Outten & Golden: Empowering Employees in the Workplace

Archive for the ‘overtime pay’ Category

Why Are Millions of Workers Excluded From Minimum Wages?

Thursday, September 30th, 2010

Image: Richard NegriThe United States is a country where hard work is supposed to be rewarded. If you agree with that, would you be shocked to learn that there are more than 1.6 million homecare workers who are being denied federal minimum wage and overtime protections under current labor laws? And it is almost 2011!

Chew on this for a minute: More than 1 million hardworking Americans are legally denied basic labor rights most of us take for granted at this point. How did that happen, what can we do to change that?

It all goes back to The Fair Labor Standards Act (FLSA), which was enacted in 1938 to ensure a minimum standard of living for workers through the provision of minimum wage, overtime pay, and other protections – yet, domestic workers were excluded.

In 1974 the FLSA was amended to include domestic workers, such as housekeepers, full-time nannies, chauffeurs, and cleaners. However, people who were described as “companions to the elderly or infirm” were for some reason excluded from the law. They were compared to babysitters…

I love asking the question: If your elderly family member needed homecare to change herself, use the bathroom, get lifted from the chair to the sofa, and then have her meds dispensed at specific times; would you call the babysitter you call for date night with your spouse? Of course you wouldn’t, so why does the government consider these hardworking homecare providers babysitters? Yeah, I don’t know either.

In 2001 the Clinton Department of Labor finds that “significant changes in the home care industry” have occurred and issued a “notice of proposed rulemaking” that would have made important changes to this bizarre exemption. So, that was good news, right?

It was good news until W came to town. The Bush Administration terminated the revision process shortly after taking office. Thanks, W!

Then comes 2007: the US Supreme Court, in a case brought by New York home care attendant Evelyn Coke, upheld the DOL’s authority to define this exception to the FLSA. In short, that means that this crazy archaic law can be reversed beginning with the DOL, today.

Before we get you to take action on this situation, please keep in mind that these million-plus workers are currently living at near poverty level earning a median income of $17,000 a year. Most of these workers, who both love their work and are good at their work, must have two and three jobs to just make ends meet. With this scenario in play, these workers are quick to burn out or leave their trade entirely. This ultimately comes back to the consumer who often finds it difficult to hire and retain high quality home care services.

This article was originally posted on SEIU”s Blog.

About the Author: Richard Negri is the founder of UnionReview.com and is the Online Manager for the International Brotherhood of Teamsters.

Basic federal labor regulations would definitely help

Thursday, September 9th, 2010

Image: Richard NegriYou are deep in mandatory overtime (which you don’t get OT pay for) and you’re so exhausted that you start making really bad mistakes – dangerous mistakes.

We’ve all been there in one way or another in our working lives, but what if you were a patient and the exhausted worker making the mistakes was your resident physician? Obviously it can be a life or death situation for you. Resident physicians work shifts as long as 30 hours as often as three times a week, which can lead to physician fatigue and medical errors.

“As future physicians, we greatly value the well-being of our patients and know that we can serve them better if we are well ourselves,” says Sonia Lazreg, health justice fellow with the American Medical Student Association (AMSA).

Dr. Charles Preston, a researcher with Public Citizen’s Health Research Group and preventive medicine resident at Johns Hopkins School of Public Health says, “After a busy night on call, I remember a couple of times when I literally fell asleep on my patients standing up during morning rounds. I’d fall asleep while writing my patient progress notes. And driving home, I was careful to turn up the radio or blast the air conditioning so that I would at least have something more to keep me awake.” Can you imagine?

So, why is this dangerous system still in place?

Despite evidence that excessive work hours contribute to depression, car crashes, needle stick injuries and even premature labor for pregnant physicians, there are no Occupational Safety and Health Association (OHSA) rules protecting residents from these risks.

OSHA, which is part of the Department of Labor, is responsible for enforcing safety and health legislation, and it just doesn’t have the doctors-in-training on its radar … yet!

To get the OSHA radar blipping, consumer and health advocacy organizations delivered a petition to the agency today. You can read the petition here, and at the bottom of this entry you can see the full list of those petitioning OSHA.

The federal government already regulates work hours and sets rest-period requirements in a variety of industries, including the highway, aviation, railroad and maritime transportation industries, because fatigue plays a major role in transportation safety. In none of these industries are workers allowed to work hours even remotely as long as these physicians. Resident physicians deserve to have similar protections from excessive work hours that don’t give them adequate rest.

“OSHA must intervene so that physicians in training are no longer at risk for needle stick injuries, car crashes and other hazards that we know stem from chronic sleep deprivation.” says CIR/SEIU Healthcare President Dr. Farbod Raiszadeh.

Please get involved with this important situation. It will help you at the same time as some hardworking people.

For ideas on how to get involved, and to see this original article, visit SEIU.

About the Author: Richard Negri is the founder of UnionReview.com and is the Online Manager for the International Brotherhood of Teamsters.

Putting Wage Theft on the Map (Literally)

Monday, December 7th, 2009

Image: Adam KaderWorkers employed in low-wage and poorly regulated industries (most prominently restaurants, residential construction, domestic cleaning, and mechanics) are confronted with staggering exploitation as employers look to cut corners in today’s recession. Such exploitation includes health and safety violations, discrimination, sexual harassment, retaliation, firing for participating in union activity, and wage theft—failure to pay workers for work performed, including overtime hours and final pay periods.

To combat this wave of illegality, a Chicago worker center has collaborated with a local university to create a map of law-breaking employers against which they have organized, giving workers and activists a powerful visual tool to bring to politicians and the community.

The Arise Chicago Worker Center has no shortage of evidence for the dire conditions facing Chicago’s low-wage workers, having collaborated with over 2,050 workers in the past seven years.

None of the restaurant workers who have contacted our organization during that time received overtime wages. One of our members seriously injured his back at a construction site, but his employer refused to pay legally required workers’ compensation. One African-American member, who works for a state-funded social service agency, has consistently received paychecks one to three weeks late, for more than two years. A group of candy manufacturers were denied bathroom breaks.

Recently, we spoke with a Guatemalan immigrant car wash worker who works from 7 a.m. to 8 p.m., six days a week, for $5.25 an hour. He does not receive overtime pay and takes home an average of $9 a day in tips. If that weren’t enough, the employer does not provide gloves needed for the work, and illegally deducts the cost of the workers’ required uniform from his paychecks.

With the help of the University of Illinois-Chicago Center for Urban Economic Development, Arise has mapped by ward—a political district—the law-breaking employers against which Arise has organized. The maps illustrate law-breaking employers in 43 of Chicago’s 50 wards, affecting workers living in 47 of the wards.

Groups of worker center members plan to meet with their ward aldermen to discuss workplace abuses and enlist support for a city response to the biggest problem facing low-wage workers: wage theft.

Clergy whose congregations are located in the 43 wards will join the workers. Recently, Catholic Bishop John Manz attended a meeting with Alderman Danny Solis in the 25th Ward, where Arise has recorded a dozen labor violations.

Solis committed to introducing the issue to the city council’s Hispanic Caucus, whose wards include great concentrations of Arise membership. Alderman Mary Ann Smith’s office offered to explore legislative strategies that could deny additional business permits to law-breaking employers. Additional meetings and research are planned to determine the best approach to address wage theft in Chicago—which may include a citywide ordinance that could make stealing a worker’s wages treated like other forms of theft.

*This post originally appeared in Labor Notes on December 3, 2009. Reprinted with permission from the author.

About the Author: Adam Kader (www.arisechicago.org) is the director of the Arise Chicago Worker Center, part of the national Interfaith Worker Justice network.

California's Salaried Workers Score a Victory

Tuesday, April 7th, 2009

On Thursday, March 19, 2009, the Ninth Circuit Court of Appeals reversed a District Court’s order and reinstated a class action lawsuit against FedEx Kinko’s Office and Print (“FedEx”) seeking unpaid overtime and related penalties on behalf of a class of hundreds of the company’s Center Managers. This short three page decision carries monumental implications which extend far beyond the class members of this single action to reinforce the rights of all California employees who are paid on a “salaried” basis and denied compensation for their overtime work.

The case filed in May 2005 alleged that Center Managers at FedEx’s California Stores were improperly classified as “exempt” from overtime pay under California law on the basis that these employees met what is commonly referred to as the “managerial” exemption. Under California law, exemptions from overtime pay are narrowly construed and the employer has the burden to prove the exemption applies. For the managerial exemption to apply, the employer must prove, among other things, that the employees spend more than one-half of their work time on exempt duties and “customarily and regularly” exercise discretion and independent judgment under Cal. Labor Code § 515.

The case was certified as a class action in 2006. In May 2007, FedEx moved for summary judgment asking the District Court to conclude that the entire class was exempt from overtime under California’s “executive” exemption. The District Court agreed and granted Defendant’s motion. The Plaintiff appealed to the Ninth Circuit seeking to have that decision overturned.

The Ninth Circuit reversed the District Court’s decision holding that the class members testimony and expert witnesses raised triable issues regarding whether the Center Managers were primarily engaged in management duties. The decision is important as it reinforces the heavy burden employers must meet in order to show that their employees are spending at least half of their time on exempt tasks – merely referring to those employees as “managers” is not enough.

By reversing the District Court’s finding for FedEx, the Ninth Circuit sent a clear message of the Court’s intention to require employers who seek to circumvent overtime laws by paying their employees fixed salaries to provide substantial evidence to support these decisions – rather than merely referring to thoseemployees as “managers”. The fact that the decision was issued a mere eight days after the hearing is somewhat unusual and bodes well for the rights of all salaried employees throughout the state.

In light of the ruling, the parties will be proceeding toward trial. If successful there, hundreds of FedEx Center Managers could recover compensation for years of lost wages. Employees with similar claims would be well advised to strike while the iron is hot in seeking to recover owed wages pursuant to this ruling. If you are currently working in the state of California and are not receiving overtime pay (or if you are an attorney currently representing such an employee), please visit the Scott Cole & Associates, APC website to obtain further information regarding this lawsuit.

About the Author: Matthew R. Bainer, Esq. is an experienced and successful advocate of employees’ rights and has successfully represented tens of thousands of employees, both in California and throughout the nation. Mr. Bainer, a well-respected practitioner in his field, has written for both legal periodicals and academic law reviews. For more information about Mr. Bainer and his firm, please visit the Scott Cole & Associates, APC website at www.scalaw.com.

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