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wage theft victim
01 Jun, 2023
The Fair Labor Standards Act (FLSA) is a federal law that ensures workers are paid a fair wage for their labor. Unfortunately, wage theft has become a pervasive issue across the country, including in Florida. Wage theft can take many forms, from employers failing to pay minimum wage or overtime to forcing employees to work off the clock. These actions not only harm workers, but they also have far-reaching consequences on the overall workforce and economy. In this post, we'll explore the ripple effects of wage theft in Florida and how it's affecting jobs.New Paragraph
Yellow folder with Severance Package written in red on it
28 Jul, 2022
Employers offer severance agreements to employees for many reasons. In some cases, employees negotiate severance terms as part of their employment agreement. Some employment agreements require the employer to pay specified compensation to the employee if the employee is fired without cause. Key employees often negotiate severance agreements to assure that they will have funds available if they lose their jobs because their employer goes out of business or is sold to a company that wants to replace the company’s executives. In other cases, employers offer severance agreements to employees to induce them to resign. Employers might offer severance packages when they want to downsize, to eliminate employees with high salaries, or to resolve personality conflicts by ridding themselves of employees they view as troublesome. Severance agreements can give employees an incentive to retire or to find work elsewhere while helping employers eliminate employees without actually firing them. Finally, employers that plan to fire an employee might offer a severance agreement to reduce the risk of litigation. Avoiding litigation is a key reason that motivates employers to enter into post-employment severance agreements, whether the employee is leaving voluntarily or being fired. Benefits to Employees of Severance Agreements Severance agreements typically promise that an employee will receive extra compensation after employment ends. The compensation might consist of a lump sum payment or a continuing payment of salary for a specified length of time. Additional compensation may include a contribution to a retirement fund, continuing health insurance at the company’s expense, and other benefits for a fixed period of time. The agreement might describe a formula for computing compensation. The formula is usually tied to the length of the employee’s employment. For example, an employee might receive one week of compensation at the employee’s most recent salary for each year of employment that the employee completed. Apart from health insurance benefits, most severance compensation is taxable income. Agreements typically require the employer to withhold payroll taxes on compensation. When agreements provide that the employee will be paid on a 1099 basis, they also require the employee to indemnify the employer if the employer is held responsible for unpaid payroll taxes. A severance agreement might sound like a good deal. And in some cases, being paid without working for the payment might be a good deal. But every severance agreement comes with a price. Employees should understand that they give up valuable rights when an employer wants to give them severance pay in exchange for ending their employment. Release of Liability Employers do not offer severance pay as a gift. They invariably obtain a release of liability in exchange for the severance benefit. By signing the agreement, the employee agrees not to sue the employer for any claim that the employee could have asserted. Employers often worry that firing an employee might violate (or be perceived as violating) employment laws that prohibit discrimination on the basis of race, national origin, gender and gender identity, disability status, religion, age, or membership in other protected classes. Employers might also worry that they will be sued for a violation of whistleblower statutes, for failing to pay earned bonuses or commissions, or for other injuries to an employee. A severance agreement that describes the separation from employment as voluntary gives the employer some protection from those claims, but the strongest protection is a release of liability. The release is generally written in the broadest possible language so that the employee releases all possible claims, including claims that the employee has not yet discovered. The law imposes some limitations on releases, but those limitations are few: Employers cannot obtain a valid release of claims for minimum wage or overtime violations because federal law prohibits including those claims in a general release. Releases of age discrimination claims by employees over the age of 40 are only valid if the agreement gives the employee 21 days to think about the agreement before signing it and 7 days to revoke the agreement after signing it. To be valid, the release must notify the employee of his or her right to obtain legal advice before signing the agreement. Depending on state law, a general release might be insufficient to resolve a workers’ compensation claim that is not specifically referenced in the agreement or approved by a workers’ compensation judge. Releases generally apply only to claims based on acts that have already occurred. They do not apply to harms that an employer causes after the agreement is signed. Some releases might also be invalid because they were obtained by coercion or duress, or because they are so unfair as to be unconscionable. Since it is rare for a court to set aside a release on those grounds, employees should seek legal advice before signing the agreement. Signing it and hoping to challenge it later is not a smart strategy. Confidentiality and Non-Disparagement Agreements Severance agreements almost always include a confidentiality clause. As a condition of receiving severance pay, the employee cannot tell anyone how much severance pay he or she received. In most cases, employees cannot even tell anyone (other than their lawyers and tax advisers) that the agreement exists. Most confidentiality agreements also prohibit employees from disclosing certain information they learned during their employment, including trade secrets and other information that the employer defines as confidential. Price lists, customer lists, suppliers, the company’s financial condition, and similar information is usually defined as confidential. Non-disparagement agreements prevent the employee from making negative remarks about the employer. If an employee complains to other employees that he or she was treated unfairly by the employer, the employer may be entitled to take back the severance pay and to pursue damages. Typical violations of non-disparagement clauses occur when an employee speaks to the media or posts statements on social media that criticize the former employer. Non-Compete and Non-Solicitation Agreements Many states, including Florida, permit employers and employees to enter into non-compete agreements. The agreement provides that the employee will not accept employment with a competing business for a specified length of time within a specified trade or geographic area. When an employer wants to subject an employee to a non-compete agreement, it usually does so when employment begins or when the employee has been promoted to a position that might give the employee experience that would benefit a competitor. The non-compete clause in a severance agreement is often a restatement of an agreement that the employee already made. Employees should nevertheless take care to understand whether the noncompete clause imposes new or broader restrictions than the agreement that the employee previously made. Non-compete agreements are usually combined with non-solicitation agreements. Those agreements restrict the former employee’s ability to solicit the company’s customers or to ask its current employees to join the former employee in a new or different business. Employer’s Remedies Most agreements require employees to repay the severance benefit if they breach the agreement. Employees might also be required to pay the employer’s attorneys’ fees if they are found liable for a breach. An employee might therefore be at risk of returning severance pay and of paying a large attorneys’ fee if the employee violates the terms of the agreement. Some severance agreements specify the place where any lawsuit concerning a breach of the agreement must be heard. They might also specify the state law that should govern the lawsuit. For example, if a New York corporation enters into a severance agreement with an employee of its Florida office, the agreement might specify that any lawsuit relating to the agreement must be filed in New York and will be governed by New York law. Employers often designate an inconvenient forum to create a disadvantage for former employees. The Importance of Legal Advice In many cases, a severance agreement will benefit an employee. Having extra money at the end of employment can be useful as the employee searches for a new job. In other cases, the amount of money the employee receives does not justify the loss of rights that the agreement demands. Employees who are presented with a severance agreement should seek immediate legal advice. Employees who are over the age of 40 must be given time to consult with a lawyer if the agreement includes a general release. When a younger employee is told “sign it now or we’ll fire you without paying severance,” the employee might suspect that the employer has done something unlawful and desperately wants to obtain a release of liability. That situation is uncommon, but when it occurs, the employee has a difficult choice. An employee who anticipates that a termination is coming might want to talk to a lawyer about the appropriate response to a severance agreement. When an employee has the opportunity to seek legal advice, it can be beneficial to do so. Severance agreements are binding contracts. Their terms may be difficult to understand. Before an employee agrees to release potential claims against an employer, the employee should know what he or she is giving up. Employers too often take advantage of employees who do not understand what they are losing by signing the agreement. A lawyer will ask questions to determine whether claims against the employer might exist, whether they have merit, and whether the severance benefit is sufficient to make the release of those claims worthwhile. A lawyer who identifies potential claims may be able to negotiate a better payment in exchange for the release of those claims. Without obtaining legal advice, employees may never realize that it would be better for them to pursue a wrongful discharge lawsuit or other claims against the employer, or to negotiate a larger severance payment.
exchanging-money-in-front-of-law-books
12 Jul, 2022
The Fair Labor Standards Act (FLSA) requires employers to pay minimum wage to nearly all employees and overtime to nonexempt employees. When employers fail to pay the wages required by law, employees can sue for unpaid wages. Employees might fear that hiring a lawyer to collect unpaid wages will cost more than the wages they collect. Fortunately, Congress anticipated that fear when it enacted the FLSA. Federal law requires the employer to pay the reasonable legal fees that an employee incurs to remedy a violation of the FLSA. Some cases of unpaid wages do not involve minimum wage or overtime. They involve withheld paychecks or the failure to pay promised compensation, such as a commission or bonus. In those cases, a Florida statute also shifts the burden to the employer to pay fees to an employee who prevails in a legal action to collect those wages. FLSA Wage Requirements Florida employers violate the FLSA minimum wage requirement in a variety of ways. Examples include: Requiring employees to keep working after they clock out. Requiring employees to perform different work, such as cleaning the premises, after they clock out. Requiring employees to work through lunch without paying them for the lunch period. Taking a “tip credit” from the wages of employees who are not tipped. Taking a “tip credit” from the wages of tipped employees for work that is separate from their tipped work. Improperly classifying an employee as an independent contractor. The FLSA requires employers to pay “time-and-a-half” for hours above 40 that a nonexempt employee works in a workweek. Nearly all employees who are paid by the hour are nonexempt employees. Salaried employees are nonexempt unless they meet strict criteria that determine whether an exemption applies. Examples of overtime violations by Florida employers include: Misclassifying nonexempt employees as exempt. Paying the regular hourly wage for all hours work without paying extra for overtime. “Shaving” overtime hours by consistently rounding down but never rounding up when computing overtime payments. Basing overtime wages on a pay rate that does not take account of all earnings. Making employees work through lunch and not counting the hours as overtime. Not paying overtime for work that employees do at home. Not paying overtime for job-related travel. Not paying overtime for time spent performing required tasks (such as donning gear) before work starts. Not paying overtime for on-call hours when the employee is not free to pursue his or her own activities. Employers are liable for back wages when they violate minimum wage and overtime laws. They are usually liable for a penalty that equals back wages. Attorney’s Fees for Wage Violations Some wage violations are sizeable, particularly when a wage theft victim brings a claim on behalf of co-workers who were cheated in the same way. In some cases, however, back wages reflect a violation that only lasted for a few weeks before the cheated employee quit or was discharged. Some employees worry that the expense of hiring an attorney will exceed the award of back wages. The FLSA requires employers to pay the reasonable attorney’s fee incurred by an employee who prevails in a claim for back wages caused by FLSA violations. In almost all cases, the court has no choice but to award fees to an employee who brings a successful FLSA lawsuit against an employer. In Florida, a state law allows employees to recover attorney’s fees when they make a successful claim for unpaid wages. Florida employment attorneys usually rely on state law when an unpaid wage claim is not based on the FLSA. While state law gives judges more discretion to award fees than federal law, most state judges are willing to award reasonable fees to employees who prevail in lawsuit for unpaid compensation. Since attorneys know that the employer will probably be required to pay a client’s reasonable legal fee if the client prevails in court, employment lawyers usually take cases for unpaid wages on a contingent basis. That means they don’t earn a fee unless they obtain a recovery. The terms of a contingent fee agreement may depend on the nature of the case. The fee might be a percentage of the recovery, it might be the amount paid by the employer, or it might be some combination of the two, depending on whether a fee is awarded by the court or a settlement is reached before or after filing lawsuit. In any event, the employee will not need to worry about paying the attorney more than the attorney recovers. An employment lawyer will explain the fee structure in detail before a wage theft victim decides whether to retain the attorney. Employees who believe they were cheated out of wages should not be afraid to call an employment lawyer for advice.
department of labor sign
By Ilona Anderson 09 Nov, 2021
Wage theft is an ongoing problem in Florida. The problem worsened during the pandemic, as agencies tasked with protecting employees relaxed their enforcement efforts in a misguided attempt to give employers “a break” in a difficult time. Wage theft occurs when an employer fails to pay minimum wage or cheats employees out of overtime wages that the law requires the employer to pay. Employees who are victimized by wage theft can pursue a remedy by making a complaint to the federal government or by seeking the assistance of an employment attorney. History shows that employees are often better served when they are represented by a private employment lawyer. How Employers Violate the FLSA The Fair Labor Standards Act (FLSA) requires almost all employers in the United States to pay a minimum wage to their employees. With the exception of some exempt employees, the FLSA also requires employers to pay overtime when an employee works more than 40 hours in a workweek. Employers violate the FLSA in a variety of ways. Some employers require employees to “clock out” at the end of their shift and to finish their work after the shift ends. An employer that does not pay for lunch breaks violates the FLSA by requiring an employee to answer the telephone while eating lunch. Restaurants are notorious for disregarding rules that govern “tip pools” in order to cheat their employees out of minimum wage payments. Some employers ignore overtime requirements and pay the same hourly wage for all hours that an employee works. Some employers improperly “shave” overtime hours by rounding hours down to the nearest quarter hour while never rounding hours up. Employers often tell an employee that they are exempt from overtime requirements because they are paid a salary, even when the employee’s position does not qualify as exempt. Employers also misclassify workers as independent contractors to avoid paying minimum wage and all the other benefits that come with employment, including contributing the employer’s share of FICA taxes. Options for Vindicating FLSA Violations Workers who have been cheated out of wages by an employer’s violation of the FLSA can file a complaint with the U.S. Department of Labor (DOL). The Wage and Hour Division of the DOL is responsible for investigating complaints of noncompliance with the FLSA. The DOL also has the power to take legal action to enforce the FLSA. Unfortunately, the DOL’s resources are limited. The DOL is most likely to conduct a full investigation when it believes a large employer is systematically cheating a substantial number of employees out of their wages. Even then, the DOL investigation may be slow or incomplete, simply because DOL doesn’t have all the employees it needs to investigate complaints of wage violations. The problem of lax enforcement was compounded during the pandemic. President Trump issued an executive order directing federal agencies to ease up on enforcement efforts against businesses that claimed to be making efforts to follow regulations. At the same time, the DOL made confusing changes to the “guidances” that help businesses understand and comply with regulations. Businesses saw those changes as an excuse to violate the FLSA. In many cases, the DOL decided that the executive order prevented it from pursuing immediate enforcement actions against those businesses. Even before the pandemic, a General Accounting Office investigation determined that “the Department of Labor is failing to adequately prevent or punish wage theft” and that “that the problem of wage theft is only getting worse because of weaker enforcement.” The DOL was criticized during congressional hearings for repeatedly “dropping the ball” during investigations of wage theft. Private Enforcement of the FLSA  Employees who are victimized by wage theft are not required to file a complaint with the DOL. They can instead elect to ask a private employment lawyer for help. An employment lawyer will evaluate the facts, review the employee’s pay stubs, and decide whether the evidence supports a claim for an FLSA violation. Depending on the circumstances, the lawyer might contact the employer to discuss an informal settlement of the claim. The lawyer might instead move forward immediately with a lawsuit to vindicate the employee’s rights. The remedies that a lawsuit will seek include all of unpaid wages that the employee should have received. In most cases, employees are entitled to an equal amount to punish the employer for its violation of the law. In other words, employees usually receive twice their back pay as a remedy for an FLSA violation. The FLSA requires an employer to pay the legal fees of an employee who prevails in making a wage claim. If a private employment lawyer is willing to represent a client seeking unpaid wages, there is no financial benefit in making a complaint to the DOL rather than hiring a private lawyer. The FLSA also prohibits employers from retaliating against employees who hire a lawyer to pursue a claim for an FLSA violation. Using a private lawyer to make a claim for unpaid wages is conduct that the FLSA protects. Firing or taking other retaliatory action against an employee for pursuing an FLSA claim is against the law. Employees can pursue additional legal remedies when they are victimized by retaliation. Unlike the understaffed and overworked DOL, a private employment lawyer will only take a case if the lawyer has time to pursue it diligently. Private lawyers believe in the cases that they accept. They represent clients with wage claims when they are confident that the outcome will be favorable. Private lawyers are in a position to provide personalized, responsive legal services to employees who have been cheated out of wages. In most cases, it makes sense to seek legal advice from a private employment lawyer before making a complaint about unpaid wages to the DOL.
By Ilona Anderson 10 Aug, 2021
Stereotypes have long placed pregnant women at a disadvantage in the workplace. Employers who assume that pregnant women are not capable of hard work may refuse to hire pregnant job applicants. Employers who assume that a pregnant employee will take advantage of a pregnancy leave and then quit her job may fire the employee as soon as it learns of her pregnancy. Employers who assume that pregnant women are fragile may deprive them of the opportunity to work extra shifts or to perform difficult jobs with higher pay. Congress responded to negative stereotypes that harm pregnant women in the workforce by enacting the Pregnancy Discrimination Act (PDA). The PDA prohibits discrimination against employees because of their pregnancy status or pregnancy-related health conditions. Unfortunately, too many employers get away with pregnancy discrimination because pregnant women do not consult an employment lawyer after they are fired, harassed, or treated less favorably than employees who are not pregnant. The Historic Importance of the PDA The Civil Rights Act of 1964 prohibits employment discrimination because of sex. Since only women become pregnant, it should be obvious that discrimination because of pregnancy is discrimination because of the employee’s gender. That logic was not apparent to the Supreme Court. In 1976, the Court held that an employer’s decision to exclude pregnancy-related disabilities from a disability benefit plan did not discriminate on the basis of sex. The Court reasoned that the exclusion applies to every employee who becomes pregnant, regardless of gender, so the exclusion was not sexually discriminatory. In dissent, Justice Brennan made the obvious point that denying benefits for a health condition that only affects women is necessarily a gender-based decision. Some lower courts regarded the Supreme Court’s reasoning as categorically excluding all employment actions based on pregnancy from the prohibition against sex discrimination. Congress responded in 1978 by enacting the PDA. PDA Protections The PDA applies to employers that have at least 15 employees. The PDA makes it unlawful for an employer to discriminate against an employee because of her pregnancy or childbirth, or because of a medical condition related to pregnancy or childbirth. Examples of unlawful discrimination include: refusing to hire a job applicant because she is pregnant; firing an employee because she is pregnant; firing an employee because she is lactating; using pregnancy as a reason to treat a pregnant employee less favorably than nonpregnant employees with regard to pay, job assignments, promotions, training, layoffs, fringe benefits, and other terms and conditions of employment; taking away seniority or accrued retirement benefits because an employee takes a maternity leave; depriving a pregnant employee of a maternity leave when the employer grants leave to nonpregnant employees who are temporarily disabled; failing to accommodate an employee’s health condition caused by pregnancy (for example, by providing light duty or alternate job assignments) in the same way an employer would accommodate a nonpregnant employee who is temporarily disabled; and harassing an employee because she is pregnant. The PDA allows victims of pregnancy discrimination to sue for back pay and reinstatement to their position (if they were fired), as well as compensation for emotional distress and punitive damages. Americans with Disabilities Act Other employment laws provide additional protections to pregnant employees. While the physical difficulties that accompany a pregnancy are not usually disabling, certain pregnancy-related conditions may constitute a temporary disability that falls within the scope of the Americans with Disabilities Act (ADA). For example, the Equal Employment Opportunities Commission suggests that preeclampsia and gestational diabetes might qualify as disabilities protected by the ADA, depending on the nature of the impairment that those conditions cause. Even if a pregnant employee is not disabled, the ADA protects employees when their employers regard them as being disabled. When a disability is protected by the ADA, an employee is entitled to ask an employer for a reasonable accommodation that will permit the pregnant employee to perform her job. Offering more frequent breaks, placing the employee on a part-time schedule, or permitting the employee to work from home might be reasonable accommodations, depending on the circumstances. Maternity and Parental Leave Federal and Florida law does not necessarily require an employer to give a pregnant woman a leave so that she can give birth. As noted above, however, it the employer offers short-term sick leave or disability leave for other health conditions, the PDA prohibits the employer from denying a pregnant employee’s request to use that leave to cover time off from work while she gives birth. In addition, the Family and Medical Leave Act (FMLA) requires some employers to give new mothers an unpaid leave so that they can spend time with their new baby. Employees may generally take up to 12 weeks of unpaid leave. If the employee has accrued vacation time or other paid leave, the employee can usually substitute that paid leave for the unpaid leave provided by the FMLA. Employers that have 50 or more employees must provide leaves that the FMLA requires. Employees qualify if they have worked for the employer for at least 1,250 hours during the 12 months before the leave starts, and if the employer has 50 employees within 75 miles of the mother’s work location. An FMLA leave is job protected. The employer must return the employee to her former job or a comparable job after the leave ends. The FMLA also prohibits retaliation against employees who request or take a leave that the employer must provide. Employees have legal remedies when they are denied a parental leave to which they are entitled, when an employer will not allow them to return to work after the leave ends, or when the employer fires or otherwise retaliates against an employee who requests or takes a leave. Nursing Mothers A federal law requires most employers to give reasonable break periods to nursing employees each day so that they can express their breast milk. The employer must generally provide a private space, other than a bathroom, for that purpose. The nursing break requirement extends for up to a year after the mother gives birth, provided she has a continuing need to express breast milk. While most businesses must provide nursing break times, a business with 50 or fewer employees may be exempt if providing the break times would cause an undue hardship. Exemptions from the law’s coverage are the exception rather than the rule. Legal Assistance for Pregnant Employees While pregnant employees have significant legal protections, federal and Florida laws require employees to take prompt action to make a discrimination claim. In addition, evidence is easier to gather while the facts are still fresh in everyone’s mind. Contacting an employment lawyer immediately after an employee suspects she has been the victim of pregnancy discrimination is the best way to preserve an employee’s right to pursue a remedy. Pregnant employees who are not sure whether the law has been broken, as well as employees who are concerned that their employer is likely to violate the law, can contact a Florida employment lawyer to get advice about their particular concerns. When Saenz & Anderson agrees to represent a victim of pregnancy discrimination under the PDA, ADA, or FMLA, the discrimination victim pays no up-front fee. Federal discrimination laws generally require the employer to pay the discrimination victim’s legal fees and expenses if the victim prevails. We explain all fee agreements in detail before our clients decide whether to retain our services.
By Ilona Demenina Anderson 24 Jun, 2021
A recent White House proclamation reminds the nation that June is LGBTQ Pride Month. While Florida and the country have made significant progress in recognizing the dignity of all individuals, regardless of their sexual identity, the struggle against discrimination presents ongoing challenges. On both the federal and state level, courts and legislatures have considered whether workplace discrimination against members of the LGBTQ community is or should be prohibited. While the trend toward expanding protection against discrimination is encouraging, more work needs to be done.
By Ilona Demenina Anderson, Esq. 21 Jan, 2021
By Ilona Demenina Anderson Employers have a legal obligation to pay their hourly employees for all the hours they work. Some employers find ways to avoid paying wages that are due. Employment lawyers refer to those practices as “wage theft.” “Wage theft” isn’t necessarily a crime. Courts usually view wage theft as a civil matter. Failing [..] The post What Is Wage Theft? appeared first on Saenz & Anderson | Attorneys at Law Serving Aventura, FL and Miami-Dade County.
By Ilona Demenina Anderson, Esq. 06 Oct, 2020
Employment laws protect the rights of employees. When those rights are violated, employees have the right to take legal action. Depending on the nature of the violation, they may be entitled to lost wages, compensation for emotional distress, and other remedies. Some employees are reluctant to pursue claims against a former employer because they worry [..] The post Will I Ever Get Another Job if I Sue a Former Employer? appeared first on Saenz & Anderson | Attorneys at Law Serving Aventura, FL and Miami-Dade County.
By Ilona Demenina Anderson, Esq. 20 Sep, 2020
By Ilona Demenina Anderson Hourly employees must be paid for each hour (or fraction of an hour) they work. Some employers insist that their employees clock out at quitting time even if there is more work to be done. Those employers tell employees that they need to finish their work before they leave. They refuse to [..] The post Should My Employer Pay Me If I Work Off the Clock? appeared first on Saenz & Anderson | Attorneys at Law Serving Aventura, FL and Miami-Dade County.
By Ilona Demenina Anderson, Esq. 09 Jun, 2020
By Ilona Demenina Anderson As stay-at-home orders are lifted and as more businesses reopen, some employees are returning to work. While employees welcome the opportunity to be productive wage earners, they also have legitimate concerns about their right to work in a safe workplace that is free from discrimination. Here are some general principles that employees [..] The post An Employee’s Guide to Returning from Quarantine appeared first on Saenz & Anderson | Attorneys at Law Serving Aventura, FL and Miami-Dade County.
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