Florida and New York Wage and Hour Attorney

The Fair Labor Standards Act (also called the “FLSA”) is one of the most important federal wage and hour laws that requires employers to pay minimum wage, pay overtime pay at the rate one-half, sets recordkeeping requirements, prohibits retaliation, and prohibits additional unfair employment practices. The FLSA protects both the private sector and government employees. Individual states and cities, further provide additional layers of protection that protect employees form wage theft and unpaid wages.

Common FLSA requirements:

• • Minimum Wage: The FLSA sets a federal minimum wage for eligible workers based on their actual hours worked, which includes time working off the clock, working on lunch breaks, and other work that often is not counted by employers. Many states and cities have their own laws that set an even higher minimum wage laws than under federal law.

• • Overtime Pay: “Non-exempt employees” must receive overtime pay at a rate of time and on-half for hours worked beyond 40 hours in a workweek. Overtime pay should be paid to the employee within their normal paycheck and count all of their time working, even off the clock time.

• • Tipped Employees: If employers pay their employees with tips, or have a tip pool, there are strict legal requirements to ensure employees keep a fair amount of tips earned and earn enough tips each week so that their pay is above minimum wage.

• • Retaliation: The FLSA protects employees from retaliation, such as unlawful termination or decreased hours, if they complain about FLSA violations in the workplace.

• • Recordkeeping: The FLSA requires recordkeeping, businesses that do not keep track may be penalized.

• • Eligibility: The FLSA and Department of Labor (“DOL”) have specific definitions of who receives protection, such as overtime. Your employer does not choose who gets overtime pay—federal law dictates which workers are “exempt employees” and which workers are “non-exempt employees” from FLSA overtime regulations.

• • Prohibition on Unlawful Deductions: The FLSA only allows certain deductions and deductions cannot reduce employee’s earnings below minimum wage.

• • Child labor: The FLSA restricts the employment of children.

Frequently employers cut corners to save money by abusing abuse wage and hour laws. Wage and hour violations commonly occur across industries like restaurants, bars, retail, salons, construction sites, and places where employees are paid with tips or by the hour. Additionally, it can also affect individuals in other areas, banking, IT, healthcare, and other types of employees.

While each state has its own layers of protection that protect employees form wage theft and unpaid wages, many laws are modeled after the federal, FLSA. The FLSA sets rules for paying employees by the hour, overtime requirements, what workplace breaks require time to be compensated, rules related to tips, and other regulations that employers must follow.

O’Connell Law prides itself on taking care of employees against bad bosses. We will advise you and always put your interests first. Your wage theft lawyer will also investigate, gather evidence, speak to any witnesses, and serve as a go-between with the employer to negotiate a fair wage and hour settlement, or if needed pursue your claims in court.

Call us to schedule a free initial legal consultation about your wage and hour case. Call our office at (305) 209-9246 or email us at Office@KellyOconnellLaw.com.

What is the Statute of Limitations of an FLSA Unpaid Overtime Claim?

The time to bring a claim for unpaid overtime or wages is normally only 2 years under the federal FLSA, and 6 years under the New York Labor Law. For example, this means, that once you file your claim in court, you can only seek damages for the most recent 2 years of unpaid overtime under the FLSA. The FLSA includes an exception to the statute of limitations for willful misconduct by an employer. However, there may be an exception, your lawyer can prove that your employer “willfully” violated the FLSA’s overtime law, then the statute of limitations can be extend an additional year to cover 3 years of unpaid overtime.

Wage and hour claims are very complex due to the many exceptions and calculations under the law. Our legal team of wage theft lawyers can evaluate your rights and review your evidence to see if your employer is stealing your hard earned money.

What damages can I receive for my wage theft claim?

Through a minimum wage or unpaid overtime claim under the FLSA, employees have a right to seek full back pay, attorneys’ fees and costs, and possibly liquidated damages (double back pay as a penalty) in addition to the back pay. There could also be additional damages and fines related to the claims under local laws, such as for New York employees under the Wage Theft Prevention Act and New York's Labor Laws.

What liquidated damages can I receive for my wage theft claim?

Liquidated damages are essentially a form of penalty damages. The FLSA allows workers who were denied overtime to seek double back pay. This means you can claim the full overtime pay that you should have received. For example, imagine that you were denied $25,000 in overtime, you may seek the full $25,000 of back pay, plus an additional $25,000 as liquidated damages, totaling $50,000.

As great as liquidated damages can be, such additional damages are not guaranteed as under federal law (29 US Code § 260), there is a “good faith” exception to liquidated damages under the FLSA for unpaid overtime. Under this analysis, if the company can prove that it was acting in “good faith,” then the company may not be required to pay double damages. To refute such a position by the employer, the employee would offer to the court, that the employer had knowledge, willfulness, bad faith, or negligence, that entitled it to recover double back pay for unpaid wages.

Am I entitled to overtime even if I have a Salary?

You may be entitled to over time if your employer pays you a salary, but it depends on the facts and status under the FLSA, such as are you an exempt or a non-exempt employees under certain legal tests.

While exempt employees are paid a salary instead of an hourly wage, being paid by salary alone is not enough to disqualify you from receiving overtime. Employees are only exempted under the FLSA if they are paid a salary of at least $684 per week AND they meet certain other legal criteria for the qualifying exemption. Each employee’s job duties should be reviewed on a case-by-case basis by our lawyers to see if an exemption applies. There are also rulings made by the courts or the Department of Lablr that could affect your particular situation.

Am I entitled to overtime or minimum wage even I’m paid as a 1099 independent contractor?

You may be entitled to overtime or minimum wage even if your employer pays you like an independent contract or pays you on a 1099 IRS form, but it depends on your unique facts. Too often companies misclassify their employees to avoid government regulations, however, just because company calls you an independent contractor does not always mean it is true. Under the FLSA “economic realities” standard, attorneys evaluate the worker’s level of economic dependence on the employer. This is reviewed on a case-by-case basis by our lawyers to see if in reality, you are an employee, not an independent contractor.

Common questions in the FLSA economic realities analysis include, but are not limited to the following:

• What are the necessary skills for the occupation?
• What is the manner in which the worker is paid—by the job or by time?
• Is the work performed by the worker is a part of the employer’s regular business?
• Does the worker have a specific business or occupation?
• What is the extent of control exercised by the business on the employee regarding the details of the work performed?
• Is the work performed is generally performed under an employer’s direction?
• Is the work performed is done by a person considered a specialist, without supervision?
• Who supplies the tools and instruments necessary to perform the job, the worker or the employer?
• What amount of time the worker is employed?
• What do the parties believe is their working relationship?

The above are some examples, however, each industry and case is unique. The overall employment relationship must be carefully examined to determine whether a worker is being misclassified.

What should you do if you are fired for reporting labor law violations?

It is illegal to fire an employee for reporting labor law violations, under state and federal laws. If possible, be sure to collect and document your complaints, gather your pay statements, preserve your worked hours independently, and have a list of possible witnesses. Every piece of evidence in your favor may help your case. Also, quickly speak with an wage theft attorney about your wage and hour claims as there may be deadlines that effect the damages available to you. Possibly, the sooner you file your claims, the more money will be available to recover in court due to statutes of limitation.

An employment law attorney can assist in holding your employer accountable, explain your rights, and follow the appropriate procedures, such as filing an FLSA action in court so that you can be compensated and have justice. Every case is unique, so be sure to consult with an attorney regarding the details of your situation. No matter how big the company is, even large, powerful, bullying employers should be held accountable for labor law violations that affect your future and your family.

What are common wage and hour violations for tipped employees?

Often tipped employees, have an hourly pay that falls below minimum wage, as there is an expectation that the worker will earn tips from customers that bring up their wages to be at or above minimum wage. This arrangement has detailed complicated requirements that must be followed by an employer, which are not often followed. This analysis becomes more complicated if the workplace as a tip pooling and tip sharing.

Under the FLSA, a tipped employee is an worker employed in a role where they customarily and regularly receive more than $30 a month in tips. An employer that claims a tip credit must ensure that the employee receives enough tips from customers, and direct (or cash) wages per workweek to equal at least the minimum wage and overtime compensation required under the FLSA.

The FLSA sets the rules regarding tip pooling and tip sharing in the workplace. Although it is a complex analysis, can be complex and fact intensive, important concepts are:

1. Tips in General: the general principle is that tips belong to the employees who receive them, although there may be exceptions.
2. Tip Pooling: Tip pooling involves combining tips from multiple employees and redistributing them among a group of workers, typically those who provide direct service to customers. While tip pooling arrangements are allowed under the FLSA, the tip pools must comply with certain requirements to ensure that employees receive their fair share of tips.
3. Employer's Role: Companies are generally prohibited from keeping any portion of employees' tips for themselves or using tips to cover business expenses, except for permitted tip pooling arrangements.
4. Percentage Limits: While the FLSA does not specify a specific percentage limit for tip pooling, courts have generally held that the arrangement must be reasonable and customary in the industry. Taking 40% of server tips to share with support staff may be considered excessive, depending on the circumstances.
5. Calculation of Tips: When calculating the amount of tips that can be pooled, only tips that are considered "customarily and regularly" received by the employees can be included. This typically includes tips left by customers specifically for the service staff.
6. Notice Requirements: Companies must provide notice to employees about any tip pooling arrangement, including who is eligible to participate and how tips will be distributed. Failure to provide adequate notice may violate the FLSA.
7. Record Requirements: Employer who take a tip credit, must keep records of how much each employee earned in tips on a weekly/monthly basis to ensure FLSA compliance and confirm that the employee is earning sufficient tips to earn at least minimum wage.

Our wage theft lawyers work together as a team to recover our clients’ stolen wages and seek additional compensation for the burden of involving attorneys and bringing the action in court. Together we help employees cheated out of the money. If you feel like your New York employer or Florida employer is not following the wage and hour laws or that you have been discriminated against, please call or text us today at (305) 209-9246 or contact our wage and hour attorneys online. We offer free consultations.

Written by Kelly O’Connell, the founding partner of O’Connell Law, PLLC. Ms. O’Connell focuses her practice on employment law and discrimination litigation in New York and Florida. With over 12 years of legal experience, she has helped her clients recover millions.