DOL Clean Up Sweeping the Nation

Following up on our blog post on the Department of Labor’s (“DOL”) restaurant clean up initiative, recent DOL press releases demonstrate that efforts to penalize restaurant industry employers who are not FLSA compliant are only increasing.

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There's More Than One Way to Sink a Ship

Following an investigation by the Department of Labor’s Wage and Hour Division , Norwegian Cruise Line is being asked to pay $526,602.00 in back wages.

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Ongoing DOL NY Restaurant Investigation Finding Repeated Violations

In a further example of industry-specific targeting for wage and hour violations, the Department of Labor issued a press release regarding a multi-year investigation of the full-service restaurant industry on Long Island, NY, finding multiple violations in numerous establishments.

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There's An App for That: DOL of iPhone/iPod/iPad App Helps Many Employees Track and Calculate What They're Owed

Everyone’s an app developer these days, it seems—your poker buddy, your niece in college, the poorly socialized guy in IT, and the would-be software tycoon down the street, for example. Uncle Sam’s gotten into the act, too: the Department of Labor just released a smartphone timesheet app.

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Practice Over Policy - Overtime Wages Are Due For All Hours Worked Even If Workers Disregard Company Policies Or Instructions From Supervisors

Just because an employer or its supervisors tell employees not to work overtime or there is a written policy forbidding employees from working overtime, does not mean that overtime wages do not need to be paid to employees who work overtime hours. Workers who are not otherwise exempt under the overtime laws and who actually work more than 40 hours in a week must be paid overtime – even if they are instructed not to work overtime. 

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Time Record Retention: The Proof is in the Employer's Pudding

In recent years, the U.S. Department of Labor (“DOL”) has informally partnered with advocacy groups and grassroots organizations of various states on behalf of workers.  This has engendered a more proactive DOL, resulting in more cases, and more importantly, more fines.  Employers that do not maintain employee time records, or keep shoddy time records are feeling the brunt of this increased enforcement. 

The problem with poor time record retention is simple.  If an employer fails to maintain accurate time records, an employee’s credible testimony or other evidence concerning his or her hours worked will be sufficient to prove an overtime claim.  The burden of proof then shifts to the employer to show that the hours claimed were not worked.  Challenging the employee’s assertion is a difficult burden without records to back up the employer. 

This may have been part of the reason carwash chain Lage Management Corporation agreed in late June to pay $3.4 million in back wages and liquidated damages to almost 1200 current and former employees to settle a lawsuit brought by the U.S. Department of Labor in August 2005.  This amount was in addition to the $1.3 million in back wages and damages it had already paid to 200 other employees in three previous settlements in this matter. 

Although there appears to be a multitude of FLSA violations occurring at Lage Management Corporation carwashes, the inability to provide adequate time records probably doomed these carwashes from the start.  The takeaway is simple.  For employers who are properly paying employees for the work they provide, maintaining and ensuring that time records are accurate will help them defend themselves against future claims, respond to government requests for information, and avoid penalties for failure to comply with applicable laws.    

U.S. Postal Service Faces Overtime Claims

Appropriate remedies for inefficient work are performance management and redistribution of workloads, not modification of time records regarding overtime. Employers should be realistic in terms of setting expectations for use of overtime and the workload assigned.  Even if workers take longer than the time designated for a task, employers still must pay overtime.  In short, to control overtime employers should manage their workers and discipline them if necessary, not modify time records. 

However, these rules can be hard for employers frustrated with employee performance to follow.  Even the federal government – this time, the U.S. Postal Service – has been accused of violating the federal overtime rules.  In a lawsuit filed on June 10, 2009 in the Eastern District of Texas, mail carriers in Texarkana and surrounding areas allege that the USPS violated the Fair Labor Standards Act by requiring them to deliver all assigned mail within eight (8) hours, even though their supervisors were informed or should have known that it would take longer.  The lawsuit also alleges that the supervisors would routinely modify time records to ensure that no overtime was recorded.  The lawsuit seeks $10,000 or more for each plaintiff and estimates that approximately 20,000 mail carriers might be part of the class – i.e., there is a possible total of $200 million in compensatory damages alone.   So, while it may be true that “neither rain, nor sleet, nor gloom of night stays these couriers from the swift completion of their appointed rounds,” when doing so takes more than 40 hours a week, mail carriers are entitled to overtime pay.