Tampa Attorney for Workplace Investigations
Hard working people deserve to be treated fairly. Our tenacious attorneys at Wenzel Fenton Cabassa, P.A., actively investigate common violations in the industry and the most current issues and cases in employment law.
Exemption and Assistant Managers/Shift Supervisors
It’s a common misconception that a salaried assistant manager or shift supervisor is ineligible for overtime. If your primary duty is not management and you are not directly managing two or more people, you may be eligible for overtime pay.
Employers sometimes miscategorize employees out of a lack of knowledge and sometimes as a willful breaking of employment law to save money on paying overtime. No matter what the reason, it is illegal and we can help. If you have held an assistant manager or supervisor position where your primary duty was in something other than the management of people, you may be eligible for overtime. Contact us today. The initial consultation is free.
Automatic Time Clock System Errors
Automatic time clocks make it easy to track employees’ time but the automation also makes it easy to short employees on time owed. If an employee clocks in early, stays late, or takes a shorter lunch than what is dictated by labor law, the automatic time clock does not record these overages. Some clocks are also set to round to the nearest quarter hour. This could result in time not paid. You may be owed overtime or additional compensation.
If your employer uses an automatic time clock system and you think it doesn’t reflect the actual hours you have worked, you may be eligible to make a claim for damages. Contact us today.
Call center employers cannot request employees to come in early, stay late, or receive additional training without pay. Many call centers require employees to be at their station 5-10 minutes prior to their shift to ensure calls begin, or are received, at the very beginning of a shift. The employer must pay you for that time.
If you work at a call center and have been asked to come in early or stay late you must be compensated for your time. If not, you may have a claim for damages. Contact us today. The initial consultation is free.
Compensatory time, otherwise known as “comp time,” is often given in lieu of paying overtime. This is fine for employees who are not eligible for overtime (exempt), as is the case with some managers, or in other permitted situations, including government employees.
While some states allow for comp time to be given in lieu of overtime, generally non-exempt employees must receive compensation of time and a half for the overtime they worked in the week that they worked it (in the corresponding salary check).
If you are a non-exempt employee whose employer has offered comp time in lieu of overtime payment, you may be eligible to collect the overtime owed. Contact us today. The initial consultation is free.
Many employers assume IT professionals are not eligible for overtime. This is not always true. The law is very specific about people working in this industry. They often must work nontraditional hours, be on-call, and respond to emergencies.
In order to be exempt from the Fair Labor Standards Act (FLSA) you must:
- be paid at least $27.63 per hour or a salary of $455 a week
- must work in software design, systems analysis, or other similar areas
If you were paid under that salary minimum and worked in an area outside of software design or systems analysis, you may be eligible for overtime and back pay. Contact us today. The initial consultation is free.
Donning and Doffing Claims Under the Fair Labor Standards Act
If an employee is required to take certain, unique precautions, such as “donning” a protective article of clothing like a metal apron, before reporting for his/her job, the time spent doing that must be paid. This means employers may have to pay employees prior to their official shift start if unique preparation is required before doing their jobs. This also covers waiting time to don items. If an employee has to put on special protective gloves and wait for three minutes before entering the factory floor, that time may be eligible for overtime.
There are exceptions to this rule. Items not unique to a position, including hard hats and hair nets, are generally not eligible for compensation.
Food processing and packing facilities are notorious violators of this form of nonpayment of overtime.
If you work in an industry where specific, unique precautions must be taken, and you have not received compensation for that time, you may be eligible for overtime. Contact us today. The initial consultation is free.
Entertainers as Independent Contractors
This is a common area of unpaid wages in Florida. Many adult clubs categorize their adult entertainers as “independent contractors”. Some employers charge fines and fees to work, requiring the dancers to rent the dance floor and survive on tips alone. The courts that have heard cases on this have decided that exotic dancers should be classified as employees, not independent contractors.
As employees they are eligible for minimum wage and should not have to pay to work. Learn more about independent contractors and employment law here.
If you are an exotic dancer who has not been paid by your employer, or has had to pay to work, Contact us today. The initial consultation is free.
Commission or Bonuses in Overtime Calculations
A common area for employers short changing employees on overtime involves how overtime is calculated. Many employers derive the overtime calculation of 1.5 times the employee’s pay based on his/her flat rate pay. This is an error. Overtime should be 1.5 times the employee’s regular or total pay, which if the employee is eligible for commission, includes that as well. Certain types of bonuses, those that are “non-discretionary,” must also be factored in according to the U.S. Department of Labor.
If your employer is using only your base pay in the calculation of your overtime pay, it is in violation of federal law and you may be eligible to claim damages. Contact us today. The initial consultation is free.
Changes Affecting Home Health Care Workers
In the past health care workers were not eligible for overtime even though many worked over and above a 40-hour work week. Starting on January 15, 2015, revisions to the Fair Labor Standards Act now allow for some health care workers to receive overtime.
Providers of essential home care assistance should be aware of this change to ensure their employer is adhering to federal law. Overtime is 1.5 times the regular employee pay. Employers who pay their employees at straight time for overtime are also breaking federal law.
We are currently investigating companies who employ home health care workers. You may now eligible for overtime, and it should be paid at time and a half. If you are working for a company that has not followed changes to federal law Contact us today. The initial consultation is free.
Improper Background Checks
There’s a lot of confusion behind what an employer can, and cannot, do when it comes to background checks. Most job candidates believe employers are well within their rights to refuse to employ you if you do not pass a background check. That is not entirely true. The Fair Credit Reporting Act places strict mandates on just what employers can do when running background checks. They must:
- Get permission from the employee or job candidate. They cannot run it without your knowledge. You must give written authorization and the authorization must be on a separate form from the job application. The law is very specific and the authorization must be quite clear in what it’s asking of you/what you are authorizing.
- Before the employer can take adverse action against the employee for something found on the background check, the employer must provide the employee or job candidate a copy of that report. This allows the employee/job candidate to clear up any misinformation that may be on the report.
Employers who violate these rules face monetary penalty as well as actual and punitive damages. Most employees/candidates are so embarrassed when a background check reveals a problem that they seldom think about their employment rights.
If you have been passed over for a promotion or job, or have been terminated because of something found on a background check that was not shared with you, you may be eligible for compensation. Contact us today. The initial consultation is free.
The classification of independent contractor is attractive to employers because it means not having to pay overtime, minimum wage, contribute to retirement funds, FICA taxes, unemployment, or provide benefits. Such a classification is a significant cost-savings for most companies. However, safeguards exist to ensure employers do not replace employees with less costly independent contractors.
Courts consider the following when analyzing the:
- individual’s investment in tools and items necessary for work
- specialized skill needed to perform the work
- length of the working relationship
- need of the company for this position
- degree of control the employer has over the contractor
Consult with one of our lawyers to see if you’ve been wrongly categorized as an independent contractor. Contact the team who knows. The initial consultation is free.
Overtime and Inside Salespersons
This is one of the largest areas of misclassification we see. Many employers consider all salespeople as exempt from the Fair Labor Standards Act. This is a mistake. For an inside salesperson to be exempt, they must work in retail and derive at least 50% of their pay from commission, and they must earn at least 1.5 times the federal minimum wage (not the state if it is different).
If you are an inside salesperson who works over 40 hours, you are not receiving overtime, and your salary is not comprised of at least 50% commission, you may have a claim. Contact us today to find out. The initial consultation is free.
Internships are Not Free Labor
Recently several big companies in the magazine industry were sued by their former interns who worked for free in return for experience. The magazine settled.
Courts look at the following qualifications in order to decide whether an internship can be (legally) unpaid:
- The internship is more of a training/educational opportunity.
- It is for the benefit of the intern.
- Hiring of the intern does not take the place of hiring a regular employee.
- There is no benefit to the employer having an intern or program. The workflow may even be impeded by the need to explain and train the intern.
- No job is guaranteed to the intern at the end of the internship.
- The employer has made it clear that no job, compensation, or stipend is available to the intern at the end of the internship.
If you interned for a company and performed a job for them, you might be eligible for compensation. Know that the law does not allow the company to “ban” you from an industry or otherwise adversely affect your career due to filing a claim so Contact us today. The initial consultation is free.
Mortgage Industry Employees
The mortgage industry is another industry that often misclassifies its employees as exempt from overtime. Many loan officers, processors, and underwriters are not given their due overtime compensation.
Since a loan officer’s primary job duty is selling loans from inside an office, they should be classified as non-exempt and be translated as eligible for overtime pay, but many are not. They are considered salaried and misclassified as exempt. If you fit two definitions, you may be eligible for compensation.
Like loan officers, mortgage underwriters are often incorrectly misclassified. Mortgage underwriters are not exempt from overtime pay because of the “administrative exemption”. If you are an underwriter who is not being paid overtime for hours worked above forty per week, you may have an unpaid overtime claim.
Some employees in this industry believe they are not eligible for overtime because they signed an agreement with their employer, agreeing to a set salary and commission structure. You cannot sign away your right to overtime pay. Even if you have been reclassified to reflect your eligibility, you may still be owed back compensation.
Many companies tell employees they will not pay overtime unless it is approved by management. This violates the FLSA. If the time is worked, the employee is eligible for overtime even if approval was never sought.
Working Through Breaks
Because of the nature of their job, many mortgage people work long hours and meet when clients need them to; sometimes that’s over a lunch hour. If an employee works through a break, that person must be compensated.
If you feel you are owed compensation, talk with the group who can get it for you. Contact us today and we’ll review the details of your complaint and let you know if there’s the potential that your employer is in violation of federal law. The initial consultation is free.
Security Checks and Pay
Some jobs require that employees go through security checkpoints before or after performing their job duties. If the employer requires such checks of its employees, the company must compensate its employees for that time.
Many companies get around this by requiring employees to clock out first, thus the time spent at work does not reflect the actual time going through the security check.
If you are required to perform a security or safety check as part of your job, and you are non-exempt, you must be compensated for that time. If you’re not being compensated, it’s time to contact us. The initial consultation is free.
Insurance companies often employ special investigators to investigate suspicious claims. These investigators are often paid a salary and treated like an exempt employee, but they shouldn’t be. Their long work weeks should be compensated as a non-exempt employee, and they are eligible for overtime.
If you’ve been investigating fraudulent claims for an insurance company and get paid a flat salary, let us take a look at your employer and do a little investigating of our own. Contact us today. The initial consultation is free.
An employer cannot conspire with its competition in an industry to purposely keep wages low. This is referred to as “wage fixing” and it is illegal.
If you believe wages have been unfairly capped by your employer and other employers in the area, Contact us today. The initial consultation is free.
Fraud and Abuse
The firm is actively engaged in several healthcare fraud and abuse matters. A common theme in it all of these cases is that a healthcare provider such as a hospital, a physician or a similar healthcare entity engaged in a pattern of charging the United States government for more care than was actually given or provided that care in an unsafe way.
CONTACT AN EXPERIENCED EMPLOYMENT LAW ATTORNEY TODAY
Contact us at Wenzel Fenton Cabassa, P.A. to discuss your employment law situation. Our law firm also handles cases involving employment discrimination and harassment, whistleblowers, civil rights, the Family Medical Leave Act (FMLA), the Fair Labor Standards Act, partnership disputes and contract disputes, and professional licensing.