Many employers still use the fluctuating workweek to manage the payroll of employees who have to work some weekends, but not others. The employers claim it all evens out in the end, but employee advocates say otherwise, especially when it comes to overtime.
The federal Fair Labor Standards Act (FLSA) defines overtime as any time spent working after eight hours a day or forty hours a week. That means any time an employee works more than forty hours within a seven-day time span is overtime, but with fluctuating workweeks, it doesn’t always get counted as overtime. For example, if an employee works six days in a row, but one or more of those days count towards another pay period (in which they have, let’s say, two days off before going back to work) then that sixth day in a row of work never gets counted as overtime, even though it should under the current labor law.
One of the latest companies to be hit with an overtime class action lawsuit as a result of their fluctuating workweek schedule is Cerner, a health information technology company. The employment lawsuit, which was initially filed in 2014, alleged Cerner used a payroll processing system that system failed to properly calculate workers’ overtime wages by not including all the wages, commissions and bonuses they had earned into their regular rate of pay, in addition to the allegedly unfair fluctuating workweeks. When they did pay workers for overtime hours, they allegedly did so a full pay period late.
The wage and hour lawsuit, which was filed by Fred Speer and Mike McGuirk in the U.S. District Court for the Western District of Missouri, consists of three separate classes: salaried employees who are exempt from overtime pay, salaried employees who are not exempt, and hourly employees who are not exempt from overtime compensation. As of February 2015, shortly after the overtime lawsuit was filed, Cerner was employing salaried nonexempt workers in more than 100 business units, and hourly nonexempt workers in more than 200 units all over the country.
Cerner initially tried to have the lawsuit dismissed, claiming, among other things, that the two-year statute of limitations on the named plaintiffs’ FLSA claims had expired; that the classes they were seeking to get certified were too broad; that their allegations did not qualify as violations of the FLSA; and that the plaintiffs could not show that potential class members would be interested in joining a class action lawsuit against their current or former employer.
Despite all these arguments, Cerner recently agreed to pay $4.5 million to settle the lawsuit. They still insist that they treated their employees fairly and legally, but that they would prefer to pay to get the wage and hour lawsuit out of the way and avoid the hassle and expense of continuing to pursue the legal battle, which has already lasted three years, through the court system. The health information technology company agreed to the settlement back in April, but it took until June for U.S. District Judge Fernando J. Gaitan Jr. to approve the settlement. Cerner asked that the terms of the settlement be kept under seal so we won’t know whether the employer agreed to make any changes to its payroll system as a result of the class action lawsuit.
The Chicago employment law and class action lawyers at the Chicago Overtime and Employment Rights Law Center are investigating unpaid overtime claims by waiters and busboys and other restaurant and hotel workers against national restaurant chains including Hilton, DoubleTree, W, Marriott, Sheraton, Holiday Inn, Extended Stay America, Staybridge Suites, Best Western, HomeTown Buffet, Old Country Buffet, Applebees, Chipotle, Red Lobster, Olive Garden, Cracker Barrel, Outback Steak House, Taco Bell, Burger King, Chili’s, Kentucky Fried Chicken, Starbucks, Dunkin’ Donuts, Wendy’s and hotels for misclassifying employees as managers or assistant managers, forcing employees to work off the clock at business, failing to share all tips, erasing or altering time sheets or time records, pressuring workers not to report or record overtime, and otherwise failing to pay workers for overtime and other wages. If you are the victim of these wage theft practices call us at (312) 869-4095 or contact us online.
The Chicago class action attorneys at the Chicago Overtime Law Center have three decades of experience fighting to help employees who are victims of wage, overtime and tip theft by their employers. We have a team of Chicago unpaid overtime lawyers who concentrate on prosecuting state and nationwide class action lawsuits. Our attorneys work out of Chicago and Oak Brook offices and pursue claims for workers all over the Chicago area including Evanston and Skoie. We protect unpaid workers who haven’t received overtime throughout the Chicago area including in DuPage, Lake, McHenry, Kane and Cook Counties.
Our Evanston and Skokie overtime and employment lawyers are intimately familiar with the issues that arise during employment discrimination and wage claim litigation, and we know the laws that govern overtime and civil rights cases well. Many employers misclassify employees as being exempt from overtime laws and pay workers salaries instead of hourly wages in order to avoid paying them overtime. Some employers mistakenly classify employees as exempt and others intentionally do so in order to circumvent the law. In either case, workers do not receive the wages they should, and a lawsuit may be the only way to recover their earned wages.
The Chicago Overtime Law Center is based in Chicago and represents clients throughout the country who have unpaid overtime and other employment right claims.