Wage & Hour Counsel : Wage & Hour Lawyer & Attorney : Littler Mendelson Law Firm : Employment Law, Labor Relations

The County of Miami-Dade in Florida recently enacted a "Wage Theft " ordinance which makes it a crime for an employer to "fail to pay any portion of wages due to an employee, according to the wage rate applicable to that employee, within a reasonable time from the date on which that employee performed the work for which those wages were compensation."

The law defines the term "reasonable time" to mean within 14 days, unless the employer and employee agree in a writing signed by the employee to extend the deadline for payment up to 30 days from the original date . Under the new law, employees owed $60 or more in wages may file a complaint with the county. The county will then serve the employer with notice of the claim and a hearing officer will determine the amount of past wages owed and assess liquidated damages equivalent to double the amount of past wages owed. The new law became effective on February 28, 2010.

This entry was written by Paula Steele.

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On August 21, 2009, the Massachusetts Supreme Judicial Court unanimously ruled that a worker who has been misclassified as an independent contractor may seek damages from his former employer even if the employer establishes that the worker would have been paid less had he been classified as an employee.

The plaintiff in Somers v. Converged Access , 454 Mass. 582 (2009) worked for a software company as a quality assurance engineer. He was classified as an independent contractor and, as a result, did not receive overtime, vacation pay, or benefits. The company paid him at a rate of $65 per hour. The plaintiff initially agreed to work for a sixty-day term. He later agreed to a ninety-day extension of that term.

The plaintiff subsequently applied for a permanent quality assurance engineer position. After the company did not select him for the position, the plaintiff brought suit claiming, among other things, that he had been misclassified as an independent contractor.

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Within days of each other, the governors of New Mexico and Iowa signed legislation that significantly increases the penalties for wage and hour violations in those states. The New Mexico statute also creates new causes of action.

On April 6, 2009, the governor of New Mexico signed House Bill 489 into law. The new law becomes effective on June 19, 2009. HB 489 amends the state Minimum Wage Act to prohibit employers from retaliating against employees for filing claims or asserting rights under the law, for helping someone else pursue a claim, or for notifying someone else about their legal rights.

HB 489 also lengthens the statute of limitations for wage claims from one year to three years after the last violation occurs, and provides that an investigation by the Labor Relations Division of the Workforce Solutions Department tolls the statute of limitations. In addition, HB 489 contains a continuing violations provision, meaning that a civil action brought under the Minimum Wage Act may encompass all violations that are part of a continuing course of conduct, no matter when they occur.

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The Wage & Hour Division of the U.S. Department of Labor recently issued an opinion letter that could produce substantial savings for employers who have misclassified employees as exempt from the overtime provisions of the FLSA and who need to retroactively compensate those employees for unpaid overtime.

An employer may pay its employees a fixed salary. But, when a non-exempt employee works more than forty hours in any workweek, the Fair Labor Standards Act (FLSA) requires his or her employer to pay overtime at one and one-half times the regular rate of pay. 29 U.S.C. section 207(a)(1).

If an employer and a non-exempt salaried employee have a “clear mutual understanding” that the employee’s salary is compensation for all hours worked each week (whether many hours or few), then the FLSA permits the employer to use the “fluctuating workweek” method to calculate overtime. Applying this method, the employee’s salary is deemed to constitute straight-time pay for each hour of work (including overtime hours), and the employer must pay the employee only the additional “half time” premium for each overtime hour. 29 C.F.R. § 778.114.

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For the past several years, plaintiffs have routinely sought punitive damages in their wage and hour actions under the California Labor Code. A December 3, 2008 decision by the California Court of Appeals for the Fourth Appellate District may put a stop to that practice.

The plaintiff in Brewer v. Premier Golf Properties sued her former employer for denying her meal and rest breaks, failing to pay her minimum wage for all hours worked, and not providing her with accurate itemized wage statements. The jury awarded the plaintiff $26,300 in unpaid wages and penalties and, after finding that the defendant employer had engaged in malice, awarded the plaintiff an additional $195,000 in punitive damages.

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