Articles Posted in Employment Issues

Over the past few months, our Nashville law office has had an large increase in wage and hour cases throughout Tennessee. I do not know if it is a product of the current economy or people are just tired of being mistreated. Regardless, it is unfortunate but it is often the case the Tennessee employers try to increase their profit by cheating Tennesseans out of their wages.

One common scheme we are seeing recently are having people clock out of work while they are still required to be on the premises. Often the company will have the worker clock out and come to a mandatory office meeting. Although this may only be a few dollars for the individual employee it adds up to a significant amount of money that the employer is taking from their workers.

We are also seeing significant number of misclassification cases. Put simply, the TN employer gives a regular employee a supervisor or manager title so they do not have to pay overtime. The problem arises when the employee has no manager duties.

In a follow-up to a Tennessee Law Blog’s wage and hour reporting last July (Unpaid Wages and Unrecorded Hours Subject of Local Nashville, TN Car Wash Lawsuit), I and my fellow TN employment attorneys at the Higgins Firm are glad to announce a $130,000 settlement between Shur-Brite Hi-Speed Car Wash and 120 of its current and former Tennessee wage employees.

Shur-Brite, which has operated in Tennessee for three decades, recently got into trouble with federal law on their wage and hour practices. Allegations included various violations of workplace law, but the main abuse was time card violations. Workers were forced to clock out when they were not actively working. As Tennessee Law Blog previously reported:

… the wage and hour lawsuit alleges that Shur-Brite High Speed Car Wash owners knowingly, and illegally, forced employees to clock out when there were no cars to wash… [On] slow days, workers would be forced to clock out as often as ten times during the day. Many workers would be at the car wash site for over 40 hours a week but only get paid for 15 at Tennessee’s minimum wage of $5.85 an hour. Some workers put in twelve-hour days hoping to get paid for eight. Many times it was unclear to workers whether they were on or off the clock …

Costco employees have filed a unpaid wages lawsuit in California stating the company had repeatedly violated the state’s wage and labor law. Costco faces allegations similar to those Tennessee Law Blog reported last year in the nationwide unpaid overtime lawsuits against Wal-Mart stores. Specifically, Costco has allegedly required employees to work off the clock by locking employees in the store after their shifts and not paying them for this time or overtime as required under state employment laws.

Unlike earlier Wal-Mart lawsuits, Costco has apparently claimed that keeping employees after they clocked out was for security reasons. Apparently managers forced employees to remain after their shifts while they performed closing tasks, such as removing valuables from display cases and emptying cash registers. Costco employees were unpaid for this time off-the-clock during which they were not permitted to leave.

Tennessee labor law requires employees be paid for their time, including required training and, in some cases, travel time. If something similar to what California Costco employees faced is happening at your Tennessee place of employment, you may have the opportunity to recover unpaid wages under Tennessee’s wage and hour law.

Today marks a critical point in the year, a date that should make us as a Tennesseans and as U.S. citizens not simply ashamed but motivated to action. April 28 (known as Equal Pay Day) marks the point into the year a woman would have to work to in order to catch up with her male counterpart’s pay in 2008.

Large steps in closing the pay disparity between man and women have been made since the Equal Pay Act of 1963, which made it illegal for employers to pay women less than men for equal work. And Tennessee lawmakers took a strong step forward in 2004 with The Equal Pay Remedies and Enforcement Act that put teeth in Tennessee discrimination law. Then, in January this year, even further progress was made with the The Lilly Ledbetter Fair Pay Act. This law, designed to reduce employers’ ability to continue unfair, sex-based discriminatory pay practices, expanded the statute of limitations and closed the legal loophole that allowed employers to continue discriminatory pay practices if previously they haven’t been caught.
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Our firm has filed several new Tennessee cases over the past few months involving employees who are not being paid overtime. It seems that some employers are cutting corners in these hard economic times. It is too bad that some are doing so illegally and at the workers expense.

In several of these cases the workers have been classified as “managers” or “supervisors”. Unfortunately, it is our belief that these workers are not managers and should therefore be receiving 1.5 times what they normally earn for all hours over 40 hours per week.

There are multiple factors to consider when determining if you should be receiving overtime or if you are exempt as a manager. One of the key factors is simply to look at your job duties. Does the worker really “manages” or “supervises” other employees. A supervisor who has no control over co-workers, can’t control how they do their work, or who has no decision making authority with regard to how the work is conducted may not be exempt from overtime.

Wal-Mart wage employers in South Carolina filing a class action wage and hour lawsuit will find justice for their unpaid wages–justice to the tune of a $49 million settlement.

This latest wage and hour lawsuit settlement, by no means the first for Wal-Mart (check out the $352M wage and hour lawsuit settlement last year), Carter v. Wal-Mart was filed over six years ago and settled on Wednesday. As part of the settlement, Wal-Mart has agreed to ensure compliance with national and state wage and hour laws by maintaining electronic time clocks and posting notices to workers regarding workers’ rights.

Wal-Mart employs over 1.3 million worldwide, the majority of whom are wage earners who qualify for overtime and wage protections.

I am not sure if it is the economy or just some strange coincidence but it seems my office is fielding more calls than usual with regard to workers not receiving overtime pay. Most people know that they are to receive overtime pay if they exceed 40 hours in a work week. However, we are seeing many employers attempt to cheat their employees out of this pay. There are a few common schemes we see over and over again.

One common example is an employer will give their worker the title of “manager” or “supervisor” They believe since they call the employee a manager they do not have to pay overtime. However, it is not your title that is important but what you actually do at work that is important. Do you actual manage employees; do you hire workers; set their schedule, etc. or do are you like every other worker but for your fancy title? If so, you may be due overtime pay.

Another common practice is to call the employee an “independent contractor” The key factors in determining if you are really an independent contractor in Tennessee is the extent of control. Do you provide your on tools, set your own hours, work for other employers? If not, you may just be a regular employee and entitled to overtime pay.

Discriminated workers and workplace discrimination lawyers in Tennessee and across the U.S. received a boost last week when the Lilly Ledbetter Fair Pay Act became law, allowing discriminated employees facing unequal wages to sue for disparate pay. (Read more in last week’s Tennessee Law Blog’s Pay Discrimination Law Passes Senate). But this wasn’t the only big event in Tennessee employment law last week.

On Monday, the U.S. Supreme Court (the same Court that in 2007 found against Ms. Ledbetter and previous lower courts’ decisions on the statute of limitations allowed by EEOC inquiries) found unanimously in favor of Nashville, TN-local Vicky Crawford in her sexual harassment retaliation lawsuit.

Crawford, former payroll manager for and 30-year employee of Metro Nashville, sued the school district for harassment she claims was based on her testimony during a sexual harassment investigation. While discrimination law allows retaliation protections to the sexually harassed person who files a discrimination lawsuit, federal workplace law was previous to last week unclear whether it offered retaliation protections to persons not directly sexually harassed, as Crawford’s case. The U.S. District Court in Nashville had previously dismissed the lawsuit as did the 6th Circuit Court of Appeals. (Read the original Tennessee Law Blog story on the Crawford discrimination retaliation lawsuit here)

Workplace discrimination lawyers in Tennessee and across the U.S. were expectantly watching coverage or checking our Blackberries for live reports last week as Senate voted 61-36 for the Lilly Ledbetter Fair Pay Act of 2009. This important piece of legislation plugs a two-year hole in workplace pay discrimination law and Tennessee employees’ rights put there by a 2007 Supreme Court decision.

Nearly two years ago, workplace discrimination lawyers and their pay-discriminated clients received a blow from the Land’s highest court when the 5-4 ruling in the case Ledbetter v. Goodyear Tire & Rubber Co. set new precedent for the already strict time limits for filing with Equal Employment Opportunity Commission (EEOC). The decision against Ms. Ledbetter–a Goodyear supervisor in Alabama who worked hard and forgave the long-term sexual harassment she encountered until nearing her retirement she learned her male counterparts had been receiving 15-30% more pay than she had over her 19 years of employment–created a 180-day limitation for filing a discrimination lawsuit. This meant that Ledbetter, and other unequal pay discriminated persons like her, cannot take action against an discriminating employer for pay discrimination if they have been discriminated against for longer than six months after the fact–even though they still earning unequal pay and may have no way of knowing what their coworkers make. Most disheartening of all, the Court’s bizarre interpretation of the discrimination law’s six-month limit stripped Ledbetter of the back pay and compensation for mental anguish a lower court had awarded her for her gender-based pay discrimination and harassment.

Last year, working under the six-month limitation the Court had created, the EEOC (U.S. agency charged with ending employment discrimination) still received 24,826 gender-based discrimination complaints. Women in the U.S. still earn 77 cents to the dollar their male counterparts make, and minority women even less. And this is the case even after the passage of the Equal Pay Act sought to balance out the pay disparities between the genders and reduce discrimination 45 years ago.

Wal-Mart, in an exciting follow-up to Tennessee Law Blog’s Wal-Mart wage and hour lawsuit story posted earlier this month, said Tuesday that it will settle its numerous unpaid wage lawsuits in Tennessee and across the nation. These unpaid Wal-Mart wage and hour lawsuits’ damages amount to at least $352 million and are largely the result of Wal-Mart managers forcing Wal-Mart employees to work off-the-clock.

Many of these wage and hour lawsuits filed by thousands of present and former Wal-Mart employees in 42 states have been in court for years. Wage and hour violations include forcing employees to clock out but continue to work, manipulating time cards to reduce overtime pay, and disallowing lunch and other breaks. Payment to each employee could be in the hundreds of dollars with their respective wage and hour attorneys receiving lawyers fees as separate from their recovered unpaid wages.
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