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In addition to the federal Fair Labor Standards Act (FLSA) and local labor laws that regulate things like overtime and the minimum hourly wage an employee can be paid, Illinois also has the Day and Temporary Services Act, which protects day laborers and temporary workers in Illinois who are even more vulnerable than full-time and part-time minimum wage employees. Day and temporary workers are more likely than other employees to become victims of minimum wage and overtime violations, and are less likely to be paid or to be paid in full, for all the hours they worked.

One of the biggest problems these workers face is employers who want to keep them “on call” for days they may or may not need to come in. Workers are required to keep this time open in case their employer needs them to come into work, but if the employer does not need them, then they don’t get paid for that day and were unable to work another job during that time.

Under the Illinois Day and Temporary Services Act, employers are required to pay their workers at least four hours’ worth of wages on the days that workers have to set aside but are not required to come into work.

Temporary laborers who are hired through staffing agencies are entitled to employment notices from their agencies telling them the days they’ll be working, what kind of work they’ll be doing, the wages they’ll be paid, and whether meals and/or transportation will be provided. They are also entitled to pay stubs that detail the number of hours they spent working within the pay period, the hourly wage they earned, the total amount they were paid during the pay period, and any deductions taken from their pay for things like taxes or equipment. Continue reading

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Internships were designed as a way for students to get some hands-on training, experience, and make some connections, but employers often take advantage of this system to put students to work for free so they can avoid paying employees. Many lawsuits have been filed against employers by interns alleging they should have been compensated for the work they did.

Although the line between intern and employee can sometimes be a bit vague, the Second Circuit Court recently began recognizing the “primary beneficiary” test to determine if a worker should be classified as an intern or an employee. The test is composed of seven parts, although more factors can certainly be considered. The aspects used by the Second Circuit include:

  • Whether both parties agree ahead of time that there is no compensation expected;
  • Whether the intern will receive training on par with the kind they would receive in an educational setting;
  • Whether the intern can receive educational credit for the internship and/or the internship is connected with some sort of formal education program;
  • Whether the internship corresponds with the academic calendar in order to accommodate the intern’s educational commitments;
  • Whether the duration of the internship is limited to the period that provides the student with education and experience that benefits them in their education;
  • Whether the intern’s work takes the place of work normally done by employees; and
  • Whether both parties understand there is to be no expectation that the intern will receive a paid job offer once they’ve completed their internship.

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While employees being made to work off the clock is a serious issue that needs to be addressed, one must be careful about how it is addressed. A plaintiff bringing a complaint of this sort may have a case for missed wages and for performing work-related tasks for which they were never paid, but filing allegations that their employer paid them less than the federally mandated minimum wage may not always be advisable, depending.

While some employees have managed to achieve settlements, or even court rulings in their favor when claiming missed wages, two recent wage and hour lawsuits against SkyWest Airlines have just been dismissed.

The class action lawsuits were filed by Andrea Hirst and Cheryl Tapp, both of whom worked for SkyWest from 2010 until 2015. They filed separate lawsuits against their former employee, alleging they had been paid less than minimum wage because of all the off-the-clock work they had allegedly performed without pay.

While SkyWest claims it pays each flight attendant no less than $17 per hour, that rate was allegedly only paid for the time flight attendants spent on the airplane with the cabin door closed. That meant they were not paid for any of the allegedly necessary tasks they performed before the cabin door was closed and after it was opened. These tasks included cleaning up after customers, clearing airport security, and reading and responding to emails with essential information regarding their upcoming flights. According to the lawsuits, when taking into account the extra hours flight attendants spent working for SkyWest, their wages allegedly fell below $7.25 per hour – the federal minimum wage an eligible, hourly worker can be paid while working in the United States. Continue reading

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In addition to the federal minimum wage (which is currently still set at $7.25 per hour), each state, county, and city set their own minimum wages and employers are required to pay their workers no less than the highest minimum wage for their area. This remains true no matter how the employees are paid. Whether it’s hourly, by day, by project, on commission, or a salary, every worker is entitled to receive at least minimum wage for all the time they spend working.

According to a recent class action wage and hour lawsuit against Life Time Fitness Inc. in Illinois, fitness trainers were paid on commission and allegedly misclassified as exempt from overtime. If they earned less than 1.5 times the minimum wage through their commission, the difference was paid using something the gym called a “draw,” but that amount would be deducted from a later paycheck when the trainer made more than 1.5 times the minimum wage through their commission. These draws were also allegedly applied to their manager’s paycheck.

Instead of encouraging trainers to solicit more business, most managers chose to respond to this financial penalty by cutting corners with the hours of the trainers they supervised. Managers allegedly encouraged their trainers not to clock in until they were actively serving clients and to clock out as soon as they were done servicing clients. All the other tasks trainers were required to do, such as cleaning equipment, conducting fitness tests on prospective clients, and spending time on the gym floor to solicit new business, were allegedly done without pay. Trainers who failed to comply were allegedly fired as a result. Continue reading

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Employers are allowed to pay their tipped workers a lower minimum wage than workers who do not earn tips, but paying them tips without any wages is not legal under the federal Fair Labor Standards Act (FLSA) of 1938. Even when tipped employees are paid the lower minimum wage, the tips they earn, plus their wages, must add up to at least the standard minimum wage to which all other workers are entitled. If their earnings fall below the standard minimum wage, the employer is required to make up the difference.

According to a wage and hour lawsuit filed against Café Misono Inc. by the Department of Labor (DOL), the restaurant allegedly refused to pay at least one waiter anything at all, requiring that employee to live off their tips alone. Continue reading

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Although arbitration was not designed to handle class actions or collective actions, mediation with the help of an arbitrator can be achieved for a group of plaintiffs, with the help of class representatives, as in the recent wage and hour lawsuit against Google Fiber Inc. and ITC Service Group Inc.

Google Fiber hired ITC as a contractor to install and service Google’s products in Kansas City, one of the cities in which Google provides its own brand of internet and TV services. While working on Google Fiber’s products, employees for ITC allege they were made to perform work for which they were never paid, including work they performed before their shifts began, and work they did over their unpaid lunch breaks when they were “clocked out.”

The lawsuit further alleged supervisors were misclassified as exempt from overtime, even though they allegedly did not meet all the requirements for the FLSA’s overtime exemption.

When the lawsuit was first filed, ITC was the only defendant listed on the complaint, but Google Fiber was later added as a second defendant. Not only were the ITC workers performing work for Google Fiber, but they also allege that they were made to announce themselves as Google employees and wear gear bearing the Google brand while on the job. As a result, the complaint alleged Google was at least partially responsible for the alleged wage and hour violations. Continue reading

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The idea of being one’s own boss is very appealing to many people all across the country, although it often sounds better in theory than it works out to be in practice.

The rise of the so-called “gig economy” in recent years, as a reaction to both the recent Great Recession and an increased ability to telecommute and do odd side jobs on a regular basis, has given millions of Americans the chance to be their own boss.

But are they really their own boss?

The federal Fair Labor Standards Act (FLSA) provides certain protections for employees, including defining overtime, requiring they be paid a premium hourly rate for all the overtime they spend working, defining minimum wage, and requiring employers to help pay taxes and social security benefits for each of their employees. Continue reading

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Since federal courts tend to rule in favor of Big Business, most companies prefer to dispute overtime lawsuits in federal court, but their ability to do so has some limitations. Among those limitations is the requirement that the total amount of the claims for which plaintiffs are filing add up to at least $5 million.

According to a California federal judge, an overtime class action lawsuit against Bank of America did not meet that requirement, so Judge Vince Chhabria granted the plaintiff’s request to remand the case back to Alameda County Superior Court.

Bank of America allegedly underpaid its business bankers by refusing to properly compensate them for the hours they worked after eight hours in a day or forty hours a week. In its motion to have the case moved to federal court, Bank of America alleged the claims involved, plus the attorneys’ fees and legal costs, added up to at least $8 million.

Judge Chhabria did not follow the bank’s logic, since that number assumes each plaintiff worked 2.5 hours of overtime for 90% of the weeks in the proposed class period.

Laura Lopez, one of the named plaintiffs in the proposed class action lawsuit, provided evidence that she did not actually work that many hours of overtime for most of the weeks included in the class period – some weeks she worked no overtime and she was on vacation for others. Continue reading

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10 Most Common Wage Violations in Illinois

1) Not Paying Overtime

The federal Fair Labor Standards Act (FLSA) requires employers to pay all their non-exempt, hourly workers at least one and one-half times their normal hourly rate for all time they spend working after eight hours a day or forty hours a week. But employers continue to find ways to avoid paying overtime – from refusing to log the overtime hours to misclassifying their hourly employees as exempt from overtime, even if they don’t meet the requirements.

2) Making Improper Deductions from Employees’ Pay

Employers can make certain deductions from their employees’ pay without the employees’ permission, such as taxes and social security. Anything else requires express, written permission from the employee at the time the deduction is made, but many companies take advantage of this and make illegal deductions from their workers’ pay without their consent, thereby making their employees (especially their low-income employees) pay for some of the company’s overhead costs.

3) Miscalculating Overtime Rate

Most companies just multiply their employees’ normal hourly rate by 1.5, multiply that by however many overtime hours they worked, and leave it that. In many cases, that’s probably fine, but if the employee earned any tips, bonuses, commissions, or any other income during the overtime pay period, that income also needs to be included when calculating their overtime rate, but many employers neglect to do so.

4) Improper Use of Tip Pooling

Because employees who earn tips can be paid a lower minimum wage ($4.95/hr in Illinois compared to $8.25/hr) many restaurants look for ways to justify paying the lower minimum wage, even to employees who don’t earn tips. Many of them do this by making tipped employees, such as servers, share their tips with non-tipped employees, such as cooks and dishwashers.

5) Manipulating Timecards to Make It Look Like Employees Worked Less Time

Some employers round out an employee’s time when they punch in or out, often resulting in the employee working a few minutes more or less than the time for which they get paid. It may not seem like much, but those few minutes add up over time. Other companies simply refuse to include all the hours their employees spent working, especially overtime, so they can pay them less than they earned.

6) Misclassifying Employees as Independent Contractors

Companies don’t have to pay taxes, social security, or benefits for the independent contractors they hire, but because those expenses fall on the worker, there are specific requirements a worker needs to meet in order to qualify as an independent contractor. Far too many companies have been misclassifying their employees as independent contractors and placing the burden of these extra expenses on low-earning workers who can’t afford them. Continue reading

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Although the Department of Labor (DOL) is not a governing body, it is a government agency that has been charged with protecting American workers from employers who might try to take advantage of them. Because it is not part of the legislative branch of government, the DOL cannot make laws, but it can make rules. But a question that often arises is whether those rules are enforceable.

The specific rule in question this time is one in which the DOL raised the minimum salary a worker must be paid before they can qualify for the overtime exemption under the federal Fair Labor Standards Act (FLSA). The FLSA put the salary limit at $23,660 per year, but that was more than ten years ago, and under the Obama administration, the DOL more than doubled it to $47,476 per year.

The new rule faced massive opposition from 21 states and numerous business groups, including the U.S. Chamber of Commerce, which filed a lawsuit against the DOL, claiming the department did not have the authority to either create or enforce such rules. The rule was supposed to go into effect on December 1, 2016, but the week before, a federal judge filed an injunction against the rule.

The injunction was meant to be a temporary measure by which the court could gain more time to consider the dispute. But since the court still has not reached a final decision on the matter, what are employers supposed to do in the meantime? Continue reading