 Many Salaried Case Managers, Case Workers, and Social Workers are Entitled to Overtime Pay
September 14th, 2009 I recently re-read a terrific DOL Wage and Hour Division Opinion Letter explaining that salaried case managers are not covered by the FLSA’s administratrive exemption to the overtime pay if their activities ”are more related to provifing the Company’s ongoing, day-to-day case management services for its customers, which involve duties such as assessing costs of care, preparing a plan of care, and identifying and services to meet the customers’ needs.” See Opinion Letter FLSA 2007-7 (Feb 8, 2007). This is true regardless of whether the case manager has a bachelor’s degree or exercises significant discretion in recommending the type of care and services to be provided to the customer/client. This opinion letter serves as an important reminder that case managers, case workers, and social workers frequently are misclassified as exempt from the FLSA’s overtime pay mandate. Indeed, in the last year, WLF has successfully recovered overtime wages for case managers, caseworkers, and social workers throughout Southeastern Pennsylvania, including Bucks County, Montgomery County, and Philadelphia County. Tags: administrative exemption, Bucks County, case managers, case workers, caseworkers, Montgomery County, overtime, Philadelphia County, social workers, southeastern Pennsylvania ---------------------------------------------------------------------------------------- Don’t Forget the Bump Up of the Federal Minimum Wage September 14th, 2009 An Allentown, Pennsylvania overtime attorney recent reminded me that the federal minimum wage increased from $6.55 to $7.25 effective July 24, 2009. So don’t forget to check that your low-wage clients are not being cheated.  Tags: Allentown overtime attorney; Allentown overtime lawyer; ---------------------------------------------------------------------------------------- Another FLSA/PMWA Rule 23 Settlement Demonstrates Yet Again that the “Inherrent Incompatibility” Doctrine is a Fair Weather Defense of Convenience September 13th, 2009 Once again, a Pennsylvania district court has approved, under Federal Rule 23, the settlement of an overtime class/collective action lawsuit alleging violations of both the Fair Labor Standards Act and the Pennsylvania Minimum Wage Act. This time, in In re Montgomery Scott Financial Consultant Litigation, 2009 U.S. Dist. LEXIS 60790 (E.D. Pa. July 9, 2009), the district court approved the Rule 23 opt-out settlement of overtime claims brought by Pennsylvania securities brokers who alleged that they had been misclassified as exempt from the overtime pay provisions of the FLSA and the PMWA. (This case is similar to litigation brought by WLF on behalf of Pennsylvania staff accountants who seek overtime benefits under the PMWA). But wait a minute; I thought PMWA class actions were “inherrently incompatible” with FLSA collective actions under a long line of EDPA cases.  Actually, Pennsylvania district court judges and defense lawyers are more than willing to turn a blind eye to the so-called the “inherrent incompatibility” doctrine when applying it would stand in the way of a settlement.  This is not such a bad thing, since the so-called “inherrent incompatibility” doctrine has been almost uniformly rejected by district judges outside of Pennsylvania. Tags: Overtime; Pennsylvania security brokers; Pennsylvania s ---------------------------------------------------------------------------------------- The FLSA’s Attorney’s Fees Provision Is an “Integral Part” of the Statutory Scheme September 4th, 2009 I recently handled an overtime lawsuit in Northeastern Pennsylvania in which the defense attorney seemed to view the recovery of attorney’s fees under FLSA Section 16(b) as a privilege rather than a right. And this lawyer is not alone. We get the same reaction from overtime lawyers and attorneys in Philadelphia and New Jersey.  These defense attorneys are simply wrong, and they fail to understant that the FLSA’s fee-recovery provision is absolutely essential to the statute’s enforcement scheme. “A successful FLSA claim carries with it the recovery of attorney’s fees.” Gumecinda v. Ruiz, 808 F.2d 427, 429 (5th Cir. 1987) (citing 29 U.S.C. sec. 216(b)); see also Hilton v. Executive Self Storage Assocs., Inc., 2009 U.S. Dist. LEXIS 51417, *27 (W.D. Tex. June 18, 2009) (“Fee awards are mandatory for prevailing plaintiffs in FLSA cases.”); Pratter v. Commerce Equities Mgmt., Co., 2008 U.S. Dist. LEXIS 98795,*6 (S.D. Tex. Dec. 8, 2008) (same). The Congressional purpose behind this provision “is to insure effective access to the judicial process by providing attorney fees for prevailing plaintiffs with wage and hour grievances.” Fegley v. Higgins, 19 F.3d 1126, 1143 (6th Cir. 1994) (internal quotations omitted).  As federal courts repeatedly recognize, the FLSA’s fee recovery provision is crucial to Congress’ intent that workers be able to vindicate their FLSA rights through private litigation. See, e.g., Fegley, 19 F.3d at 1134-35 (FLSA fee award “‘encourages the vindication of congressionally identified policies and rights’”); United Slate, Tile and Composition Roofers v. G&M Roofing and Sheet Metal Co., Inc., 732 F.2d 495, 502 (6th Cir. 1984) (purpose of FLSA fee award “is to insure effective access to the judicial process”); Maddrix v. Dize, 153 F.2d 274, 275-76 (4th Cir. 1946) (“Obviously Congress intended that the wronged employee should receive his full wages plus the penalty without incurring any expense for legal fees or costs.”); Shannon v. Saab Training USA, LLC, 2009 U.S. Dist. LEXIS 52677, *8 (M.D. Fla. June 23, 2009) (“To encourage private enforcement of statutory rights under the FLSA, Congress created a fee-shifting provision”). In Shelton v. Ervin, 830 F.2d 182 (11th Cir. 1987), the Eleventh Circuit Court of Appeals explained that the FLSA’s fee recovery provision is not collateral to the merits of an FLSA lawsuit but, rather, is an “integral part of the merits” of the lawsuit. The Court held: “[FLSA] Section 216 provides for an award of attorney’s fees, as opposed to granting the court discretion in awarding such fees, to the prevailing plaintiff in FLSA cases. In consideration of the language of section 216(b) and its underlying purpose, we hold that attorney fees are an integral part of the merits of FLSA cases and part of the relief sought therein. Thus, a final determination as to the award of attorney fees is required as part of the final appealable judgment.” Id. at 184; accord Ellison v. LeGrande, 2009 U.S. Dist. LEXIS 14127, *6 n. 3 (M.D. Fla. Feb 24, 2009). Tags: attorney's fees, FLSA, New Jersey overtime attorneys, New Jersey overtime lawyers, Northeastern Pennsylvania overtime attorneys, Northeastern Pennsylvania overtime lawsuit, Northeastern Pennsylvania overtime lawyers, Philadelphia overtime attorneys, Philadelphia overtime lawyers ---------------------------------------------------------------------------------------- District Court Conditionally Certifies New Jersey Overtime Lawsuit Against Liberty Travel, Inc. August 26th, 2009 Judge William J. Martini of the United States District Court for the District of New Jersey issued an opinion on July 31, 2009 conditionally certifying the FLSA claims of Liberty travel, Inc. travel agents who seek full overtime wages. The decision can be found on LEXIS at Bredbenner v. Liberty Travel, Inc., 2009 U.S. Dist. LEXIS 67122 (D.N.J. July 31, 2009). Therein, the district court rejected Liberty Travel’s claim that any analysis of its use of the Fluctuating Workweek Method (“FWW”) method of overtime calculation involved too many “individualized” issues to justify conditional certification. Not surprisingly, Liberty Travel’s “individualized issue” argument emphasized the FWW’s “clear mutual understanding” requirement. The Judge refused to take the bait, reasoning that Liberty’s “clear mutual understanding” argument involved merits issues not properly before the court at the conditional certification stage. Rather, according to the Judge, what mattered at the conditional certification stage was the fact that Liberty Travel FWW scheme applied to all the travel agents. This decision comes as no surprise to us at The Winebrake Law Firm. Several years ago, our overtime attorneys obtained both conditional and second-stage certification in a FWW case on behalf of Ohio and Pennsylvania retail employees seeking full overtime pay from Lowe’s Home Centers, Inc.  The certification decisions can be found at: Evans v. Lowe’s Home Centers, Inc., 2006 U.S. Dist. LEXIS 32104 (M.D. Pa. May 18, 2006); Evans v. Lowe’s Home Centers, Inc., 2004 U.D. Dist. LEXIS 32104 (M.D. Pa. July 17, 2004); and Smith v. Lowe’s Companies, Inc., 2005 U.S. dist. LEXIS 9763 (S.D. Ohio May 11, 2005). Tags: Conditional Certification, fluctuating workweek method, retail employees, travel agents ---------------------------------------------------------------------------------------- Fifth Circuit Class Action Summary August 17th, 2009 Turner v. Larry Talbert, 2009 U.S. Dist. LEXIS 50162 (M.D. Tenn. June 15, 2009) – Plaintiffs were participants in a defined contribution 401(k) savings plan under ERISA offered through their employer who alleged that the trustee and fiduciary of the plan either stopped transmitting the employees’ contributions to the plan or failed to insure that the contributions were actually made. Plaintiffs alleged that the administrator of the plan breached its fiduciary duty and made a unilateral decision to freeze the plan’s assets. Plaintiffs moved to certify a class of employees who were supposed to have contributions made to the plan. The Court denied class certification, holding that common issues of fact and law did not predominate Read the rest of this entry » ---------------------------------------------------------------------------------------- Pennsylvania Minimum Wage Act Provides Pennsylvania Workers with the Right to Overtime Pay for Work Performed Outside of the United States August 8th, 2009 On July 7, 2009, a federal court in Pittsburgh, Pennsylvania decided Truman v. DeWolfe, Boberg & Associates, Inc., 2009 U.S. Dist. LEXIS 57301 (W.D. Pa. July 7, 2009), wherein it held that the Pennsylvania overtime law, the Pennsylvania Minimum Wage Act (“PMWA”), gives Pennsylvania-based employees the right to overtime pay for work performed outside of the United States. The judge flatly rejected the argument that the PMWA should be read in conjunction with the Fair Labor Standards Act (“FLSA”), which explicitly prohibits overtime pay for work performed outside of the United States. As explained by the Court: “If the Pennsylvania legislature had wanted to exempt foreign work from the PMWA it could have expressly included that exemption within the PMWA.”  Id. at *8. The Truman case, which was filed by Pittsburgh overtime attorneys, exemplifies how Pennsylvania overtime law often provides more protection than its federal counterpart, the FLSA. I have a feeling Pennsylvania overtime attorneys will be citing the Truman case for years to come. Tags: Pennsylvania Overtime Law; Pittsburgh Overtime Attorney ---------------------------------------------------------------------------------------- NELA’s Excellent July 20, 2009 Letter Regarding the Fluctuating Workweek “Fallback” August 7th, 2009 In this blog, we’ve previously written about the injustice and illogic of allowing companies who misclassify their employees as exempt from overtime to use the fluctuating workweek method of overtime compensation in calculating the amount of unpaid overtime owed to the misclassificed worker. Our firm’s lawyers have litigated this issue on behalf overtime clients throughout Pennsylvania. On June 20, 2009, NELA as well as some other organizations issued an excellent letter addressing this issue to DOL’s Wage and Hour Division. Check out the letter if your clients ever are faced with this issue. You can find the letter by going to NELA’s website:  http://www.nela.org/temp/ts_F4DE9732-BDB9-50CE-F223D3A652D12DB7F4DE9741-BDB9-50CE-FEAE2EC221771B68/NELANELPAFLCIOLetterFWWOpinionLetter.pdf. ---------------------------------------------------------------------------------------- Immigration Status of Wage and Hour Plaintiffs Frequently Held to be Not Discoverable June 12th, 2009  Often, employers attempt to intimidate current and former employees asserting their rights under state and federal wage and hour law by attempting make issue of the employee’s immigration status. However, Courts have consistantly found one’s immigration status to be irrelevant and issued protective orders precluding discovery of one’s immigration status.  The definition of “employee” under the Fair Labor Standards Act (“FLSA”) includes, with a few exceptions , “any individual employed by an employer.” See 29 U.S.C. §203(e)(1) (emphasis supplied). Thus, courts have consistently held that the protections of the FLSA apply to all individuals who fulfill the definition of “employee” regardless of their immigration status. See, e.g., In re Reyes, 814 F.2d 168, 170 (5th Cir. 1987), cert. denied, 487 U.S. 1235 (1988) (“It is well established that the protections of the Fair Labor Standards Act are applicable to citizens and aliens alike and whether the alien is documented or undocumented is irrelevant.  An employee is ‘any individual employed by an employer.’”); Montoya v. S.C.C.P. Painting Contrs., Inc., 530 F. Supp. 2d 746, 750 (D. Md. 2008) (“the protections of the Fair Labor Standards Act are available to citizens and aliens alike, regardless of documented or undocumented status.”); Flores v. Albertsons, Inc., 2002 U.S. Dist. LEXIS 6171, *17 (C.D. Cal. Apr. 9, 2002) (“Federal courts are clear that the protections of the FLSA are available to citizens and undocumented workers alike.”). Read the rest of this entry » ---------------------------------------------------------------------------------------- A Very Helpful “Donning and Doffing” Opinion May 25th, 2009 I recently reread Chief Judge Mark E. Fuller’s terrific opinion in Burks v. Equity Group-Eufaula Division, 571 F. Supp. 2d 1235 (M.D. Ala.). This decision is a bonanza for poultry workers and should greatly assist workers’ rights lawyers as we continue the fight for fair wages in the poultry industry. Here is a brief summary (in order of appearance) of the various holdings in Burks: (1) the exemptions under FLSA Section 3(o) and the Portal-to-Portal Act do not apply to work done during the continuous workday; (2) FLSA Section 3(o) does not apply to the washing of work items; (3) hand cleaning is “integral and indispensible” to poultry processing and, thus, triggers the compensable workday; (4) the uncompensated work typically at issue in poultry “donning and doffing” cases is not de minimis; (5) neither FLSA Section 3(o) nor the Portal-to-Portal Act appplies to work performed during meal breaks; (6) work performed during any portion of an unpaid meal break potentially can expose the employer to liability for the entire meal break; and (7) the scheduling of two unpaid meal breaks during a single shift may violate the FLSA and render one of the breaks compensable.        Tags: compensable workday, continuous workday, de minimis, donning and doffing, FLSA, Mark Fuller, meal breaks, Portal-to-Portal, poultry workers, Section 3(o) ---------------------------------------------------------------------------------------- |
Location
Winebrake & Santillo, LLC
Twining Office Center Suite 211 715 Twining Road Dresher, Pennsylvania 19025 Phone: 215.884.2491 Fax: 215.884.2492 View Map ____________________________
Contact Us
|
