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Wage & Hour

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Most employers treat their employees fairly and with respect. However, there are some employers who believe that their position gives them the right to do whatever they please, including denying wages and not paying workers for overtime hours. An employee may not know what to do or who to turn to for help. When this happens, our attorneys are ready to step in and fight for employees.

At Morgan & Morgan, our wage and hour lawyers accept cases regarding a wide range of employment and wage-related issues for workers throughout the nation. In the last five years, our firm has handled more than 6,000 wage and hour lawsuits and recovered tens of millions on behalf of our clients. We help workers who were wrongly denied overtime, minimum wages, forced to work off-the-clock, and other wage related claims to recover compensation for lost wages.

Our attorneys are dedicated to fighting for those who weren’t paid properly and are not afraid to take their cases to court to get the money they deserve.

Recent Verdict

2022
Case Name: Stevens v. PepsiCo Inc. et al
Attorneys: Ryan Morgan, Andrew Frisch, Angeli Murthy

12750000

There are a number of ways your client’s employer can cheat your client out of the minimum wage and, in some cases, they may not even realize that their employer is doing something wrong.

The Fair Labor Standards Act requires employers to provide most of their employees with overtime pay for hours worked over 40 in a work week and to provide minimum wages to employees for all hours worked. Overtime is generally calculated at one-and-a-half times the employee’s hourly rate.

Our wage and hour lawyers can analyze your client’s employer’s pay practices to determine if their company is properly paid all wages owed.

Below are examples of common violations our attorneys see in their wage and hour practice.

Most Common Forms of Wage Theft

Not Paying Overtime to Hourly Workers

Hourly employees are entitled to earn overtime if they work more than 40 hours per week. There are certain exemptions set forth by the Fair Labor Standards Act, but if your client was hourly paid, they should almost always be paid for all time worked beyond 40 hours. Neglecting or refusing to pay overtime is common among service industry workers such as fast food employees, home health care workers and other positions that are paid per hour.

Employee Misclassification - Independent Contractors

The number of individuals working as independent contractors has increased exponentially since the financial crisis of 2008. Many people are classified as independent contractors, which exempts them from certain rights and protections, including overtime pay. However, the law doesn’t just follow labels put on a working relationship, but looks at the actual facts of the working relationship. If the worker is being controlled by the employer and in essence being treated as an employee, then that person could be misclassified and owed overtime compensation for overtime hours worked.

Misclassifying Employees - Exempt vs. Non-Exempt

For purposes of paying overtime wages, employees are classified into two categories: exempt and non-exempt. Companies are required to pay non-exempt employees overtime wages, while exempt employees are not entitled to overtime compensation. Only employees whose job duties satisfy one of the exemptions to federal overtime requirements are not entitled to overtime.

Employers sometimes misclassify workers as exempt to wrongfully deny overtime pay. For example, if your client’s employer has classified your client as a managerial employee who is not entitled to overtime, but their job duties are primarily non-managerial in nature, your client may be entitled to overtime. Importantly, just because an employee has a “salary,” it does not mean by itself he or she is exempt from federal overtime requirements. Many employers misclassify workers as exempt from overtime requirements in an illegal attempt to cut costs.

Paying Less Than Minimum Wage

The federal government, along with state and local governments set the minimum rate of pay for hourly employees. Every hourly employee is entitled to earn the highest rate of pay that is mandated by the government. Some employers, however, do not adhere to these guidelines and pay workers less than minimum wage. This is certainly common in some restaurant settings. Before taking an hourly job, employees should be aware of what the minimum wage is where they live and refuse to work for anything less.

Taking Tips from Restaurant Workers

Some restaurants will improperly make servers, bartenders or other tipped employees share tips with managers or the “house.” This is often illegal and can destroy any tip pool arrangement and cause significant wages to be owed to the employees, and usually on a classwide basis.

Working Off the Clock

Hourly employees’ workdays begins when they clock in and when they clock out. That includes time spent taking required steps to prepare for a job and time spent cleaning up after the day’s work is done. Employees should not be required to perform certain activities “off the clock”. They should not be asked to work through lunch and other mandated break times, nor should they be asked to work before or after set hours without receiving additional pay. This can often happen with required travel time that an employer refuses to pay for, or showing up early or late to set up and clean vehicles, materials and equipment at the end of the day.

Paying Fluctuating Workweek

Some salaried employees receive “half-time pay” for overtime hours, technically called the fluctuating workweek overtime methodology. An employer can use the fluctuating workweek method only if certain criteria are met. To use the fluctuating workweek method of calculating overtime, employees must be paid a fixed weekly salary, even if they work less than 40 hours in a given week. If your client’s employer claims to be paying overtime under the fluctuating workweek method, but is reducing their pay for weeks where they work less than 40 hours, your client’s employer may be violating federal wage and hour laws and significant overtime compensation may be owed.

Manipulating Calculation of Hours Worked

If an employee who is paid an hourly basis works hours that vary from week to week, the employer cannot typically average the hours over several weeks to illegally deny overtime. For example, if a worker puts in 50 hours in one week and then 30 hours the following week, the employer may not average the hours over two weeks to deny overtime for the week the employee worked 50 hours. Each work week stands alone. The same is also true when employers try to pay an employee from two separate accounts to avoid the appearance of overtime worked.

Manipulating Calculation of Overtime Rate

The law requires all forms of compensation that is non-discretionary to be included into the overtime rate of pay. Some employers will pay employees non-discretionary bonuses or other amounts, but then not include those amounts when calculating overtime, instead only using the employee’s base hourly rate for example. Such a practice is often systemic and classwide and lead to many violations.

Enforcing Company Policies that Illegally Reduce Hours Worked

Some employers establish policies specifically crafted to prohibit employees from working more than 40 hours on the clock. Examples of these policies include:

A straightforward “no overtime” policy
Unpaid lunch breaks;
“Off the clock” policies
Failure to pay for training or at-home work
Unpaid bag checks
Failure to pay workers for time spent putting on or taking off safety gear

Regardless of whether your client’s company has such policies, if they work more than 40 hours in a given week and the employer has knowledge that such hours are being worked, they may be entitled to overtime compensation. Our experienced overtime attorneys can review your client’s company’s policies and procedures to determine if they satisfy federal wage and hour law.

Industries with Frequent Wage and Hour Violations

Our attorneys handle cases on behalf of workers in all fields. However, we’ve found that the following employees are more susceptible to wage and hour violations:

IT workers
Service technicians
Installers
Sales representatives
Nurses and healthcare workers
Tipped employees
Oil and gas field workers
Call center workers;
Personal bankers and mortgage brokers
Financial workers paid only a “salary”
Delivery drivers
Construction workers
Restaurant employees
Retail employees.

Our attorneys at Morgan & Morgan have the necessary experience handling many civil litigation cases involving wage theft, and they are eager to help your client. Morgan & Morgan will work on your client’s behalf to obtain full compensation for lost wages and other damages caused by negligent employers.

Retaliation from an Employer for Filing a Claim

It is illegal for an employer to retaliate against an employee in any way for asserting their right to overtime or minimum wage pay under the Fair Labor Standards Act. An employer may not terminate or demote an employee, or reduce their pay or change their job duties simply because they have taken legal action to obtain the compensation to which they are entitled.

If your client’s employer retaliates against them, our attorneys may be able to file a separate lawsuit seeking compensation for their injuries, as well as an injunction ending the retaliatory action. An injunction is a court order requiring a person or company to do (or cease doing) a specific action. For example, if your client’s employer fires them for filing an overtime lawsuit, our attorneys can ask a court to issue an injunction requiring your client’s employer to reinstate them to their prior position.

Recent Verdict

Mississippi - 2022
Case Name: Joseph Papin v. University of Mississippi Medical Center
Attorney: Ryan Morgan, Greg Schmitz, Jolie Pavlos, John Waits

6560651

Employment Discrimination

Our Employee Rights Group also advocates for clients in cases involving a basket of federal, state, and local employment laws related to discrimination, wrongful termination, harassment, whistleblowing, and other causes of action. These include Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Family Medical Leave Act, the Americans with Disabilities Act and a host of other laws. We’ve recovered millions for our clients, providing relief for those in the face of difficult circumstances.

Disability Discrimination

In addition to Title VII above, the American with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973 prohibits employment discrimination of qualified individuals due to a disability. This applies to both private and government positions. Acts of discrimination based on disability may include:

Denying an aid, benefit or service that is provided to other employees.
Refusing to engage in the interactive process to discuss reasonable accommodations for an employee with a disability.
Providing different aids, benefits or services unless necessary.
Denying the opportunity to participate as a member for a planning or advisory board
Imposing eligibility criteria that screen out those with disabilities, unless vital to the execution of the position.
Administering programs, services, and activities that do not meet the needs of qualified individuals with disabilities.

Recently, our attorneys have seen an uptick of disability discrimination cases involving employees who were fired after they got cancer or another illness. Such a case would fall within these laws’ protections and can be especially good cases.

Sexual Harassment and Discrimination

Under the Equal Pay Act of 1963, employers are prohibited from discriminating on the basis of an employee’s gender or sex in the payment of wages. It is illegal for employees of different sexes, with the same skills and experience, to be denied equal compensation for performing substantially equal work in the same establishment. However, sex discrimination is not limited to equal pay. Some other examples of gender or sex discrimination include:

Hiring (for example, an applicant, with excellent credentials and qualifications is denied employment on the basis of sex)
Firing (for example, a female employee is let go due to “cutbacks,” while a male employee with less seniority remains employed)
Promotion (for example, female employee who has been with a company for a long time is passed over for a promotion for a male with less experience)
Job Classification (for example, female employee denied right to a title that would typically be given to a man with the same responsibilities; compensation is often adjusted by job classification)
Benefits (for example, requiring female employees to use sick and vacation days for maternity leave, while offering long-term disability plans for male employees who sustain an injury)
Training Opportunities (for example, sending employees of only one sex for special training sessions that are developed to enhance job performance)

Workplace Discrimination

Employment and labor laws prohibit discriminatory or unfair treatment of an applicant or employee based on race, color, religion, sex, national origin, disability, age, or parental status. Federal law forbids “discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.”

Employment policies or practices applicable to all employees may be illegal if they have “a negative impact on the employment of people of a particular class and are not job-related and necessary to the operation of the business.”

Race, Color or National Origin Discrimination

Two major types of discrimination concerning race, color and national origin are addressed and prohibited under Title VII of the Civil Rights Act of 1964. An employer may be in violation of the law(s) if they:

Fail or refuse to hire or discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, or origin.
Limit, segregate, or classify employees (or applicants for employment) in any way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, or origin. Employers may also not publish notices or advertisements for employment indicating a preference or prohibition of a certain race or ethnicity.

Age Discrimination
The Age Discrimination in Employment Act of 1967 protects employees over the age of 40 from discrimination in the workplace. Under the Act, employers are prohibited from:
Refusing to hire or discharging an employee due to their age
Offering different compensation, terms or conditions of employment due to someone's age
Limiting, segregating or classifying an employee in a way that would adversely affect their employment opportunities due to their age
Employers and employment agencies may not fail or refuse to refer an individual for employment on the basis of age.

Religious Discrimination

Title VII of the Civil Rights Act of 1964 prohibits discrimination in hiring, firing, and other terms of employment based on a person’s religious affiliation or beliefs. Religion is broadly defined to include “moral or ethical beliefs about right are wrong that are sincerely held with the strength of traditional religious views.” The Act requires employers to accommodate the religious practices of an employee unless doing so would create an undue hardship for the company. The Act is intended to protect employees from intimidation, abusive ridicule, insults, or slurs and ensure a safe and non-hostile work environment.

The Act prohibits harassment or other discrimination based on:

Affiliation (affiliating with a particular religious group)
Physical or Cultural Traits (e.g., accent, language, or dress related to the religion)
Perception (the mere belief an employee or potential employee is a member of a particular religious group)
Association (a relationship or connection with a person or organization of a particular religion)

Employer Retaliation

To protect employees who want to file a lawsuit or complaint against their employer for the issues described above, state and federal labor laws prohibit employers from engaging in retaliatory behavior. If an employee files a lawsuit or complaint for racial discrimination in the workplace, employers are prohibited, by law, from terminating, demoting, harassing, refusing promotions, altering benefits, forcing an unpaid leave of absence, or changing job assignments in retaliation.

Employees who have filed a lawsuit or complaint concerning racial discrimination in the workplace and have experienced retaliation may be entitled to additional damages.

Title VII Damages

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate against a worker for any reason. Under Title VII, victims of discrimination may be entitled to:

Job reinstatement and promotion
Wage recovery and other job-related losses
Financial damages
Injunctive relief (a company is forced to amend its policies for the purpose of stopping discrimination)
Payment of lawyer fees

Before a lawsuit may be filed by the employee, a formal complaint must be registered with the U.S. Equal Employment Opportunity Commission (EEOC). The organization determines whether there can be an amicable solution between the employer and employee. If the case cannot be resolved, it may either launch a civil lawsuit on the employee’s behalf or give that power to the employee himself with a “right to sue” letter.

Note that charges must be filed within 300 days of the alleged discriminatory act so it is important to reach out to one of our employment discrimination attorneys as soon as possible.

Attorney review by:

Ryan Morgan

Ryan Morgan serves as co-chair of Morgan & Morgan’s Employee Rights Group, which handles employment claims throughout the United States. His team handles claims on behalf of employees against employers, including Wage and Hour violations, discrimination claims, Family Medical Leave Act claims, ADA claims, retaliation claims and other employment claims. These claims range from single plaintiff cases to class and collective action cases involving thousands of workers.