A Judge in the Southern District of New York issued a significant opinion this week regarding the duties of a company to preserve evidence in a nationwide FLSA unpaid overtime case.  Judge Cott denied KPMG’s motion for a protective order, requiring KPMG to maintain internal hard drives of thousands of Advisory Associates who worked for KPMG in the past 6 years.  KPMG had argued that the expense and time required was too great.  The Court disagreed, stating that KPMG must ...

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A class action was recently filed against Fox Searchlight Pictures on behalf of unpaid interns who worked on the popular movie Black Swan.  The lawsuit alleges that interns worked well over 40 hours per week, while receiving no compensation.  Under the law, generally an unpaid internship is legal if the person is receiving academic credit and the company receives no financial benefit in return.  However, if no academic credit is received, the intern would be entitled to minimum wage and ...

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On September 26, 2011, the Second Circuit Court of Appeals issued a landmark decision in a unpaid wages lawsuit against restaurants owned by Smith & Wollensky, a well-known brand of steakhouses.  The Court ruled that Plaintiffs are able to bring a simultaneous Collective Action under the Fair Labor Standards Act (FLSA) and class action pursuant to the New York Labor Law (NYLL) in the same case.  The Court ruled that under Federal Law and New York law, the violations are ...

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Are Commisisoned Employees Entitled to Minimum Wage and Overtime?

Generally, the answer is yes.  Common industries where commissioned employees are not paid properly include account executives and mortgage loan officers.

1. Account Executives- these employees are typically paid salary plus commission.  In that regard, account executives are entitled to overtime pay if they work over 40 hours a week.  The reason is simple: Account Executives do not exercise discretion and independent judgment regarding matters of significance.  An Account Executive cannot decide how much to sell the product for, they simply ...

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Federal Express has just settled an unpaid wages case in California for $5.2 million. The lawsuit was certified as a class action, so that many employees will be receiving money. The lawsuit claimed that employees were forced to work through meal and rest breaks without being paid for that time. Many companies commit similar violations, such as automatically deducting an hour for lunch, even if the employee eats at his desk and works through lunch.

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JP Morgan announced a class action settlement covering 1,600 current and former mortgage loan officers in California. The settlement is for $9 million. These loan officer settlements come on the heels of a Department of Labor opinion letter, whereby the agency indicated most loan officers were entitled to minimum wage and overtime pay. Loan officers are entitled to overtime even if they are paid on a commission only basis.

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A Federal Judge in Georgia has ruled that dancers at upscale gentleman’s clubs are employees, rather than independent contractors. As employees, dancers are entitled to certain rights, such as minimum wage and overtime. Historically, strip clubs classified all dancers, DJ’s and hair/makeup personnel in order to avoid paying them wages, payroll taxes, unemployment and worker’s compensation. Hopefully, Judges in New York will follow this decision, as there are many pending cases in New York against clubs for ...

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Tyson Foods $32 Million Settlement

Tyson Foods Inc. on reached a $32 million settlement with chicken processing factory workers who sued the food giant over unpaid time spent donning and doffing work-related attire and safety gear.  Donning and Doffing cases involve the time a worker spends changing in and out of a protective uniform before or after a shift.  This settlement is one of the largest ever in this type of case.

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Lowe’s has settled a California Class Action on behalf of Loss Prevention Managers for $3 million. Each class member will receive an average of over $9,000, which is very significant. This is another example of a Company not paying salaried employees overtime. Unfortunately, most salried employees are entitled to overtime, but they are unaware of their rights.

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