Checklist For Employment and Labor Lawyers
Wage and Hour Questions to Ask Employee Clients for Potential Referrals as Class Action Cases
Lawyers with clients who are employees of large or multiple-outlet private companies–technology companies or large companies with in-house IT staff, financial institutions, retail establishments, grocery stores, restaurants, hotels, manufacturing plants, security guards, hospitals, nurses, and equipment repairmen and installers, to name just a few–can ask clients the following questions to determine whether there may be a class of employees affected by a common practice relating to wage payments.
Our firm has innovative arrangements for co-counseling referrals for employee class actions focusing on wage and hour violations.
Here are some common inquiries for clients:
I. OVERTIME ISSUES (SALARIED, COMMISSION, HOURLY AND PIECE-RATE EMPLOYEES)
Salaried employees who work overtime but are misclassified as exempt are entitled to back pay for four years. Information Technology (IT) employees, especially those in the technical support positions, are generally misclassified if paid a salary with no overtime premium pay. Retail commission sales employees who do not earn more than 50% of their income from sales commissions are entitled to overtime pay. Non-retail commission employees (loan officers, bank employees, recruiters, insurance salespeople, auto salespeople, stock brokers, and others) may also be entitled to overtime. Hourly employees who routinely work off the clock are entitled to compensation. Piece-rate employees are entitled to a special overtime rate.
Are you not receiving overtime for work in excess of eight hours per day and/or forty hours per week because you are called a manager, administrator, or professional? Examples include computer technicians and other IT employees; retail store and restaurant managers and assistant managers, and office administrative personnel.
Have you been “reclassified” from salaried to hourly without being paid back pay for the prior four years of overtime hours?
Are you not receiving overtime pay because you are a commission-based employee (not selling retail merchandise) such as a loan officer, stock broker, recruiter?
Are you an hourly-paid employee working an “alternative workweek schedule” of four 10-hour or three 12-hour days” If so, did the employees ever (either before or after you were hired) choose this arrangement by a secret ballot with two thirds approving?
Are you required to run errands for managers on the way to or home work? Are you asked to begin working clocking, punching, or swiping in, or to prepare paperwork or perform other work after checking out? This is called “off-the-clock” time. If so, you are entitled to your regular rate of pay for all hours up to eight hours per day, forty hours per week, and premium pay for overtime.
Do you work on a “piece rate” basis, paid on the basis of the number of tasks performed? If so, are you paid overtime for hours over 8/40? Is the hourly overtime pay equal to your total weekly pay divided by the total hours worked divided by half? Are you provided paid rest breaks and unpaid meal breaks?
II. REIMBURSEMENT FOR BUSINESS/UNIFORM EXPENSES / IMPROPER DEDUCTIONS (COMMISSION AND HOURLY EMPLOYEES)
An employee is entitled to be reimbursed by his or her employer for all expenses or losses incurred in the direct consequence of the discharge of the employee’s work duties, including driving, cell phone, advertising, and uniform purchase and maintenance costs.
Do you incur expenses in connection with your employment that your employer does not reimburse? For example, mileage/transportation costs, cell phone, advertising.
Does your employer require you to pay for your own uniform?
Does your employer take deductions from your commissions or wages to pay salaries or bonuses of assistants or to cover uncollected fees or other shortages?
III. TIPS AND MINIMUM REPORTING PAY (HOURLY EMPLOYEES)
Tips may not be credited to reach minimum wage, and no portion may be retained by the employer.
Employees must be provided half their scheduled shift or commensurate “minimum reporting pay” each day they report for work and are sent home but (unless they voluntarily choose to leave).
Does your employer credit your tips toward your hourly pay to reach minimum wage?
Does your employer require you to pool tips with other employees with the company keeping any portion?
Does your employer provide you with at least half your regularly scheduled hours when you report for work and pay you for that amount if you are sent home before working half your shift?
Does your employer require you to attend meetings on non-scheduled days or times without paying for a minimum of two hours?
IV. MEAL PERIODS (COMMISSION, PIECE RATE AND HOURLY EMPLOYEES)
Employees are owed an hour of pay each day they are not provided an uninterrupted 30 minute meal period (for shifts of five hours or more). The meal period is mandatory and cannot be waived.
Does your employer provide you uninterrupted meal periods of 30 minutes or more within the first five hours of work?
Are you relieved of all duties during your meal period?
Are you free to leave the premises or required to stay?
If you signed an “on-duty” meal agreement (to take paid meals periods during which you continue to work or be available to work), are there times during the day when the nature of your work does not prevent you from taking 30 minutes for lunch off duty?