Wage theft is simple: an employer takes money that belongs to an employee. The schemes to do so, however, can be complex. Migliaccio & Rathod LLP’s wage theft attorneys in DC are experienced at seeing through smoke and mirrors to hold employers accountable when they break the law. Practicing nationwide, the firm has recovered millions of dollars in wage theft suits on behalf of their clients.
Please contact our employment attorneys for a free consultation if you believe you have been a victim of wage theft. Some common wage theft schemes are below:
Misclassification. Federal law (and often state law) state that employees should be paid time and a half for hours worked over 40. There are some exceptions, but employers often stretch the bounds of these exceptions and break the law in doing so. For example, one exemption to paying overtime is if an employee is an “executive.” Some employers will claim this exemption by labeling an employee a “manager” and making him or her work long hours, even though the primary duties of the job are actually more similar to that of hourly employees. In such instances, the employee may be misclassified as exempt and therefore entitled to overtime pay at a rate of time and a half.
Unpaid Off the Clock Work. Some employers may make employees work off the clock such as by doing work before a shift begins, after it ends, or during unpaid breaks. Employers may also not pay not for certain work such as safety meetings, traveling to work sites, and other preparatory work. This is usually unlawful.
Tip Credit Violations. The minimum wage for tipped employees is $2.13 and is even higher in some states. In order for a business to pay a tipped employee a cash wage lower than the standard federal minimum wage of $7.15, several qualifications must be met. If an employer fails to meet just one of these requirements, the employee is entitled to the federal minimum wage, in addition to tips they might receive. Wage theft attorneys in DC fight for workers’ rights.
Common violations include:
- tip credit claimed by the employer exceeds the actual amount of tips received
- tips are retained by the employer instead of the employee
- the inclusion of non-tipped workers in a tip pool
- paying an employee a tip wage when over 20 percent of his or her job involves tasks that do not normally receive tips.
Improper Use of Independent Contractor Status
The FLSA’s minimum wage and overtime provisions only apply to employees. Independent contractors are not employees and therefore not subject to the benefits of the FLSA. Just because your employer calls you an “independent contractor,” though, does not make you one. In general, these are the guidelines to determining whether or not a worker is an employee:
- the worker is integral to the employer’s business, it is more likely that the worker is economically dependent on the employer and less likely that the worker is in business for him or herself
- the worker exercises managerial skills that affect his or her opportunity for profit and loss
- the worker makes some investment to indicate that they are an independent contractor
- the worker’s skills demonstrate that he or she exercises independent business judgment.
- permanency or indefiniteness in the worker’s relationship with the employer suggests the worker is an employee
- degree of control by the employer. An independent contractor generally works free from control by the employer.
Many times someone called an “independent contractor” is actually not one and therefore entitled to minimum wage and overtime guaranteed by the law.
Half-Time or Fluctuating Work Week Violation
The general rule of thumb is that for every hour worked over 40 in a week, a worker should be paid time and a half (or 1.5) times his or her regular rate of pay, even if the worker earns a salary. Some employers, however, will pay employees a set weekly salary but just one-half (0.5) of their regular rate so that the workers actually make less for hours worked over 40. This can be a lawful exception to the general rule but only if some very strict criteria are met:
- the employee must work hours that fluctuate from week to week
- the employee must be paid a fixed salary that serves as compensations for all hours worked
- the fixed salary must be large enough to compensate the employee for all hours worked at a rate not less than the minimum wage
- the employee must be paid an additional one half of the regular rate for all overtime hours worked
- there must be a “clear mutual understanding” that the fixed salary is compensation for however many hours the employee may work in a particular week, rather than for a fixed number of hours per week.
It is often the case that there is a lack of “clear mutual understanding”, violating the FLSA and giving employees a basis to seek compensation for underpaid overtime.
Straight Time for Overtime
Unless specifically exempted, the FLSA requires employers to pay employees one and one-half times their hourly rate for each hour beyond 40 in a workweek. Paying workers a straight-time rate for overtime violates the law.
For information on Wage Theft Settlements visit Class Action Settlements & More.
Sours v. Jac Products, Inc., Case No. 2:22-cv-10532 (E.D. Mich.). Migliaccio & Rathod LLP, along with co-counsel, has filed a class action lawsuit against JAC Products, Inc. over allegations that JAC failed to pay employees the proper overtime rate because it did not include non-discretional bonuses in its calculation of the regular rate. As of January 2023, conditional certification of the class was granted. For more information, visit our blog here.
Osorio v. Rust-oleum Corporation, Inc., Case No. 1:22-cv-02419 (N.D. Ill.). Migliaccio & Rathod LLP, along with co-counsel, has filed a collective action lawsuit, Osorio v. Rust-oleum Corporation, Inc., over allegations that Rust-Oleum failed to pay employees the proper overtime rate. The Plaintiff alleges that Rust-Oluem did not include non-discretional bonuses in its calculation of the regular rate, thereby omitting portions of owed wages. As of January 2023, this case is in mediation. For more information, visit our blog here.
Prince v. Brickyard Healthcare, Inc. (Golden LivingCenters) Et Al, Case No. 1:22-cv-01753 (S.D. Ind.). Migliaccio & Rathod LLP, along with co-counsel, has filed a collective action lawsuit against Brickyard Healthcare Et Al. over allegations that it failed to pay employees proper overtime rate because it did not include shift differentials and various non-discretionary bonuses in calculations of the regular rate. The complaint was filed in September 2022, and litigation is ongoing. If you are an hourly employee who earned any non-discretionary extra pay (e.g., performance or spotlight awards, COVID or hazard pay) in the last three years and suspect it was not factored into your overtime pay, you may be entitled to compensation. Please visit this page for more information and to contact us.
Collins v. District of Columbia Fire and Emergency Medical Services Department, Case No. 1:21-cv-02941 (D.D.C). Migliaccio & Rathod LLP represents employees of the District of Columbia Fire and Emergency Medical Services Department in a collective action suit alleging that the District routinely failed to properly calculate overtime compensation. The claims emerged as a result of extra pay, such as hazard pay, included in employees’ paychecks where subsequent overtime rates were not adjusted according to the increased regular rate of pay. We are currently navigating settlement negotiations in hopes of putting owed wages back into employees’ pockets. If you believe you were similarly shorted on overtime pay during time periods in which you received extra pay, find more here.
Tipped Employee Rights:
Misc. Wage Theft
Misc. State and City Specific Statutes
*Prior results do not guarantee a similar outcome