time employees spent putting and taking off on the equipment and walking across the plant to the line and back as non-paid time. The Supreme Court held otherwise, finding that without the equipment the assignment of butchering and processing could not be accomplished: the activities were a necessary part of the main work. The fact that the employer required the gear to be stored on-site made it impossible for the employees to don the gear prior to the workday. Further, even aside for its location, the equipment was extensive and impractical to wear during travel. The Court suggested the time would still be compensated if the employees could take the gear off-site, so long as it was done after arriving.

When an employer has failed to compensate employees for incidental and integral time, the result will often be uncompensated overtime. The FLSA then “takes over” and requires the employer to compensate the employees at time-and-a-half for the time worked but not counted. Proving this time can be extremely difficult, but the ultimate amount of uncompensated time can accumulate quickly. Factoring in interest, the damage award can be quite substantial.

Equal Pay For Equal Work
Pay discrimination is prohibited by two major pieces of litigation: The Equal Pay Act and The Lilly Ledbetter Fair Pay Act (“LLFPA”). These laws work largely in tandem. The laws require positions of “substantially equal” work to be paid the same wage unless based on a legitimate factor, such as experience or education. Substantially equal work is very similar assignments, requiring equal skill, effort, and responsibility. For example, in EEOC v. Madison Community United School District, the court found that paying female coaches of female athletic teams less than male coaches was a violation of the Equal Pay Act. This was true, however, only when dealing with the same sports; the male football coach was permitted to be paid more because of the profitability and popularity of the sport—a legitimate factor.

LLFPA mainly sought to correct a large problem that developed with equal pay cases. The Supreme Court determined that equal pay claims accrue—begin to run for purposed of when a claim must be filed by—upon the initial decision to pay the employee the lesser wage. In Ledbetter v. Goodyear Tire & Rubber Co., this meant that Lilly Ledbetter’s claim began to run in 1979, when she was hired, even though she only discovered the difference in 1998. LLFPA changed this, instead “renewing” the time period in which an employee can file at each paycheck. The amount of back pay available is limited to two years prior to filing, however. LLFPA also created exceptions for willful violations that extend both the filing period and potential back pay.

Equal pay actions follow the procedure of Title VII claims. The employee must file a charge with the Equal Employment Opportunity Commission within 180 days of receiving an unequal paycheck. The EEOC then investigates the charge for 180 days, at which time the employee can request documents to file in court rather than allowing the EEOC investigation to continue. The employee must then file in court extremely quickly, generally within 90 days.

Misclassification Cases
Hour misclassification occurs when an employer misclassifies working time, similar to a Portal to Portal Act violation. However, in this instance it is commonly time away from the work-site. On-call time is the most prominent example. On-call time does not go towards overtime so long as the employee is free to engage in personal activities and the employee agreed to the arrangement. Thus, when an employee is asked to be on-call once, that time must be counted towards the workweek for calculating overtime. However, when an employee routinely has on-call times and is allowed to engage in personal activities during these times, even when those activities are somewhat limited, the on-call time may be calculated separately from the workweek in determining overtime. Common prohibitions include staying within a particular radius of the worksite or refraining from drinking alcohol.

Other situations in which hour misclassification occurs includes lunch times. This time is generally not considered paid time, but may become so if the employer imposes too many restrictions upon the employees. Generally, if employees are free to travel anywhere for lunch, the time is not considered “on-the-clock.” For example, police officers that are permitted to travel for lunch are not compensated even though they must remain in uniform and in the city, with the possibility of answering emergency calls. However, construction employees that are required to eat on-site as a means of security for the materials are entitled to compensation for this time.

Wage and hour litigation can cover a wide array of laws and situations. It is difficult to know when an employer must compensate for time spent doing secondary activities. It is important to contact experienced legal counsel when time seems to be wrongfully excluded. This ensures that the correct avenue for relief is utilized and that no potential wages are lost to time or oversight.

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