Employee Misclassification Common Violation Of FLSA

A high-end childcare center has been found in violation of federal overtime compensation laws. According to news reports, Crème de la Crème, has been ordered to pay back wages to more than 350 current and formers workers based on violations of federal overtime policy and record keeping. Crème de law Crème operates day car centers in eight states across the country.

The infractions cited for are common and far too prevalent in all types of work environments. These include:

• Failing to pay overtime for hours spent in excess of 40 in any one workweek.

According to the Fair Labor Standards Act (FLSA) non-exempt workers who put in more than 40 hours in any workweek are entitled to overtime pay at a rate of one and one-half times their regular rate of pay.

Problems arise when companies fail to account for all hours an employee works. Often, employers fail to include time workers are required to be on site but are not “clocked in,” or time spent working during scheduled lunch or rest breaks. Here, the child care firm failing to pay overtime hours to workers who spent time at mandatory training courses and performed work prior to an after scheduled shifts.

If you have questions concerning your pay or believe that your employer may have violated the FLSA, its important to consult with an experienced Atlanta overtime lawyer right away.

• Misclassifying “employees” as “independent contractors.”

How a worker is classified is one of the biggest challenges and sources of violations of the Fair Labor Standards Act. The FLSA provides for overtime compensation for non-exempt workers. Determining whether and individual is exempt vs. non-exempt or an employee v. independent contract plays a big role in determining whether they are entitled to overtime pay. As a result, classification of employment status is crucial. Many employers whether purposefully or accidentally misclassify employees as “independent contractors” and avoid paying workers the compensation they deserve.

While no one factor determines if a worker should be considered an independent contractor or an employee, some guidelines exist. The general rule is that an individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done.

On the other hand, a person may be considered an employee where an employer controls the type of work that will be done and how it will be done. This may be true even if the employee has significant freedom. Where another person controls the details of the services provided, then a worker is generally considered an employee.

Further complicating employee classification is the distinction between exempt v. non-exempt employees. Generally, if you perform a certain type of “white collar” work, then you are exempt from the overtime laws, and your employer need not pay you time and a half no matter how many hours you work in a week. If, however, the exemptions do not apply to you, then you are considered non-exempt, and your employer must pay you time and a half for every hour you work more than 40 in any workweek.

There are three principal exemptions under the FLSA:
• Executive • Administrative • Professional
In order for your employer to establish that your work falls under one of these exemptions, thereby disqualifying you from overtime, your employer must prove that you are paid on a salary basis in an amount not less than $455 per week and that your principal duties are executive, administrative, or professional in nature.

For more information or if you believe that you have not been paid all the wages you are entitled to, please contact the top Georgia wage and hour law firm of Buckley Bala Wilson Mew LLP for an immediate case evaluation.