San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

 The US Department of Labor has filed suit against Child Protective Services for failure to pay overtime wages.  The state actually enjoys sovereign immunity from such suits.  So, if DOL does not initiate such suits, such a lawsuit might not be possible.  According to the suit, CPS workers have been told to work off the clock.  Yes, that would be a classic violation of the Fair Labor Standards Act.  See San Antonio Express News report.  The suit is the result of a lengthy DOL investigation. 

The suit seeks some $1 million in overtime wages for some 800 current and former CPS workers.  As if the caseworkers did not have enough to deal with already, they must also deal with overtime wage violations.  CPS continues to suffer from high turnover and low morale.  

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A federal judge in Iowa has ordered a company based in Texas to pay $1.76 million to former mentally disabled workers at a turkey plant.  The US Department of Labor was granted a partial summary judgment against Hill Country Farms doing business as Henry's Turkey Service.  Henry's housed the mentally disabled men in a dilapidated bunkhouse - which was eventually closed by the Fire Marshall. 

The judge's decision says the employer failed to pay the men in accordance with the Fair Labor Standards Act.  See San Antonio Express-News report.  The company violated the minimum wage and overtime provisions of the FLSA.  The mentally ill men, in their 50's and 60's lived in the bunkhouse with boarded up windows and space heaters for heat.  Henry's charged for room and board - the amount went up each year, while the wages remained the same.  The employer paid no more than $65 per week for each worker for some 20 years.  The amount was apparently based on the maximum amount allowed under Social Security regulations that would not trigger a decrease in benefits.  Yet, the men worked 40 hours per week and more.  See second San Antonio Express-News report. 

The judge ordered the employer to pay $881,000 in back wages and an equal amount in liquidated damages for a total of $1.76 million. 

in a separate action, the EEOC has also filed suit alleging discrimination and harassment against the 31 men. 

It takes a cold employer to abuse the most vulnerable in our society. 

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Nancy Norman has filed suit against her former employer, Ebbay Halliday Realtors, Inc., in Dallas district court for discrimination based on her disability. She filed suit under the Texas Commission on Human Rights Act., the Texas equivalent of Title VII of the Civil Rights Act.  See Texas Lawyer report.  Ms. Norman was fired after ten years of employment and 37 days after disclosing her diagnosis, inverse psoriasis, a skin disorder.  Ms. Norman's doctor told her to wear shorts to work and change once she arrived at work.  Her disorder involves a painful red rash made worse by friction and perspiration.  Her doctor warned her against overheating. The employee told her office administrator about the diagnosis and what the doctor prescribed.

She arrived to work wearing shorts. The office manager, Don Davis immediately told her she cannot wear shorts to work. During the following week, Mr. Davis allegedly exhibited hostility toward Ms. Norman. He then issued her a disciplinary write-up for dressing improperly for work and general incompetence. When Ms. Norman tried again to explain to him her need to wear shorts to work, he cut her off and said he did not care about her medical issues.  Ms. Norman says she had received letters of commendation in the past. 

Ms. Norman then failed to attend a shower for a co-worker during lunch.  Mr. Davis complained about that omission and sent her home.  He called her at home later that day and fired her. 

It sounds like a good case for the employee. The employer will surely defend on the basis that Ms. Norman was not a productive employee and had other issues. But, if Ms. Norman truly has a write-up for dressing improperly at work after she had been diagnosed, the employer's actions will appear retaliatory.  Mr. Davis will undoubtedly deny his statements. But, the verifiable evidence will be strong enough that many jury members may accept the plaintiff's version of events. This is a case which the employer should settle. 

And, requiring attendance at a function during non-working hours?  A possible violation of the Fair Labor Standards Act?  The employer has some problems in this lawsuit. 

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In a recent decision, the US Supreme Court ruled that the Fair Labor Standards Act does indeed provide protection for employees who complain or ask about wages orally.  The federal courts have disagreed on this issue for decades.  They all agreed that the FLSA protected employees who complained in writing about wages.  But, several courts found that the 1938 statute did not protect employees who complained verbally.   See Supreme Court decision.  The court voted 6-2 in favor of the employee. 

As the Court pointed out, the act was passed at a time when many workers were illiterate.  Just over 20% of manufacturing laborers in 1940 only had five years of schooling.  It was often simply not practicable to write up complaints in a workplace where work sites were dirty and special clothes were necessary.  Kasten v. St. Gobain Performance Plastic Corp., (3/22/2011). 

And, of course, truly, few employees would have the nerve to complain in writing.  But, many employees do indeed ask simple questions about wages and then suffer reprisal.  One of my clients once noted that a big box store failed to pay overtime to some seasonal employees.  My client simply asked one of the managers if that was kosher?  The client really thought he was just trying to help management and the workers.  Big box store never asked him to return - he was a seasonal employee himself.  If this decision had been issued sooner, that client could have filed some legal action about their reprisal against him. 

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It was bound to happen sooner or later.  A lawsuit has been filed over the employer's requirement to check email after hours.  More and more employers are issuing Blackberries and their equivalent to employees with the stated or implicit understanding that the employee check email after hours.  Such a requirement runs right into the Fair Labor Standards Act, which requires that an employee be paid for time actually worked.  

The FLSA has been around since the 1930's.  The federal statute has plenty of precedent.  We know, for example, that if the employer requires attendance at meetings after hours, then the employer must pay for that time.  So, why would "email" time be any different?  

A Chicago police Sergeant has brought a class action lawsuit against his employer claiming that he was required to use his Blackberry on his own time.  Sgt. Jeff Allen is seeking overtime pay, because he was required to use his city-issued Blackberry after hours.  See report.  

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 Periodically, the Department of Labor issues guidance on interpretation of the regulations and statutes regarding the Fair Labor Standards Act.  The FLSA is the statute hat requires overtime pay and payment of minimum wage.  The DOL has issued an opinion recently stating that it now believes mortgage loan officers are not exempt employees and are, therefore, entitled to overtime pay.  According to one commentator, this new interpretation will apply to employees who work primarily in the employer's place of business and to employees who do not engage in cold-calling, contacting potential customers.  If you think you may have employees who fit these criteria, you should seek guidance regarding changes to be made as soon as possible. 

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 Part of the recently passed Patient Protection and Affordable Care Act contains an amendment to the Fair Labor Standards Act.  The amendment requires all employers to provide reasonable breaks and a location for women to express milk for their children.  The act supports women who breastfeed their children.  The location must be in a place other than the bathroom. 

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 Gene Lee writes a good post about whether workers should be paid for checking email after hours.  More and more employees are being required to check their email after work.  Accoding to a 2008 Pew internet survey,  50% of workers said they check their work email on weekends.  20% of workers said they were required to check work email and respond to it after hours.  Half of Blackberry and PDA users said they were required to check and respond to work related email after hours.  As Gene notes in his post, debate swirls around whether employees should be paid for this time.  

In July, 2009, several T-Mobile employees sued for this uncompensated time.  It is hard to understand how the employer would not be liable for this time.  Anything a worker does at the employer's request is compensable time.  The real issue is likely to be how liable the employer will be.  The employer should not be liable for 24/7 minimum wage coverage.  But, if the employer requires a particular duty or task, then that task must be compensated.  That is what the Fair Labor Standards Act is all about.  

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 Many employers seek to reduce cost by hiring independent contractors to perform some work.  The employer does not have to pay benefits to an independent contractor.  But, what is an independent contractor?  The IRS uses one test to determine whether an employee is a true independent contractor and not just an employee under a different name.  Department of Labor uses a different test.  But, a recent decision by the Fifth Circuit Court of Appeals addresses factors found in both tests.  

Cromwell, Et Al v. Driftwood Contractors, Inc. Et Al was decided on Oct. 12.  Cromwell and another man worked for Driftwood performing a great deal of electrical work in the aftermath of Hurricane Katrina.  Cromwell and his co-worker invested $70,000 in providing their own equipment, says Mike Maslanka.  They provided their own insurance and paid their own taxes.  They were so busy that they could not work for anyone else.  That factor made the difference, says Mr. Maslanka.  Because, the Fifth Circuit concluded they were so economically dependent on Driftwood that they were actually employees, and were not independent, at all.  

This was a Fair Labor Standards Act lawsuit.  Cromwell and his co-worker had filed suit for overtime wages.  By claiming overtime wages, Cromwell and his co-worker were claiming they were employees, not independent contractors.  Summary (ie, "quick") judgment had been granted in favor of the employer, Driftwood, at the lower court.  But, the Fifth Circuit reversed that summary judgment, a rare move for the Fifth Circuit.  So, economic dependence can make a difference, even to the Fifth Circuit.  

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 "You get a rest break every four hours," the seasoned warehouseman told me back in the 1970's.  He knew everything.  I just assumed he was right about this, too.  But, since then, I have never seen anything in law or regulation stating that workers were entitled to a 15 minute break every 4 hours.  But, there is a regulation encouraging employers to provide a rest break every so often.  "Encouraging" is not the same as requiring.  Now, I tend to believe the rest break tradition was simply a vestige of the days when collective bargaining agreements were much more common. 

I also heard there was a requirement for a meal break every so many hours.  That is also not necessarily true.  But, if your employer provides a meal break, they must not interrupt you unless they are paying you for that break.  As the regulation says, if the meal break is bona fide, then it cannot be worktime.  These regulations are all enforced under the Fair Labor Standards Act. 

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 State workers have it rough.  Yea, they have more job security than many private employees.  But, if they are not paid in accordance with the Fair Labor Standards Act, they cannot file suit against their employer.   That was the result of the 1999 decision in Alden v. Maine.  They also cannot sue their employer under the Americans with Disabilities Act or the Age Discrimination in Employment Act.  

The Texas equivalent of the ADA and the ADEA provide comparable protections.  But, the state version of the Fair Labor Standards Act has no teeth.  Most states have a law comparable to the FLSA.  A handful of states, including Texas, do not.  So, at least regarding wage violations, state workers have little or no recourse. 

The 1999 Alden decision was a 5-4 decision by the US Supreme Court.  That decision overturned decades of earlier decisions by lower courts.  So, yes, presidential appointments to the Supreme Court do matter.  

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 Rio Grande attorney, Aaron Ramirez, explains nicely the problems with seeking redress for wage violations from the Department of Labor.  As he says, its better to seek relief through a private attorney.

Aaron points out for example that DOL does not normally seek liquidated damages.  Liquidated damages is a phrase referring to monies used to compensate the victim of a wage issue for emotional issues and to help punish the employer.  

In my own experience, DOL does little more than *maybe* issue a finding that the employer has violated the Fair Labor Standards Act (the minimum wage law).  

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