Oil Field Overtime Lawsuit

Oil Field Overtime LawsuitI am writing this post to give an example of the type of allegations made in an oil field overtime lawsuit.  Here is language from a lawsuit regarding top-drive technicians in an oil field overtime lawsuit.

Oil Field Overtime Lawsuit

  • Defendant has approximately 330 marketable land-based drilling rigs that operate primarily in oil and natural gas producing regions of Texas, New Mexico, Oklahoma, Arkansas, Louisiana, Mississippi, Colorado, Utah, Wyoming, Montana, North Dakota, Pennsylvania, West Virginia, Ohio and Western Canada.
  • Plaintiff worked for Defendant at its Springtown, Texas location as a top drive maintenance technician from approximately July, 2011 to November 2, 2012.
  • During the time period, Plaintiff’s’ job responsibilities consisted of addressing, as directed by Defendant, the maintenance of the top drive motors on the drilling rigs at Defendant’s work locations and drilling rigs in or near Springtown, Texas.
  • Plaintiff’s primary job duties consisted of manual labor tasks in the form of repair, maintenance and other non-office, manual labor work.  Plaintiff was also responsible for various other non-discretionary tasks.  These other non-discretionary tasks Plaintiff performs are routine and do not require the exercise of independent judgment or discretion.
  • At all times during his employment, Plaintiff was treated as an exempt employee for purposes of the FLSA, was paid a salary for his work, and was not paid time and one-half his regular rate of pay for hours worked in excess of 40 hours in a work week.
  • Defendant knowingly, willfully, or with reckless disregard carried out its illegal pattern or practice of failing to pay overtime compensation with respect to Plaintiff.
  • The FLSA requires employers to keep accurate time records of hours worked by nonexempt employees.  29 U.S.C. § 211 (c).
  • In addition to the pay violations of the FLSA identified above, Defendant also failed to keep proper time records as required by the FLSA.
  • Plaintiff has retained the Law Office of Chris R. Miltenberger, PLLC to represent him in this litigation and has agreed to pay a reasonable fee of its services.

This is the type language included in oil field overtime lawsuit.

Overtime for Salaried Workers

Overtime for Salaried WorkersOvertime for salaried workers may now be required. Today, in a historic move, the U.S. Labor Department issued updated overtime rules that will change life an estimated 12.5 million salaried workers who will now qualify for overtime pay.

 

The new rules will raise the salary threshold that employers must meet before they can deny overtime pay to certain workers—from $23,660 to $47,476. The old threshold was so low that even some workers living below the poverty line did not qualify for overtime.

 

Now, all salaried workers earning less than $47,476 per year will be entitled to overtime pay for working more than 40 hours a week, regardless of their job title.

 

While the rule raises the applicable thresholds for various exemptions, it also allows employers to count earnings paid to employees as bonuses and commissions toward meeting the salary threshold.  Specifically, the rule permits employers to meet up to ten (10%) of the salary threshold with amounts paid to employees as bonus and commission payments.

 

This means that employers can no longer use a loophole in the law—the pretense of managerial or other specialized duties—to deny these workers overtime pay or require them to donate their labor, free of charge, in extra hours of unpaid work. In short: the new overtime rule means a higher income or more time for family and friends—a better life overall—for millions of workers.

 

The loopholes many companies attempt to use to not pay overtime for salaried workers are the exemptions to the FLSA.  The “executive,” “administrative,” and “professional” exemptions are the ones on which most companies rely. This will no longer be allowed unless the higher salary threshold is met.

 

If you do not meet the higher salary threshold and the company is relying on one of these exemptions, you should be entitled to overtime and may have a cause of action for unpaid overtime against your employer. Effective December 1, 2016 companies will no longer be allowed to not pay overtime unless the higher threshold is met.

 

Contact me if you are not being paid the proper overtime. I will discuss your situation with you and make a determination if I believe you are entitled to overtime pay.

Overtime Lawyer – Get Help Now

Overtime LawyerWhen you need an overtime lawyer you should select someone with experienced in the type of case you have.  Some overtime lawyers have more experience than other overtime lawyers in a given type of case.

In my pending and resolved cases section I list some of the types of cases I have handled.  Read those excerpts and see if I have handled a case similar to your case.

For a free consultation, contact me if you have any questions.

 

 

 

Independent Contractors v Employees

INDEPENDENT CONTRACTOR VS. EMPLOYEE: WHY MISCLASSIFICATION MATTERS AND WHAT WE CAN DO TO STOP IT

Introduction

Whether companies treat their workers as employees or independent contractors has profound implications for workers’ pay and benefits, for employers, and for public revenues. High-profile worker lawsuits against Uber and other on-demand giants seeking fair pay or workers’ compensation have recently thrust the business practice of misclassification into the national spotlight again. But for decades, many companies in transportation, janitorial, logistics, home care and domestic work, construction, tech, and other sectors have imposed take-it-or-leave-it non-employee contracts on their workers, putting them outside of the workplace protections and tax requirements that apply only to employees and employers. Under the law, however, these arrangements are permissible only when the worker is running a separate business.

In most instances, an individual performing labor or services for another should be covered as an employee under our employment laws, unless the person operates an independent business, with specialized skill, capital investment, and the ability to engage in arms-length negotiations over the terms of a job. In key industries in our economy, however, independent contractor misclassification is prevalent and has become standard operating practice for companies looking to save on payroll costs, outbid competitors, or avoid workplace regulations.

Here are some high-profile examples:

  • FedEx requires its ground-delivery drivers to sign independent contractor agreements, which have been found to be shams in several large cases around the country;
  • Uber drivers are claiming employee status in many suits and agency claims;
  • Amazon’s “last mile” delivery drivers were treated as independent contractors but claim they should be employees;
  • Honor, a Hollywood-backed home care agency, recently switched its workers’ status from independent contractor to employee;
  • A 2013 study by the Workers Defense Project and the University of Texas found that more than 40 percent of construction workers in Texas are either classified as independent contractors or paid under the table]

Unchecked, independent contractor misclassification can cause long-term damage to the economy and workers, but there are solutions. State reforms already have helped curb abuses, recouping millions of dollars, while the federal government has taken a strong stand against the practice, evident in its multi-agency task force and the U.S. Department of Labor’s July 2015 guidance clarifying that most workers are covered employees.

Wage and Hour Laws

What Are Wage and Hour Laws?

Wage and hour laws govern the basic standards for minimum wages and overtime pay in the workplace. The main wage and hour law is the Fair Labor Standards Act (FLSA). Among other things, the Act covers these main issues:

Employers are required to abide by the rules set out in the Fair Labor Standards Act. Besides following FLSA standards, employers need to keep accurate records about the following:

  • Wages
  • Hours
  • Other details related to their business

Failing to do so can result in legal consequences, and may result in wage and hour lawsuits filed by employees.

What Are Some Common Lawsuits Involving Wage and Hour Claims?

Wage and hour claims are the most common type of employment lawsuits. Disability and discrimination claims are also common in labor disputes. Wage and hour issues typically involve an employer failing to pay employees minimum wage or overtime.

In less common cases, an employee may abuse work procedures and claim FLSA benefits that they aren’t entitled to. In general, most wage and hour law claims involve complaints against employers.

Common issues involved in wage and hour lawsuits include:

  • Exemptions: Certain categories of employees are exempt from overtime pay laws. This means that they are not entitled to overtime pay. Some employers make the mistake of classifying some or all their employees as exempt, when they really aren’t. Others wrongly classify employees to avoid paying them more, which is illegal.
  • Job Title vs. Actual Duties Performed: Most FLSA provisions are based on the actual duties that the employee performs, rather than their job descriptions. This means that the exemptions are based on duties performed and not job titles. A common mistake for employers is to base the employee’s FLSA status on their job title rather than their duties.
  • Working “Off the Clock”: FLSA violations can arise because not all companies operate according to a strict, 40-hour work week. Many businesses and employees are under “alternative weeks” (4 day work weeks or 10 hour days, etc.). Some employers don’t include business meetings as part of the “work day”. Finally, a great number of wage and hour claims involve the withholding of wages. These claims involve an employer wrongfully withholding an employee’s payments. The reason for withholding wages must be illegal, such as discrimination, or in retaliation.

What If I Need to File a Wage and Hour Claim?

If you have a wage and hour dispute, you’ll probably need to file a claim with the Wage-Hour Division of the U.S. Department of Labor first. The Wage-Hour division will conduct an investigation to determine if there are FLSA violations. If a violation is found, they may enforce penalties against the employer. Penalties may demand that employers adjust their labor policies.

If the Department of Labor is unable to provide you with the appropriate remedy, you may also file a private civil lawsuit against your employer. You may be entitled to receive a damages award for losses such as back pay. Employers are prohibited, by law, from firing an employee who makes a report about wage and hour disputes in the workplace.

Remedies in Wage and Hour Claims

What Are Wage and Hour Claims?

Wage and hour claims, or wage/hour disputes, are conflicts that are specific to an employment setting. They involve disputes over how much wages an employee is paid, or how many hours they are working. In many cases, they involve very specific issues such as:

  • Overall pay rates or salary rates
  • Violations of state or federal minimum wage rates
  • Overtime wages
  • Issues regarding the amount of hours the person is required or allowed to work
  • Disputes over employment contract terms

For instance, a common scenario is where an employer fails to pay a worker overtime wages when they are entitled to such pay. These types of disputes often result in some very specific legal remedies.

What Are Some Common Remedies in Wage and Hour Claims?

Most wage and hour claims result in a damages award that is issued from the employer to the worker. These are often sufficient to provide relief for losses caused to the employee. Generally, these damage awards cover the unpaid wages, plus other losses that may be related to the claim (such as lost profits on a deal, etc.).

In addition, other remedies may include:

  • Requirements that the employer change their payment and hour requirements (so that they conform with state/federal laws)
  • Investigations into the company’s overall record-keeping practices
  • Firing of a supervisor or manager
  • Reinstatement of the worker back to their previous position (if they were also terminated in connection with a dispute)

How Are Wage and Hour Disputes Proven?

Wage/hour disputes often require analysis of many different documents and statements. These can include:

  • Pay stubs
  • Work logs (input of clocking in/out, etc.)
  • Tax papers
  • Receipts and other documents

In addition, witness testimony may also be required (for instance, statements from co-workers regarding their own pay situation).

Overtime Pay Disputes

What Are Overtime Pay Disputes?

Overtime pay disputes are a specific type of wage and hour dispute. These are employment law disputes that involve the amount of wages an employee is paid, or the amount of hours they have worked. Wage/hour disputes are now the most common types of employment disputes, even more than discrimination or harassment claims.

Specifically, overtime pay disputes involve employees who work more than a regular work day or work week, which is usually 8 hours per day or 40 hours a week. Most laws require employers to pay their workers time and a half for overtime work.

What Are Some Examples of Overtime Pay Disputes?

Overtime pay disputes can involve a number of issues, such as:

  • The rate at which the worker is paid vs. the rate they are supposed to be paid
  • The number of hours worked
  • Whether or not the worker is entitled to overtime pay
  • Tax reporting and other administrative issues
  • Overtime exemptions that apply to certain employees

Most overtime pay disputes involve instances where the employer owes the worker back wages. This can happen if the employer failed to pay the worker their overtime hours, or if the hours were not billed as overtime. This can be caused by negligence, error, or even intentional conduct, such as harassment-related issues.

How Are Overtime Pay Disputes Resolved?

Resolution for overtime pay disputes may involve:

  • Discussions and clarifications with the company’s dispute resolution department
  • Agency investigations, especially if the dispute involves a federal issue such as discrimination
  • Mediation
  • Negotiations
  • Legal action in court

In some cases, overtime pay disputes can involve a class action lawsuit. This can happen if a large number of employees are all affected by the same pay policies. This may require extensive legal research and representation for the group.

Withholding Overtime Pay

What Are the Requirements for Overtime Pay?

Rules governing overtime pay are mostly covered in the Fair Labor Standards Act (FLSA). According to FLSA, employers must pay their employees overtime wages when they work over 40 hours in one week. Overtime wages can also be specified in an employment contract, so long as they conform to the minimum FLSA standards.

Also, under the act, employers must pay an overtime wage of 1 ½ times the amount of the employee’s hourly wage rate. So, if the employer is paid at a rate of $10/hour, they are entitled to be paid at 1 ½ times that rate. This amounts to $15/hour for every hour after they have completed 40 hours in one week. If, during the following week they work less than 40 hours, then they will not be entitled to overtime pay for that week.

What Are Overtime Exemptions?

The Fair Labor Standards Act contains many exemptions for certain employees who work in specified areas of commerce. This means that employers in these fields are exempt, or not required to pay overtime to their employees. Some commonly exempted jobs include certain retail positions, many jobs related to farming and agriculture, and certain sales positions. Check with an attorney to determine if you are exempt from FLSA overtime requirements.

What Is Considered a Violation of Overtime Wage Requirements?

In order to prove that an employer violated overtime rules, the employer must prove: 1) An employer-employee relationship actually existed; 2) they are not exempt from FLSA; and 3) the employer did in fact violated statutory rules.

Violations of overtime requirements can include:

  • Failure to pay overtime in general
  • Failure to pay the employee at the overtime rate (i.e., charging normal hourly rates for work done overtime)
  • Withholding overtime pay in order to coerce the employee to do something
  • Withholding overtime pay in retaliation against an employee who reported a wrongdoing

Employees can also violate overtime rules. For example, a common occurrence is when an employee falsifies their time sheets in order to collect overtime pay.

What Remedies Are Available for a Violation of Overtime Rules?

As a remedy, employees can usually obtain back pay if they are entitled to overtime pay but did not receive it as a result of an employer violation. Employees usually cannot immediately file a lawsuit against their employer. First, the employee will be required to file their claim with an administrative agency such as the Equal Employment Opportunity Commission (EEOC).

The agency will then launch an investigation into the incident and determine what the appropriate remedy is. In addition to back pay, the employer may also be required to adjust their policies according to overtime standards. Employees can only file a lawsuit if the agency’s remedy has been determined to be unsatisfactory.

Employees usually have a two-year time period (statute of limitations) in which to file their claim. If the employer has willfully withheld overtime pay, the statute of limitations for filing is extended to three years. After the statute of limitations has expired, the employee can no longer file a claim.

Are There Any Defenses to Overtime Violations?

The most commonly used defense is that the employee is exempt from overtime pay requirements under FLSA rules. Even if the employee is expecting overtime pay, they cannot collect overtime wages if they are subject to the FLSA exemption.

Some jurisdictions allow employers to claim a “good faith” defense. This means that in good faith, the employer honestly believed that the employee was only entitled to regular hourly wages. Courts will use a variety of factors to determine whether the employer was acting in good faith. The good faith defense is not available in all situations.

 

The “White Collar” Exemptions

The President finally take steps to update the FLSA’s “White-Collar” exemption regulations.

The federal Fair Labor Standards Act (the “FLSA”) generally requires that employees receive overtime premium pay calculated at 150% of their regular pay rate. The FLSA, however, exempts from this requirement employees who perform “executive,” “administrative,” or “professional” work. These exemptions are known as the “white-collar” exemptions.

The New Deal Congress that enacted the FLSA intended that the white-collar exemptions would be very narrow and would only cover high-level employees who were personally involved in actually running the business. One way of keeping the exemption from covering too many low and mid-level employees was to set a strict salary threshold that must be satisfied in order for an employee to even be considered an overtime exempt executive, administrator or professional. As the federal Department of Labor observed in 1940, the “most effective check on the validity of the claim for exemption is the payment of a salary commensurate with the importance supposedly accorded the duties in question.”

In 1975, federal regulations generally provided that an employee could not be covered by the white-collar exemptions unless his/her salary exceeded $250 per week.  As the Economic Policy Institute recently observed, had this $250 per week requirement merely kept pace with inflation, it would equal $970 per week – or $50,440 per year – in $2012.

Unfortunately, the white-collar’s exemption salary requirement has not kept pace with inflation. Today, the salary threshold stands at a mere $455 per week. That’s just $23,660 per year.

It seems absurd that an individual making only 23,660 per year could be the type of “executive,” “administrative,” or “professional” employee excluded from the Nation’s overtime laws. After all, the median household income in United States currently exceeds $51,000.

Earlier this year, President Obama issued a memorandum instructing the Department of Labor (“DOL”) to update the regulations pertaining to the white-collar exemptions. Why it took the Administration over five years to take the simple step is baffling. Regardless, the DOL now must go through the formal “rule making” process, which will take at least another year. Then, after the new rules are issued, companies surely will file lawsuits asserting that any new regulation exceeds the DOL rulemaking authority. This may cause even more delay.

If you believe that you have been misclassified as a white color worker and should be receiving overtime pay, please contact me to discuss your situation.