DOL's New Rule On Classification of Employees Vs. Contractors Will Benefit Workers

 Last year, the Department of Labor announced a new proposed rule about how workers are classified as employees or independent contractors. The comments period has ended, so we can expect the new rule to be implemented any time. 

DOL noted, "As explained below, as used in this proposal, the term “independent contractor” refers to workers who, as a matter of economic reality, are not economically dependent on their employer for work and are in business for themselves." And that is exactly how it should be. Instead, employers are misclassifying employees as contractors to avoid the application of employment laws and to avoid paying employment taxes.

The new rule would actually revert to an older rule that has existed in interpreting the Fair Labor Standards Act. "The ultimate inquiry is whether, as a matter of economic reality, the worker is either economically dependent on the employer for work (and is thus an employee) or is in business for themself (and is thus an independent contractor). To answer this ultimate inquiry of economic dependence, the courts and the Department have historically conducted a totality-of-the-circumstances analysis, considering multiple factors to determine whether a worker is an employee or an independent contractor under the FLSA."

This new rule will benefit workers in several ways:

Greater protection under labor laws: Workers who are classified as employees are entitled to greater protection under labor laws. For example, they are protected by the National Labor Relations Act, which gives employees the right to form and join a union, the Fair Labor Standards Act, which sets the minimum wage and overtime standards, state and federal discrimination laws, and whistleblower laws.

Better pay and benefits: Workers who are classified as employees are typically eligible for a wider range of benefits and may be entitled to a higher minimum wage. For example, employees are typically entitled to overtime pay, paid time off, and health insurance, while independent contractors are not.

Improved working conditions: Workers who are classified as employees are entitled to a safe and healthy workplace. This includes protection from workplace hazards and discrimination. Employers are also required to provide reasonable accommodations for employees with disabilities. Employees can also unionize to negotiate for better working conditions. Contractors cannot.

No double taxation: Independent contractors have to pay double the amount of social security and medicare taxes. Employers pay half of these employment taxes for employees. 

Overall, the Department of Labor's new rule on worker classification benefits workers by providing increased job security, better pay and benefits, improved working conditions, greater protection under labor laws, and clarity for both workers and employers. By ensuring that workers are classified correctly, the rule helps to ensure that workers receive the benefits and protections they deserve.

If you think you are misclassified as a contractor, contact an employee-side employment lawyer in your state. You also can report your employer to the Department of Labor and the IRS. They may additionally be liable under state wage theft laws. 

Department Of Labor Gives Examples of Illegal Retaliation

The U.S. Department of Labor has provided a guidance that gives specific examples of what constitutes illegal retaliation. The complete guidance is here. Some specific examples they provided are:

Example 1: Employee calls WHD about overtime. 

Nelson works as a cook at a restaurant and contacts WHD confidentially to inquire about overtime pay. Nelson tells another cook what he learned from WHD and his co-worker tells someone on the wait staff. Later that day their manager overhears two wait staff talking about the call and terminates Nelson’s employment. In this scenario, terminating Nelson’s employment because he contacted WHD (or was suspected of contacting WHD) would be prohibited. WHD may investigate or Nelson may file a private cause of action seeking appropriate remedies, including, but not limited to, reinstatement, lost wages, and liquidated damages. 

Example 2: Employee asks for additional break time to express breast milk. 

Aisha is a new mother who works for a call center. She uses her lunch break to express breast milk and needs additional time to finish pumping before she is able to return calls at her work station. Her boss complains when she is late returning from lunch and tells her she cannot use any time beyond her meal break for “personal stuff.” When Aisha asks if she has a right to take another break for pumping later in the day, her boss sends her home for the rest of her shift without pay. In this scenario, Aisha was sent home for attempting to exercise her rights under the FLSA. After investigating, WHD, in addition to requiring the employer to provide the requisite time and space for nursing mothers in compliance with the law, determines Aisha may also be entitled to back pay and liquidated damages for wages she lost when her boss sent her home in retaliation for requesting a break. 

Example: Worker penalized for using FMLA leave to care for child. 

Jaime takes approved FMLA leave to care for his seven-year-old daughter when she is in the hospital overnight and recovering from surgery. Jaime returns to work as scheduled but receives three negative attendance points for the days he used FMLA leave. Under his employer’s no fault attendance plan, employees are allocated points for every absence from work, regardless of the reason for the absence. Employees are disciplined when they accrue a set number of points, and employees who accrue more than ten points in a calendar year may be terminated. 2 A state employee’s private right of action may be limited by the sovereign immunity provision of the Eleventh Amendment. Id. 6 In this scenario, assigning attendance points to Jaime’s FMLA-protected leave days would be prohibited. Under the FMLA’s anti-retaliation provisions, an employer may not use the taking of FMLA leave as a negative factor in employment actions and may not count FMLA leave days under no fault attendance policies. In an investigation, WHD would require that the employer remove the attendance points from Jaime’s employment record for the days he used FMLA leave to care for his daughter. 

Example: Employee returns to work and her hours are cut in half. 

Deborah used FMLA leave from her job as a front desk clerk at a hotel when she suffered from migraine headaches that made it impossible for her to work. She was approved for FMLA leave and used it for three days in January and one day in February. In April, she had another episode, and used FMLA leave for two days. When she returned to work her new manager reduced her schedule from 40 hours to 20 hours a week saying they need workers who will show up every day. WHD completes an investigation and requires the hotel to return Deborah to her previous schedule and pay her for an additional 20 hours a week in wages for the duration of the period she worked the reduced schedule. WHD also requires the employer to pay Deborah an amount equivalent to her lost wages in liquidated damages. 

Example: WHD investigates and employer fires crew of agricultural workers. 

An employer houses 15 migrant agricultural workers in housing that is determined to be substandard. Workers sleep on the floor, have no electricity, use water from a garden hose, and have one hotplate for cooking that is shared among all of the workers. After a WHD investigator arrives at the location unannounced to inspect the housing conditions and interview workers, the employer fires all 15 workers because, “We don’t want any whiners on the team.” The employer does not pay the workers for their final week of work. In this scenario, WHD may pursue back pay, and reinstatement of employment for every worker, and civil money penalty assessments against the employer.

Example: Worker threatened with deportation. 

An employer participating in the H-1B visa program hired seven workers with H-1B visas to provide occupational, physical, and speech therapy services to patients in their homes. The employer deducted a monthly sponsorship fee from the pay of each worker with an H-1B visa. The employer required the workers to sign a form declaring that the deductions were for recouping personal loans it purportedly gave to the workers. When one worker refused to sign the document, the employer threatened him with deportation, criminal perjury, and threats of physical violence against his family in his home country. In this scenario, WHD may pursue back wages for the illegal deduction, civil money penalties against the employer for the retaliation, debarment from the H-1B program for two years, and other appropriate legal or equitable remedies. WHD also may, potentially, make a referral to the U.S. Department of Justice, Civil Rights Division, Immigrant and Employee Rights Section.2F 3

Example: Supervisor lies about employee’s performance history because of WHD interview. 

Charlotte is an employee at a vehicle assembly plant where WHD conducts an LVC compliance verification under the USMCA. She was instructed by her immediate supervisor to tell WHD representatives that she earns $16 an hour despite the fact that she actually earns $13.50 an hour. After the WHD representatives leave the worksite, Charlotte’s supervisor asks her what she said to WHD representatives. When Charlotte states that she told the truth, the supervisor fabricates a story of insubordination that results in the termination of Charlotte’s employment. Charlotte had no prior occurrences of corrective action and was otherwise in good standing with her employer. In this scenario, after investigating and verifying that Charlotte was retaliated against for cooperating with a WHD investigation, WHD may pursue lost wages, reinstatement, and the assessment of a civil money penalty.

Example: Federal contract worker’s promotion denied after they inquire about sick leave. 

Bernard works on a federal contract covered by EO 13706. He is a supervisor of maintenance services at a national park and is about to be promoted. When Bernard emails his employer, the contractor, asking about the availability of paid sick leave to attend his spouse’s upcoming medical appointments, his planned promotion is cancelled and he is rescheduled from working weekdays only to weekdays and weekend shifts. When Bernard asks about the changes, his manager states the changes were made so that he would have fewer responsibilities at work and more time available to help with his wife’s health care. A representative for the national park (the contracting agency) who communicates with Bernard about work orders during the week, contacts WHD on Bernard’s behalf. In this scenario, WHD may investigate to determine whether the maintenance contractor has violated the anti-retaliation provisions of the EO and its regulations. The employer may be required to grant Bernard the promotion and return him to his previous work schedule and duties. He may also receive back wages to compensate for any difference in wages received compared to the wages he would have received if the retaliatory actions had not occurred. 

Example: Contract worker asks about deductions from pay and is denied bonus.

Geri is a crewmember working on the construction of a new post office building for a federal contractor covered by EO 14026. Geri asks her company payroll department about deductions from her paycheck that may bring her earnings below $15.00 per hour. The payroll department refers her question to a corporate officer of the company who directs the payroll department to cancel Geri’s quarterly performance bonus. In this scenario, a retaliatory denial of the bonus would be prohibited by EO 14026. WHD may investigate, determine the employer violated the EO, and require payment of the bonus and other wages that may be due if the deductions were improperly made.

These are just a few examples they provide for retaliation. The agency also describes retaliation in general:

Retaliation occurs when an employer, including through a manager, supervisor, administrator or other agent, takes an adverse action against an employee because they engaged in a protected activity.

 Examples of protected activity include making a complaint to a manager, employer, or WHD; cooperating with a WHD investigation; requesting payment of wages; refusing to return back wages to the employer; complaints by a third party on behalf of an employee; consulting with WHD staff; exercising rights or attempting to exercise rights, such as requesting certain types of leave; and testifying at trial. 

Under many of the statutes enforced by WHD, an employee can be protected from retaliation even if the employee’s complaint to the employer or WHD is based on a mistaken belief that the employee’s rights have been violated. For example, if a worker believes, and so tells an employer, that he is owed overtime pay for the hours he worked, the worker has engaged in a protected activity, even if the worker’s belief that he is due overtime turns out to be mistaken because he has been correctly paid. 

An adverse action is any action that could dissuade an employee from raising a concern about a possible violation or engaging in other protected activity, such as filing a complaint or cooperating in a WHD investigation. An adverse action taken by an employer can take many forms, including termination; confiscating a worker’s passport or other immigration documents; disciplinary actions; threats to employees, their families or co-workers; reduction of work hours or rate of pay; shift changes or elimination of premium pay; blacklisting; and demotion. Adverse actions can be subtle, such as excluding an employee from a regularly scheduled meeting, or overt, such as intimidating employees to return back wages found due (“kickbacks”), threatening an employee with deportation, or terminating an employee. 

Bottom line: If you think you've been retaliated against for objecting to something illegal your employer did, for contacting a government agency, or for taking protected medical leave, you should talk to an employment lawyer in your state about your rights. 

 

Finally, One City Goes After Thieving Employers

I've done a few posts about the criminalization of employment law, and in those posts I've asked why it's all one-sided. Employees are going to jail for alleged trade secret theft, accessing employer computers once they're fired, and a host of other offenses. Yet employers who steal from employees and who commit other crimes against employees largely escape.

Well, one city has had enough. Philadelphia now has a unit in the DA's office just for prosecuting crimes against employees. The big focus is wage theft, but I'm betting they will get all kinds of crimes they can prosecute, like assault and battery, theft of personal items, antitrust violations if they have a state antitrust law, and other criminal violations.

It's about time. When will other cities and states prosecute employers for breaking the laws with respect to employees? Stay tuned.

The Criminalization Of Employment Law

A new indictment in a trade secret case, where a former employee opened his own business, made me think about something that's been bothering me for awhile, namely, the criminalization of employment law. I did a piece about this a couple years ago called Your Ex-Boss Wants You In Jail. It's gotten worse. Not only are we sending employees to jail for what used to be civil offenses, but the criminalization is completely one-sided. Employees blink wrong, go to jail. Employers can't get tossed in the hoosegow no matter how bad they misbehave.

Here's what The Dallas Morning News says about the case:

The indictment states that Tezock was an employee of Voltaix for about 16 months until September 30, 2005, when he was scheduled to be let go from the company.

During the last month of his employment he was allowed to complete a project from home, working with proprietary company files on his personal computer. It was during this time that the district attorney’s office alleges Tezock made copies of a secret recipe for germane, a valuable chemical used in semiconductors and solar technology.

Speaking through an attorney, Tezock denied the charge that he had stolen plans to produce germane.

A letter released by Tezock’s legal counsel said that he had applied and was granted a patent for his method of germane production in 2009. According to Tezock, Voltaix’s response at that time was to try and re-hire him.

Daniel Therings, a former attorney for Metaloids, said that thereafter Voltaix brought a civil action against the company and Tezock in 2010. Court documents filed in Texas’ fifth district court of appeals show the company asked the court to stop Metoloids from producing germane.

While Therings said the case is still caught up in appeals, he said the court sided with Metaloids. A news brief on the company’s website said Voltaix was ordered to pay the cost of further litigation.

He got a patent for it, but it's their trade secret? Let's assume that this isn't as ridiculous as it sounds. So an employee who uses alleged trade secrets to open his own business is a criminal, despite antitrust laws saying competition is one of the biggest tenets of capitalism. Indeed you can look at all the arguments againstnoncompetes in Massachusetts to see why letting employees compete with former employers is a good thing. Okay, taking trade secrets is bad, if it really happened. So sue the employee for any damages. But a crime?

One employee was sentenced to four years in prison for trade secret violations. Another employee is sentenced to 97 months. There are trade secret convictions and more trade secret convictions.

Then there employees getting convicted for exceeding their authority to access information on computers at work. One guy was sentenced to 41 months under the Computer Fraud and Abuse Act and his sentence was finally reversed on appeal. CFAA prosecutions have been all the rage among employers seeking to toss employees in jail. Yet if you look at the civil cases on CFAA, you can see just how broad this law is and how much employees are at risk if they click the wrong link at work.

 Employers Skate

Then look at the employer side. No criminalization there. Despite attempts to criminalize wage theft, all we get are local ordinances and attempts by Republicans to make even the wage theft ordinances illegal. Wage theft is rampant, and it costs us all money. Several Florida counties have passed ordinances to beef up efforts to go after employers who steal employee wages. They should be throwing them in jail, but no, can’t do that. Heck, Broward County couldn't even use the term "wage theft" in its ordinance because employer groups threw a hissy fit.

Look at employers who violate antitrust laws, which have criminal penalties, by the way, by forcing low level employees who can’t affordto fight to sign noncompete agreements for the sole purpose of preventing competition. Are they being prosecuted for making employees virtual indentured servants? No way. What about eBay, Apple, Google and othersconspiring to violate antitrust laws with no-poach hiring agreements? Criminal prosecutions? Nope. Slap on the wrist.

Egypt just made sexual harassment a crime. We can’t even get federal laws passed making sexual harassment of unpaid interns illegal. That’s right. Our kids have no legal protection against sexual harassment anywhere but Oregon and NY.

Groping teenagers and young women? Not even a civil offense. Stealing employee wages? Not a crime. But starting a competing business against your former employer? That’s a jailing offense.

Seizing Employee Property?

Now employers want to pass a law allowing courts to seize the property of former employees who dare to compete. The Fourth Amendment be damned. How can you fight a case if you don't have the proof? You can't, and that's exactly what employers want. They can shut down employees who dare to compete without lifting a finger. Where's the outrage? Why isn't hell being raised at the prospect of this ridiculous new law?

This makes me mad as hell. Does it make you mad too? Then start raising hell with your legislators. Tell them to stop the one-sided criminalization of employment law. And tell them to say no to seizure of employee property for alleged trade secret violations.

Let's not give up employee rights so easily.

Florida Retail Federation, Republican Legislators Still Want To Legalize Wage Theft

I previously reported that big business in Florida has made three attempts to repeal local efforts to crack down on corporate wage theft. It all started when Miami-Dade County passed an ordinance providing for triple damages for employers who fail to pay wages. First, Big Employer tried to get legislation passed to repeal local laws that punish employers for stealing employee wages. Employees got another victory when Broward County passed its own wage theft ordinance. Then the Florida Retail Federation along with Republican legislators made another failed attempt last year to pass legislation that would legalize wage theft.  Alachua County's new wage theft ordinance just went into effect. Palm Beach County is still working on efforts to combat wage theft.

I thought maybe the Republicans and Big Employer would give up after these losses. Well, they're baaaack. This time, they're going after all of Florida's laws requiring timely payment of wages, under the Orwellian guise of an anti-wage theft law. SB 926 is a parade of horrors for Florida employees. What do the working people of Florida get in this lovely gift for thieving employers?

• Any ordinances passed by counties that are beneficial to employees whose wages were stolen will be gone. All counties can do is try to mediate the dispute to try to get the employee paid, with no enforcement ability.
• The statute of limitations is shortened from 2 years to 1 year (and 2 years is pretty short for many employees who put up with late and partial payment of wages for years based on false promises).
• Employees have to eat their attorney's fees. Right now, prevailing employees get to make thieving employers pay their attorney's fees, which can be as much as or more than the wages owed.
• Counties, cities and towns that steal employee wages get a free pass. I guess government employees are now volunteers if their employer decides to stop paying? 

 Just who is it that benefits from making it more difficult for employees to go after thieving employers? It isn't the taxpayer who works for a living. It isn't legitimate Florida business either. How can any business compete with a company that gets free labor?

The Research Institute on Social and Economic Policy Center for Labor Research and Studies at Florida International University did a study about wage theft in Florida and it's an eye-opener. Here are some of their key findings:

• The primary pillars of Florida’s economy are undermined by widespread theft of employees’ wages. Florida’s key industries have the highest numbers of reported wage violations—tourism, retail trade and construction. 
• In spite of ample evidence of widespread wage theft among low income workers, as of December 2011, the Florida Attorney General had not brought one single civil action to enforce the state’s minimum wage law enacted in 2004. 
• Jobs in both tourism and retail tend to pay relatively low wages. Thus, when there is theft from wages that are already relatively low, employees and their families are likely to suffer even more severely. 
• The wage theft stories collected by community based organizations offer a glimpse into the impact of wage theft on individual employees. They demonstrate the unscrupulous competitive advantage that some employers gain by ignoring the law and causing suffering most often among those who can least afford it. When we consider that many employees who lose wages to wage theft earn at or near minimum wage with no benefits like health insurance we can imagine that the loss of even a small amount of earnings imposes real hardship. 
• This analysis of wage theft cases also raises the question of whether a county and state economy can be healthy and grow while tolerating an unjust business model that avoids contributing to tax revenues. The employers who fail to follow the laws concerning their employees create an unfair business environment that penalizes those who do follow the law. Maintaining a level playing field for businesses is critical to maintaining a competitive business environment and to economic growth. The dishonest business model of practicing wage theft puts law abiding employers at a competitive disadvantage and undermines Florida’s efforts to attract business.
• The data from this report reveals that over $28 million dollars have been recovered by efforts to secure proper payment of wage theft cases in Florida in just two and a half years.
• The Miami-Dade Ordinance fills a gap by handling cases that the Federal Department of Labor cannot. In a Miami Herald article, Will Garnitz, director of the Miami office of the U.S. Department of Labor states, “federal labor law only applies to those business connected directly or indirectly to interstate or foreign commerce. For those people who work in places where the federal law doesn’t apply, where are they supposed to go?” he asked.
• While millions of dollars have been recovered for Florida workers through the Wage and Hour Division of the U.S. Department of Labor in just the last 2 ½ years, it is important to note that not all workers who have experienced wage theft are covered under the agency’s jurisdiction nor do all workers come forth to report this abuse. We know from previous research and the organizations that serve different worker groups that the majority of workers who have experienced wage violations are not likely to report their complaints because they fear retaliation from their employers. They believe they will lose their jobs, and they fear harassment and discrimination, including threats of being reported for deportation.
• Questions about the cost of doing business in Florida and the risks of working in the state will also increase as more evidence of a climate of tolerance for wage theft and its impact on employees and honest employers becomes more widely known.
• These same employers are with impunity breaking laws that not only protect employees, but also are critical to maintaining a fairly competitive business environment so critical in a capitalist society. They also serve to account for tax revenues that many employers practicing wage theft on their employees are circumventing. This dishonest business model puts law abiding employers at a competitive disadvantage.

So, honest employers are hurt by wage theft. The state and local governments are hurt by wage theft. The taxpayers who are working people are hurt by wage theft. Economic development is hurt by wage theft. Can anyone explain to me why Florida Republicans and the Florida Retail Federation are fighting so hard to gut the laws that guarantee Florida employees will be paid for their work?

If you think this is outrageous, take action today.

Call 888-264-6154 and urge your senator to SAY NO TO SB 926

Help! My Employer Is Making Me Work Overtime Off The Books. What Do I Do?

This question from an AOL Jobs reader reflects an all too common situation that many hourly workers face:

Hello. I was reading an article 10 Tricks Employers Use To Cheat Workers Out Of Their Overtime. Here's my problem. My fiancée works at a restaurant, and she recently received a raise from $9/hr to $12/hr. But the owner asked her to take her overtime off the books. The first 2 weeks went by without a hitch, but over the past month, her OT has been short. The past week, she worked 10 hours OT, and received $90, which not only is less than the $18/hr that she is entitled, but he gave her less than her normal 12/hr. He claims that he can't afford to pay her overtime. What should we do? She's clocked in for every minute that she's there, and gets a little slip every time she punches out, but the owner still cuts her a check for usually 38 or 39 hrs, and gives her whatever he pleases in regard to her OT. What can we do?

Many employers cheat hourly employees out of overtime, and demanding they work "off book" is one way they do it. In this case, your fiancée has proof of her hours, so she has some options. You asked two different questions: "What can we do?" and "What should we do?" There may be two different answers, but my latest article at AOL Jobs discusses your options.

Does My Employer Have To Pay Me Even If I'm Illegal?

I received this question from a reader:

I'm in the process to get my green card. I worked for a guy for few weeks. He knew that I didn't have my EAD by that time. He doesn't want to pay me. I have been trying to get my payment over 2 weeks. Yesterday he sent me a text saying "go f**k yourself. if you contact me again I will notify the authorities" What can I do?

The quick answer is that, yes, your employer has to pay you even if you worked without the proper permit or are in the country illegally. If you are a foreign worker in the U.S., you have some hoops to jump through to work legally. Still, that doesn't excuse your employer from paying you for work performed. That being said, wage theft among undocumented workers is very common.

The United States Department of Labor has a program called "We Can Help" specifically directed at helping undocumented workers get paid. The Fair Labor Standards Act, which requires payment of minimum wage and overtime, applies to legal and illegal workers alike.

Undocumented workers, however, will not be able to recover back pay for time not actually worked or be reinstated to jobs if they sue for discrimination, unfair labor practices, or under other employment laws. While employers still can't discriminate based on race, age, sex, etc. the remedies undocumented workers can receive under many employment laws are limited.

Even though undocumented workers have legal rights, filing suit or complaining to the Department of Labor can be risky. There have been reported cases of undocumented workers who stood up to thieving employers only to face deportation. Employers who use this strategy put themselves at risk. Homeland Security is cracking down on employers who hire undocumented workers. Employers who break the law face sanctions including jail time. You might point this out to an employer who tries to blackmail you out of your pay.

Some Florida counties have wage theft laws that also protect undocumented workers. Employers can face double or triple damages if found to violate these wage theft laws. Many states and local governments have additional protections for employees whose employers don't pay wages when due.

If your employer is stealing your wages, contact the Department of Labor or an employment lawyer in your state to discuss your rights.

Top 6 Signs Your Unpaid Internship Should Be Paid

In honor of my daughter landing her first internship, I thought I'd go through once again an issue that comes up every summer. Many internships that are unpaid are exploiting young people for free labor instead of providing a meaningful learning experience.

If your internship is more about scut work and less about learning, you are probably an employee who needs to be paid, not an intern. Here are some top signs that your unpaid internship is really a job that should be paid: 

1. You aren't learning: An internship is supposed to provide training similar to that you would receive in a vocational school. In other words, you should be learning something helpful to your future career. If you're sorting mail, licking envelopes, filing, digging ditches or picking up the boss's dry cleaning, that work has to be paid. Internship assignments are supposed to build on each other to help you develop more skills, similar to the way each chapter of a textbook builds on the other.  
2. You have someone else's job: If you find out you're the temp covering for someone on maternity leave or you replaced a salaried guy they thought was making too much money, you have a job, not an internship.
3. You're on your own: Let's say they toss you in a room and say, "Here's the manual. Do this project on you own. Tell me when it's done." You are an employee.
4. The company benefits, not you: This is where most intern programs go seriously wrong. The company is supposed to be giving training that benefits you way more than it benefits them. If they can make money off what you're doing, or if you're saving them from having to pay another employee, you probably have to be paid. 
5. They promise a job at the end: The whole point of the internship is probably that you want them to hire you somewhere down the line. However, if you are guaranteed a job if you complete a specific training period, you're likely a trainee and must be paid. 
6. Where's my check?: If you go into a job thinking you're going to be paid and they announce only after you start that you're an unpaid intern, you're probably an employee. If you didn't understand before you accepted that there would be no pay while you're training, then you're probably entitled to be paid.

 The Department of Labor has been cracking down on illegal unpaid interships for several years. If your employer screws up, they may owe you wages, overtime, liquidated damages that equal the wages they failed to pay, and your attorney's fees. Here in South Florida, we also have some counties with wage theft ordinances that can even triple the amount you're owed. If your internship isn't what you thought it would be, have until the end of the statute of limitations (generally 2 years under the Fair Labor Standards Act) to wait to see if you get the job you thought you were earning. If you sue, you can sue on your own behalf and on behalf of all the other interns who didn't get paid.

Even if you sign a waiver saying you agree not to be paid, it won't hold up if the internship is really a job, so talk to an employment lawyer in your state about it.

Internships can get you college credits, contacts, community service hours for high school, and maybe even a paid job down the line. That's what the good ones are supposed to do for you. Just beware the ones that turn you into slave labor. Before you accept an internship, get a clear understanding of your job duties, whether you'll be paid, and what the employer expects of you.

If you aren't going to be doing something that puts you on your career path, turn it down. If you find out that it wasn't what you expected, get out of there.

Time is money. That's what they say in business. Make sure you get your money's worth out of your internship. If not, wouldn't you rather spend your summer taking classes, getting a paid job, or texting your friends?

If you have a terrific internship, great. I wish you the best. If not, talk to an employment lawyer about your rights.

Employees: Tell Your Representatives To Vote No On These Terrible Laws

Remember last year's viral campaign ad? The one that said, "Wake the f*#k up?" America woke up, sort of, and then went right back to sleep. So I'm telling everyone who is an employee, and everyone who depends on an employee for their food, clothing and shelter, to wake back up.

Workers are under attack in a major way right now. There are terrible laws pending that will gut the few protections employees have in America. Need I say which party is proposing them? Probably not. Here are some laws that you should tell your legislators to vote no on. Tell them today. I'm serious.

Anti-overtime law: It sounds so sweet. So appealing. Don't be fooled. It's a trick. The Working Families Flexibility Act is as anti-working-family as you can get.  The folks trying to push this one say that it will allow employees to "voluntarily" choose to take a comp day instead of being paid time and a half for overtime. These are the same folks that say forcing employees to sign arbitration agreements and jury trial waivers in consideration of continued employment constitutes "voluntary" agreement. Employers will shove "Voluntary Comp Time Agreements" in front of all new employees faster than you can say, "in the pocket of corporate lobbyists." If you want to give up all your overtime, then stay asleep. Otherwise, wake up!

Anti-prevailing wage laws: In Florida, Nevada, Tennessee, Michigan and Missouri, bills are pending that would gut prevailing wage laws. These are laws that require government contractors to pay a higher wage than the state or federal minimum wage in areas with higher costs of living. The bill in Florida would result in a 40% pay cut for some workers. Can you afford a 40% pay cut. No? Then wake up!

Right to work laws: This sounds like justice personified. Everyone should have the right to work, right? Wrong. It's one of those  Orwellian names that means the opposite of what it says. It doesn't change the at-will doctrine that exists in 49 states, saying you can be fired for any reason, including your boss's bad mood. Instead, it is intended to gut the unions. Legislation is pending in Congress and in many states. It's bad stuff. Read my article on this topic here.

Anti-paid sick leave: Efforts to deny local governments the right to pass ordinances requiring paid sick leave have popped up all over. A corporate lobbying group is behind it. Watch for these laws in your state, and call and write your legislators to vote no if your state is being targeted.

Pro wage-theft: I wrote a couple weeks ago about the efforts to legalize wage theft in Florida. Here's my post on this.

How idiotic are these laws? Well, they certainly aren't pro-family, are they? I wonder who will buy all the products and visit the travel destinations of the corporations who support anti-employee laws once American employees are bankrupted. I fear we may find out soon enough if we don't stand up and fight while we can.

These are just a few of the many anti-worker laws that have proliferated this year so far. I bet you can think of some more. If you hear of legislation that is pending in your state or in Congress that Americans need to wake up over, let me know in the comments section and I'll be glad to do my part to spread the word.

Florida Companies, Republicans Try to Make Wage Theft Legal, Again

The Florida Retail Federation hopes the third time's the charm in trying to make wage theft legal. They tried two other times to strike down the wage theft ordinances that are popping up around the state to curtail unscrupulous employers who pocket employee wages for their own use. This time, they've enlisted Florida Republican legislators to help with a truly Orwellian scheme.

Rep. Tom Goodson, a Republican legislator from Titusville, has filed a bill that purports to help employees fight wage theft. The problem is that, unlike county ordinances that provide for double or triple damages against thieving employers, this bill says employees get exactly what they are owed. The county ordinances are (mostly) preempted and counties are prohibited from enacting new ordinances. This is supposed to help employees how exactly?

Let's see. Scumbag Employer, Inc. decides to hire low wage employees and fire them right before their paycheck is due. They don't pay the employees. The employees have to sue. Under this law, the employees have to come out of pocket for several hundred dollars for the filing fee to sue. In the county systems, they file for free. These are folks living paycheck to paycheck. That's probably a week's wages for them. Then they have to face court hearings, court reporter fees, maybe some depositions and discovery. Under the county systems, they have one hearing and get a ruling.

If an employee manages to survive the wait, they might get their wages paid after about a year. Under the county systems, it's probably a few months. So Scumbag Employer, Inc. writes a check after a judgment issues, but in the meantime they got to use the employee's wages all that time. Plus, most employees will give up and not bother. They can't afford to fight. A big win for Scumbag Employer, Inc., which will now have zero incentive to pay employees when wages are due.

I still don't understand how this benefits legitimate businesses. How can they compete with Scumbag Employer, Inc.'s slave labor business model? Instead of supporting the county efforts to shut down these free labor mills, corporations and their organizations are crying foul. Can someone explain this to me?

Oh, sure, employees can still complain to the Department of Labor and try to get help.  The problem is, they are overworked and overwhelmed. Florida wage theft is rampant, and employees need laws with real teeth. If employees stealing sodas worth less than $2.00 can be arrested, why shouldn't employers who steal hundreds or thousands of dollars from employees land in prison? At least, they should be penalized.

The Miami Herald came out against this blatant attempt to help wage pirates steal their employees' money. If you aren't convinced by me, read their well-reasoned editorial. Hopefully, Florida legislators will not fall for this sneaky trick to help thieves who are stealing money belonging to their constituents. As to legislators who support this measure, I hope the voters in their districts who are also employees (i.e., most of them) will vote their wallets and send these pro-theft lawmakers packing.

Broward Joins Miami-Dade In Protecting Employees Against Wage Theft

Miami-Dade County's wage theft ordinance has been in effect since 2010. It was the first such ordinance in the nation. This month, Broward County finally joins them in the fight against unscrupulous employers who steal employee wages. Alachua County is currently considering a similar ordinance.

The sad fact is that most states let employers get away with allowing people to work, then failing to pay them. Why businesses tend to fight these laws like cornered rats is beyond me. Isn't using free labor the very definition of an unfair trade practice? How can legitimate employers fairly compete with unscrupulous companies who use slave labor?

Not that the Miami-Dade wage theft system is perfect. I wrote previously about some problems we had with hearings. We have one case we won months ago, yet haven't received our judgment. Several other cases have languished for months without being set for hearing. Still, it's probably better than trying to file a lawsuit in a system that's glutted with foreclosures.

Rant over. There are some key differences between the two ordinances. Here's the scoop:

Wages due date: Both counties now make wages due within 14 days after services were performed unless the employer has established a consistent pay schedule that is different.

Demand letter: Broward County requires a demand letter within 60 days of the date the wages were due giving the amount of wages due, the actual or estimated work dates and hours, and notifying the employer the wages are past due. Dade has no such requirement.

Deadline for claim: Both counties have deadlines of one year from the last date the employee performed work for the employer that wasn't paid.

Supporting documentation: Dade's ordinance requires all supporting documentation to be attached to the complaint. Broward's just requires the complainant to set forth the facts with sufficient specificity to allow the respondent and the County to understand the basis for the claim.

Service of complaint: Dade serves the complaint by certified mail. Broward will apparently use the Sheriff or a process server.

Hearing notice: Dade's ordinance says notices are served by certified mail, which is a real problem. By the time of the hearing, the receipts don't arrive and the employees waste a day they had to take off from work before they find out the hearing is canceled. Dade also says that Fla. R. Civ. P. 1.080 can be used for service. That rule used to say service was by snail mail, but now it's by email. Yet Dade doesn't use that method, instead making taxpayers incur the expense of additional certified mail costs. Broward's refers to the Florida Rules of Civil Procedure for service without specifying which rule. Presumably, regular first class mail, or even better, email, will be used for notices once the employer is properly served with the complaint.

Answer: Answers are due in both counties within 20 days after service of the complaint.

Hearing officer appointed: In Dade, a hearing is supposed to be appointed within 15 days after the complaint is served. In Broward, it's 30 days. Neither county has a deadline by which the hearing must be conducted. That's a giant flaw.

Conciliation: Both ordinances encourage the parties to reach an agreement and say the counties will work to help resolve the dispute. The reality in Dade has been, so far, that conciliation pretty much concists of, "Hello, employer. Do you want to pay these wages? No? Ok." Hopefully a more formal mediation program will be set up to try to get the parties to settle more quickly and reduce backlog.

Lawsuit: Both counties prohibit aggrieved employees from suing for their wages. If they do, the counties will dismiss their wage theft complaints. That just sucks, especially where the wage theft program is so bogged down.

Damages: In Dade, it's three times the amount of wages stolen. In Broward, it's twice the amount.

Attorney's fees: In Dade, employees cannot recover their attorney's fees incurred. In Broward, they can. However, Broward also has a provision that employees bringing frivolous claims will have to pay administrative fees and the attorney's fees and costs of the employer.

Employee defined: An employee in both counties is anyone who performs work within the geographic boundaries of the county while being employed by an employer. It doesn't include bona fide independent contractors, but most people classified as contractors are misclassified and should be considered employees.

Employer defined: Both counties exclude the U.S. government, the State of Florida, and any Indian Tribe. Dade excludes itself, but Broward doesn't.

Hopefully, Broward will learn from Dade's mistakes and administrate their program a little better. Dade still needs more resources and a more efficient system in order to have their program become a model for the nation.

Congratulations to both Miami-Dade and Broward for having the guts to stand up to thieving employers!

Ground-Breaking Wage Theft Program Needs Modification

I attended what was supposed to be my first hearing under Miami-Dade County's ground-breaking wage theft ordinance yesterday. I say it was supposed to be my first hearing, because it didn't actually happen for me, nor did it happen for quite a few of the taxpayers who attended seeking justice from the County.

Here's how the County says things are supposed to work:

If a settlement between you and the employer cannot be reached, SBD will attempt to serve the employer notice of the complaint via certified mail. This notice allows the employer to respond to the claim within 21 days of receipt. You also have the option of retaining the services of a court appointed process server to ensure delivery of notice, if certified mail sent by SBD is undeliverable.

In my case, the employer definitely got notice of the claim. So far so good. Here's what's supposed to be next:

Administrative Hearing Process

If the employer does not respond within the 21 days and SBD has confirmation of receipt of the notice, either through U.S. Postal Service or process server, we will schedule the case for the next available hearing date. (Upon request by either party, a one-time continuance of the case may be granted and scheduled for the next calendared administrative hearing.)

We had a hearing set before and the employer got a continuance, thus proving they got notice. More good news, but it caused a month delay.

We finally got the new notice and we double-checked the day before to make sure the hearing was going on as planned. I'm wearing a cast boot due to a rip in a tendon, which we advised them of, and asked if the hearing was canceled or continued that we be notified before I had to hoof it to Dade, park in downtown Miami, and walk the long way through the county building. We got a written confirmation and no cancellation notice. We felt pretty good.

Here's what should have happened:

At the time of the hearing, both the claimant and the employer will have the opportunity to present their cases. If the Hearing Officer determines that a wage violation has occurred, he or she may order the employer to pay liquidated damages to the claimant of up to three times (3x) the amount of wages claimed, as well as payment of administrative costs associated with conducting the hearing to the County payable to the Board of County Commissioners.

Final Orders will be sent to all parties. A prevailing claimant may record a final order or seek post-judgment release through the Miami-Dade civil court system. At this stage, the County’s (SBD) administrative responsibilities at this point have been fulfilled and the file will be closed.

None of the rest happened. Instead, we got to the hearing, waited over an hour, only to find out that the County sent the employer another certified letter, this time with the second hearing notice. The rules say nothing about needing a second certified receipt. Indeed, in the court system regular mail is considered perfectly good service for any notices once the original complaint is served. Better yet, the courts in Florida have gone mostly to email service, which is free.

The result: employers have figured out that the ordinance is really easy to circumvent. All they have to do is refuse to sign the certified mail notice. Their former employee, whose wages they stole, has to take off work, show up, wait hours, pay $12 or more for parking, only to be told they have to start over.

THE SOLUTION IS EASY

This was incredibly disappointing to me, because I've been such a fan of Miami-Dade's ordinance and have encouraged other counties to adopt similar programs. This is a problem that can be solved easily.

1. Any service after the initial service of the complaint should be by first class mail or email. It's way more cost-effective, so this change alone will save taxpayers thousands of dollars in wasted postage.

2. If, for any reason, the hearing is canceled or continued, participants should be told as soon as possible. If one party didn't get notice (such as the first class letter comes back returned or the email bounces) then let the other party know the day before. If the County doesn't know until the last minute, tell the parties who show up as soon as they arrive. The hard-working staff and hearing officer were clearly frustrated. They had been working from 9 a.m. until past 5 p.m. But at least 1/4 of the time I was there was spent calling people up who had waited over an hour only to be told the hearing wasn't going to happen. The hearings would go much faster (and the taxpayer/voters who show up wouldn't be as upset) if the bad news could be delivered as soon as they get there. The hearing officer wouldn't have to explain and apologize for 5 - 10 minutes for each person. Instead, the staff could tell people when they sign in and not waste valuable hearing time.

3. Use the savings in certified mail to hire more staff. The people working for Miami-Dade County trying to get thieving companies to pay their employees' hard-earned wages are clearly trying, but they were frazzled. They need help. Hire someone to handle sending the notices, confirming with the parties, and notifying parties of any changes or cancellations.

With these minor tweaks, the Miami-Dade County Wage Theft Program should be able to go more smoothly (and alienate fewer voters - is anyone on the Commission listening?)

Florida Retail Federation Supports Wage Theft, Loses Argument

If big corporations wonder why average Americans think they’re pond scum, they need look no further than the recent efforts of the Florida Retail Federation in favor of allowing companies to steal your wages. That’s right. The Florida Retail Federation has made two failed attempts now to keep wage theft legal. Charming, especially considering that wage theft is rampant in Florida.

Here’s how it all started. Miami-Dade County was the first county in the nation to pass a law against companies who steal employee wages. Here’s what Miami says about the ordinance:

The Wage Theft Ordinance policy is to eliminate and prevent wage theft. Eliminating the underpayment or nonpayment of wages earned by persons working in the County serves the public purpose by promoting economic security and dignity for those working in the County; by promoting business and economic development through the elimination of unfair economic competition by unscrupulous businesses that do not pay or that underpay their employees; and to relieve the burden on the public that subsidizes unscrupulous employers whose employees are forced to rely on public assistance because of unpaid or underpaid wages. An employer who is found to have violated the Wage Theft Ordinance by unlawfully failing to pay any portion of wages due will have to pay back-pay and liquidated damages to the employee in addition to administrative fees and hearing costs.

Sounds great, right? I mean, nobody supports employers who steal wages, do they? Wrong-o. In steps the Florida Retail Federation. First, they try to get the GOP-run legislature to pass a law prohibiting counties and cities from passing wage theft ordinances. It actually passed the Florida House, but the Senate had better sense than to come out in favor of having their constituents’ wages stolen.

What’s a big-industry group to do? Sue, of course. Fortunately, a local judge tossed the suit, saying counties have the ability to prohibit wage theft if they want.

The sad fact is that many employers, at least in my neck of the woods, are failing to pay their employees. Some employees are led on for months as the employer gets further and further behind, with promises that they will catch up. Some are simply never paid their last few checks. Some don’t get their last check when they leave. It’s theft, plain and simple. Big companies who provide products and services and don’t get paid cry theft and fraud and bring in the lawyers. If employees leave with one extra pen or paperclip, the police show up at their homes. Why shouldn’t their employees be able to do the same when they aren’t paid?

Wage theft should be a criminal offense nationwide. If sleazy employers aren’t scared of the Department of Labor, maybe they’ll pay up when the local sheriff comes knocking.

Donna’s Employment Law Predictions for 2012

I’m getting out my iPad’s magic 8-ball app and looking into the future. I see a big year for employment law issues in 2012. Here’s where I think we’ll see lots of litigation or legislation:

Military: With loads of returning military members, Congress will scramble to plug any new loopholes that keep military service people from being protected in their jobs. Look for lots of USERRA litigation when employers realize they don’t want to let the person who has been in the position go when Johnny comes marching home. Without a doubt.

Sexual harassment: Now that sexual harassment has become a hot-button political issue again, watch for attempts to weaken sexual harassment protections. Also watch the federal courts continue to erode what few protections employees have left. Will the Democrats have the will and the ability to stop sexual harassment from becoming legal? Very doubtful.

Retaliation: Retaliation has been hot, hot, hot, and it will continue to be so. Watch for attempts to weaken whistleblower laws, both legislative and judicial. While the courts have consistently enforced retaliation laws, they’ve been reluctant to rule in favor of employees in any situations where there was doubt about the legislative intent. For instance, the Fair Labor Standards Act doesn’t expressly prohibit employers from discriminating against potential employees who have sued former employers for overtime or unpaid wages. Watch for more courts to hold that the word “employees” doesn’t mean “potential employees.” Will there be a public outcry when potential employers refuse to hire people who demanded they be paid? My sources say no.

Bullying: No state will have the political willpower to pass anti-bullying laws, despite the growing evidence that bullying is more traumatic for employees than sexual harassment. It is decidedly so.

Tax relief: The Civil Rights Tax Relief Act will stall yet again, meaning that employment law settlements will continue to be taxed where personal injury cases aren’t. Try again later.

Unemployed: The unemployed will start to get some rights. More states will pass laws protecting the unemployed against discrimination. Employers will get more creative in denying them jobs by using credit checks and other excuses. Eventually, Congress will have to take action, but gridlock is likely in this election year. Outlook not so good.

Wage theft: As more employers decide the way to save money is to fail to pay employees or former employees, wage theft laws will begin to spread across the country. Maybe seeing a few deadbeat employers hauled off in handcuffs will be good for the economy. As I see it, yes.

Noncompete: Desperate employers trying to prevent employees from skipping to competitors who will treat them better and pay more money are using noncompete agreements as virtual indentured servitude. You’d think that elected officials would look at noncompete abuse and side with their constituents, but instead the trend is to give employers even more right to restrict competition. I predict more states will beef up employers’ ability to enforce noncompetes. The good news is that employees with resources will be using antitrust laws and the lack of legitimate interests to enforce to fight back. Noncompetes will continue to be the weapon of choice to bully former employees. Without a doubt.

Confidentiality and trade secrets: Agreements where employees promise to keep employer confidential and trade secret information confidential will go hand in hand with noncompetes as a weapon against former employees. Employees who never signed noncompetes will be told by former employers that working for a competitor would inevitable result in disclosure of confidential information. Will judges side with employees who resist indentured servitude? Don’t count on it.

Employees strike back: Working people and the unemployed will eventually wake up to what is happening to them. They’ll start standing up for their rights and demanding that their elected representatives work for them to restore their right to quit and work somewhere else, to get paid and not have a potential employer hold that against them, and that they be able to work free from sexual harassment. Will they do it in time for the November election? Ask again later.