Archive for the ‘Overtime Issues’ Category

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Are Pharmaceutical Sales Reps Entitled to Overtime Pay?

September 12, 2010

The Commonly held belief is that outside sales representatives do not get overtime pay.  This is because the federal overtime law, the Fair Labor Standards Act (FLSA), specifically exempts outside sales reps from being paid overtime pay.  Normally, the FLSA requires an employer to pay its employees one and ½ times their regular rate of pay if that employee works more than 40 hours per week.

In order for an outside sales representative to be exempt from receiving overtime pay, there are several requirements that must be met.  These are:

1. The employee’s primary duty must be making sales (as defined in the FLSA), or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and

2.   The employee must be customarily and regularly engaged away from the employer’s place or places of business.

At first glance, it seems as if a pharmaceutical sales representative would not be entitled to overtime pay.  However, the distinction lies in how the FLSA defines “primary duty” and “making sales”

“Primary duty” means the principal, main, major or most important duty that the employee performs. Determination of an employee’s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee’s job as a whole.

“Making sales” includes any sale, exchange, contract to sell, consignment for sales, shipment for sale, or other disposition.  What is missing from either of these definitions is an exemption for a person that merely urges doctors to prescribe certain drugs, but does not actually sell anything to the doctor.

A recent case out of the 2nd Circuit Court of Appeals held pharmaceutical sales representatives that merely urge doctors to prescribe certain drugs, under strict guidelines from their employer, are entitled to overtime pay.  In In Re Novartis Wage and Hour Litigation, the Court states that a pharmaceutical sales representative that meets with doctors to obtain a doctor’s commitment to prescribe a certain drug does not engage in “sales” as contemplated by the FLSA.

Novartis also tried to argue that their “sales” reps were exempt from overtime pay because of the administrative exemption.  However, the Court stated that the reps did not exercise discretion and independent judgment simply because the reps could answer the doctor’s questions about the medications.  Based upon this holding, it is anticipated that drug companies will make changes to their sales representatives responsibilities so as to avoid having to pay their reps overtime pay, despite the long hours worked by these reps.

For more information about overtime pay for pharmaceutical reps, or other questions relating to whether a certain employee is entitled to overtime pay, contact attorney Joseph M. Maus at The Maus Law Firm, (866) 556-5529 or visit www.mauslawfirm.com

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Tricks That South Florida Employers May Use To Get Out Of Paying Overtime Wages

September 12, 2010

Everyone is trying to stretch their money during these uncertain economic times, including employers. In fact, some employers will go out of their way to try to get around the overtime wage laws so they can avoid having to spend more money on worker salaries. You may have been wrongly denied overtime and might not even be aware of it.

Here are a few tricks that employers may try to use to get around paying South Florida overtime wages:

  • Even if they don’t know the details, every employer has a general idea of state and federal labor laws and they are aware that employees are entitled to overtime. In order to avoid paying overtime, they may not give the worker "employee" status and may instead call workers "independent contractors". Anyone can be called an independent contractor but there is a legal standard that designates an employee from an independent contractor. If the employer controls the time and manner of how your work is performed, supplies you with all the materials needed to do your job, and pays you on an hourly or salary basis, you are most likely an employee, not an independent contractor.
    • Another way to get around the labor law is to call the employee a manager, which means they are exempt from overtime wages. If you have the power to hire and fire workers and more than 50 percent of your work time is devoted to management duties, you may be exempt from receiving overtime wages. However, if your management responsibilities mean you spend a high percentage of your workday engaged in non-management tasks, such as answering phones and filing, and you only are responsible for duties such as cashing out a register at the end of a shift or carrying an over-ride key, you may not actually be a manager and may not be exempt from overtime pay in South Florida.
      • Employees under H-1B status: H-1B is a nonimmigrant classification used by foreign workers who will be employed temporarily in a specialty occupation and it requires a sponsoring U.S. employer. Many companies are increasingly hiring workers from overseas, particularly for the IT field, because the workers will settle for lesser wages. Oftentimes, the foreign worker is either unaware of or afraid to assert their rights, which allows an employer to get around the overtime wage laws.
        • If you must take unpaid breaks or if you find yourself being required to work through lunch, you may be owed overtime. An employer must pay you for breaks of more than 5 minutes and less than 20 minutes or if you are required to complete work-related duties during your lunch break, but must clock out for that lunch break..
          • With all the new communication technology out there, you may be required to check your company Blackberry or PDA, or answer emails or texts after work hours, which may entitle you to overtime pay.
            • If you are required to be ‘on call’ and must report to work on short notice, you may be entitled to overtime pay.
              • For many South Florida employees, the threat of losing their job is enough to make them overlook the overtime wages they should be getting but aren’t. However, you should be aware that the Fair Labor Standards Act (FLSA) prohibits an employer from punishing or firing an employee who has asserted his or her rights to overtime wages.

              Do you think you might have a South Florida overtime claim? Florida overtime attorney Joseph M. Maus can help you determine if your employer may owe you money. Call him at 1-866-556-5529, visit his website at http://www.mauslawfirm.com, or email him today. The Law Office of Joseph M. Maus and Associates has handled some of the largest South Florida overtime claims. Attorneys in their office were recently appointed in Federal Court as lead counsel in an Overtime Class Action against a large Fortune 500 Company. Call their offices today for a free consultation or for more information on South Florida overtime claims.

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              The Top 5 Ways Employers Get Around South Florida Overtime Wages Laws

              June 30, 2010

              Many people work overtime without the proper compensation because employers try to get around the overtime wage laws. In fact, the Department of Labor estimates that approximately 70 percent of employers are not complying with the Fair Labor Standards Act (FLSA). This Act, in effect since 1937, requires non-exempt workers to be paid overtime wages if they work more than a standard 40 hour work week.

              The following are the top 5 ways that employers try to bend the South Florida overtime wage laws:

              1. Misclassifying Employees as Exempt Workers (Job Title and Salary) – Because the FLSA states that exempt employees are are not entitled to receive overtime pay, employers sometimes give their workers titles that imply that they are in different status than they actually are. The FLSA exemption rules can be confusing, but be assured that exemptions have nothing to do with a job title or job description. In addition, employees are often paid a salary instead of a hourly wage so the employer can avoid paying overtime. Being paid a salary, however, may not make you exempt from overtime wage compensation.

              2. Unpaid Compensable Time – Many companies require workers to do "little" things off-the-clock. They often don’t compensate employees for these extras, but the time spent on these tasks can add up. Think about the times you have answered company emails or phone calls while on your lunch break, before you clock in, or after you clock out for the day. In addition, if you are required to put on or take off a uniform or personal protective equipment, come in early or stay late for a change-of-shift-meeting, or set up and clean up your work area, you may be entitled to your regular wages for the extra time you are spending on these tasks.

              3. Comp Time Instead of Overtime Pay – Sometimes employers will give non-exempt workers time off in lieu of overtime pay. This compensatory time is usually referred to as "comp time." An example of this would be when a company offers comp time during a busy period, which the employee can take after the work has slowed down. The employee, however, may be missing out on the 1.5 times pay they should have received in wages instead of comp time. Comp time is legal, but should be given in the same increment as overtime wages would have been – at time-and-a-half per hour.

              4. False Reporting – Many companies will not permit overtime or pay for it without advance authorization, so they refuse to count and pay for overtime hours worked. The FLSA, however, requires non-exempt employees to be paid for any overtime they put in.

              5. Improperly Calculated Overtime Pay – Often, employers pay on a bi-weekly basis. For example, an employee may work 50 hours in one of those weeks and 30 during the other week. The employer will add the two weeks together and average the employee’s hours at 40 per week. Under the FLSA, however, the employee in this scenario would be entitled to overtime compensation for the 10 extra hours worked during the 50 hour week. In fact, the FLSA says that all work over 40 hours in a workweek must be paid at a rate of one and one-half times the employee’s regular hourly rate. This applies to non-exempt employees whether they get paid weekly, bi-weekly, semi-monthly or on a monthly basis.

              Don’t be afraid to stand up for your rights. The FLSA prohibits an employer from punishing or firing an employee who has asserted his or her rights to overtime wages.

              Do you think you may have a South Florida overtime claim? Florida overtime attorney Joseph M. Maus can help you determine if your employer may owe you money. Call him at 1-866-556-5529, visit his website at http://www.mauslawfirm.com, or email him today. The Law Office of Joseph M. Maus and Associates has handled some of the largest South Florida overtime claims. Attorneys in their office were recently appointed in Federal Court as lead counsel in an Overtime Class Action against a large Fortune 500 Company. Call their offices today for a free consultation or for more information on South Florida overtime claims.

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              Are You Working Overtime in South Florida And Not Being Paid For It?

              May 15, 2010

              Because of the current recession, many employees have been laid off. Their co-workers, while happy to still have a job, have been forced to pick up the slack left after the former employee’s departure. As a result, millions of American workers are now doing “double-duty” at work and putting in lots of overtime. To add insult to injury, the Department of Labor estimates that approximately 70 percent of employers are not complying with the Fair Labor Standards Act (FLSA) which requires non-exempt workers to be paid overtime wages if they work more than a standard 40 hour work week.

              Since 1937, the Fair Labor Standards Act (FLSA) has set the labor standards and guidelines for employers. The FLSA established 40 hours per week as the legal work week and requires overtime pay to be due to an employee for hours worked beyond the standard 40-hour work week. The FLSA also set the rate for overtime wages at 1.5 times the regular hourly wage for each hour worked beyond the 40 hour week.

              Often, employers try to get around paying this overtime. They misclassify workers as exempt by giving them important-sounding job titles or by paying them salaries instead of hourly wages. The labors laws have gray areas, though, and there are certain salaried employees who are entitled to overtime pay and certain job titles that are non-exempt even though it sounds like the employee is in an executive or administrative position. A job title alone does not exempt a worker from overtime pay.

              People in certain occupations are also routinely denied overtime pay even though they are entitled to it. As an example, nurses are generally thought of as exempt employees because they are considered “learned professionals.” But, licensed practical nurses and licensed vocational nurses who are paid hourly may be entitled to overtime pay. Additional violations can come up regarding breaks and meal times for nurses. Some employers and staffing agencies automatically deduct these breaks and meal times from a nurse’s weekly hours even if he or she is too busy to take a break, but many courts have ruled that these policies are also in violation of the FLSA.

              To qualify for the learned professional employee exemption, all of the following tests must be met:

              • The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;

              • The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;

              • The advanced knowledge must be in a field of science or learning; and

              • The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

              Registered nurses who are paid on an hourly basis should receive overtime pay. However, registered nurses who are registered by the appropriate State examining board generally meet the duties requirements for the learned professional exemption, and if paid on a salary basis of at least $455 per week, may be classified as exempt.

              Are you owed overtime pay? You are qualified to collect overtime in South Florida if you work more than forty hours in a week, even if:

              • You are paid a salary
              • You are a tipped employee
              • Your job title is manager, but you do very little managerial wo
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              Florida Overtime Laws – Working an Overnight Shift

              April 29, 2010

              Many people work hours that are outside of the traditional Monday-to-Friday "9:00 to 5:00" job. People who often do this include health care workers, factory shift workers, and those in the retail or transportation fields as well employees in various other fields. The state of Florida follows the guidelines of the Fair Labor and Standards Act (FLSA). While employers are not required to pay their employees additional wages for overnight work, workers may find that wages can be higher on overnight shifts due to shift differentials. Regardless of the compensation arrangements made between an employee and employer for overnight shifts, non-exempt workers who work more than forty hours in a work week must be paid overtime in Florida.

              The Fair Labor Standards Act (FLSA) was passed in 1937 and remains one of the primary laws dealing with overtime in the U. S. The FLSA was adopted in order to set wage standards and guidelines for employers. The state of Florida requires employers to follow these regulations when it comes to paying overtime for their employees.

              Overnight shift workers are defined (in general) as those employees that work between 11:00 p.m. and 6:00 a.m. Employees who work three or more hours during this time frame are considered to be overnight workers. These types of workers are increasing due to the prevalence of all-night convenience stores and retail centers, supermarkets, etc. Overnight shift workers often prompt the monitoring and/or enforcement of the FLSA wage laws which mandate that any nonexempt employee be paid one-and-one-half time their regular pay rate for hours worked beyond a forty hours work week. This is due to the common misconception that people who work overnight shifts are always entitled to overtime pay.

              Consult a Florida overtime attorney if any of the following apply to you and you are a non-exempt employee who works the overnight shift:

              1. Combining work weeks – if you work more than 40 hours in a week, you should be paid for overtime in the week that you worked it, even if your employer combines two or more weeks on a paycheck. For example, some employees get paid bi-weekly or semi-monthly which means an employer may refuse to pay overtime for the first week at, for example, 45 hours when the second week is less than 40 hours because they’ll combine the two to get a total of 80 hours or less.
              2. Meetings or training – if you are required to attend a meeting or do some training outside of work hours, you may be entitled to Florida overtime wages.
              3. Unpaid breaks or working through lunch – you may be owed overtime if your employer does not pay you for breaks of more than 5 minutes and less than 20 minutes or if you are required to clock out for lunch, but must complete work-related duties during your lunch break.
              4. Pre-approval of overtime – do you need to get approval before working overtime? If your employer will not pay for unapproved overtime even if you work the extra hours, you may be able to get Florida overtime wages.
              5. On call – if you are required to be ‘on call’ and must report to work on short notice, you may be entitled to overtime pay. Also, if you are required to check your company Blackberry or PDA, or answer emails or texts after work hours you may be entitled to overtime pay..

              If you think you may be owed Florida overtime pay, don’t wait to consult with an attorney! The FLSA only permits an employee to recover up to two years of unpaid back wages (possibly three years if the employer’s violation is found to be wilfull). You could be losing valuable time with every day that passes.

              If you have a question or need information on South Florida overtime wage claims, contact Florida overtime attorney Joseph M. Maus at 1-866-556-5529 or email him today for a free consultation.. The Law Office of Joseph M. Maus and Associates has handled some of the largest Florida overtime wage claims. Attorneys in their offices were recently appointed in Federal Court as lead counsel in an Overtime Class Action against a large Fortune 500 Company.

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              Corinthian Colleges and Everest University Sued For Overtime Pay Violations; Suit filed by The Maus Law Firm in Pompano Beach, FL

              February 26, 2010

              POMPANO, Fla.–(EON: Enhanced Online News)–A campus admissions representative has sued Everest University, a subsidiary of Corinthian Colleges, for alleged overtime pay violations at Everest’s Pompano Beach, FL campus. The suit, filed in the United States District Court for the Southern District of Florida, seeks to recover overtime pay for existing and former campus admissions representatives at all campuses for Everest University, and Florida Metropolitan University, as it was previously known, dating back to July 2007.

              The suit is unique in that it is filed on behalf of a current employee at Everest that is still working at the Pompano Beach campus. According to the Plaintiff’s attorney, Joseph Maus, it is rare that an overtime suit is filed by an existing employee for fear of being retaliated against by the employer. Attorney Maus filed the lawsuit with his partner, Charles Bechert, both in Pompano Beach. They say the law that governs overtime pay, the Fair Labor Standards Act (FLSA), prohibits an employer from taking any type of retaliatory action against an employee for pursuing their rights to overtime pay. If a willful violation of the FLSA is proven, the employees can recover the full amount of their past due overtime pay, plus an equal amount in the form of liquidated damages.

              The lawsuit seeks a court order to allow other current and former admissions representatives from the Pompano Beach campus, as well as all other Everest and Corinthian campuses, to join as plaintiffs in the action to recover past due overtime pay. A Motion to Permit Court Supervised Notice advising other admissions representatives of their right to join the lawsuit was filed by Plaintiff on December 17, 2009. If the Motion is granted by the Court, a notice would be mailed to all current and former campus admissions representatives advising them of their right to join the lawsuit and recover any overtime pay they may be due.

              This is not the first time Corinthian Colleges has been sued for its failure to pay overtime wages to admissions representatives. Corinthian was sued in 2008 in Illinois by an admissions representative that worked more than 40 hours per week, yet was not paid his overtime pay. It was also argued to the Court that other admissions representatives were also shorted on their overtime pay, and the Court allowed other admissions representatives to join that suit.

              Corinthian Colleges is a publicly traded corporation, and one of the largest for-profit post secondary education providers in the United States. Corinthian Colleges has approximately 100 campuses throughout the United States and Canada.

              A trial date has been set for the two week trial period beginning June 28, 2010.

              For more information, contact attorney Joseph M. Maus at (866) 556-5529, www.mauslawfirm.com.

              Contacts

              The Maus Law Firm
              Joseph M. Maus, 954-784 6310
              Fax, 954-941-8363
              jmaus@mauslawfirm.com

              Permalink: http://eon.businesswire.com/news/eon/20100223007216/en/Corinthian-college-overtime-pay/Fair-Labor-Standards-Act/Overtime-wage-claim

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              Are You Owed An Overtime Wage Under Florida Law?

              December 18, 2009

              One of the primary laws dealing with overtime in the U. S. is the Fair Labor Standards Act (FLSA) which was passed in 1937. The United States adopted the Act in order to set certain wage standards and guidelines for employers. The FLSA requires that employees who work overtime be paid for the additional time they have worked beyond the standard 40 hour work week. In addition to the FLSA, the state of Florida also has a separate set of regulations that employers must follow when it comes to paying overtime for their employees.

              • In Florida, overtime wage payments are structured to go along with the U.S. guidelines. Often, though, an employer may ask an employee to do something that seems innocent, such as requesting them to check company email or answer an office-related text message over their lunch break, or maybe staying a few minutes late so they can wrap up a meeting. They may require employees to set up or put away equipment before or after normal working hours or may not pay for time spent on legally mandated breaks. If this has happened to you and you are a non-exempt employee, you may be entitled to an overtime wage claim in Florida. All of this unpaid time can add up, too: if you only work an extra 20-30 minutes a day doing these "extras", that means you are working unpaid for at least two hours a week. Figured at $12.00 an hour over a two year period, your employer could owe you $2,500.00!
              • Most "salaried" employees are entitled to an overtime wage payment! In many cases, being paid a salary just means the employee gets paid the same amount of money each week. Your status as an exempt or non-exempt employee is what determines your eligibility for overtime pay.
              • Some employees work over a two-week pay period that adds up to an average of forty hours a week (an example would be when you work 35 hours in one week and 45 hours in the second week). It is not allowable for an employer to average your work hours between two weeks to determine overtime pay. In cases like this, you may be entitled to overtime pay for the second week if you are a non-exempt employee.
              • Employers can not give you comp time off instead of paying you overtime wages. This is a violation of the FLSA.
              • The FLSA and the Florida wage laws prohibit employers from punishing or firing an employee who has asserted his or her rights to overtime wages.
              • The FLSA allows employees two years to file an overtime lawsuit or three years if the employer’s violation was willful. Employees and former employees should file a claim with a Florida overtime wage attorney as soon as possible after a suspected violation so the attorney can put the strongest possible case together.

              Even though the FLSA is supposed to provide regulations that provide that all employees are treated fairly, some employers routinely fail to pay their employees overtime pay, even if they do not intentionally try to get out of doing it. The overtime wage laws are confusing and complex – it is easy for employers to either misinterpret the FSLA or try to get around the law to avoid paying their employees a Florida overtime wage.

              Florida overtime attorney Joseph M. Maus can help if you have a question or need information on Florida overtime wage claims. Contact him at 1-866-556-5529 or email him today for a free consultation. The Law Office of Joseph M. Maus and Associates has handled some of the largest Florida overtime wage claims. Attorneys in their offices were recently appointed in Federal Court as lead counsel in an Overtime Class Action against a large Fortune 500 Company.

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