Current Events

Monday, March 14, 2016

Unpaid Overtime, Wage and Hour Violations and Racial Discrimination

Employees sometimes find themselves in work situations where they work long hours in excess of 40 hours a week without being paid overtime because the employer misclassified their job description under the Fair Labor Standards Act to avoid paying them overtime payments. This sometimes occurs along with racial discrimination. 

The Fair Labor Standards Act (FLSA) establishes the standards for an employee to be eligible for overtime pay and defines which employees are entitled to overtime pay. New Jersey and other individual states may have their own set of overtime pay regulations in addition to the FLSA. Sometimes employers misclassify workers by giving them bogus job titles ( such as “manager” when they are not really managing two or more workers as defined by the statute) or job descriptions to avoid paying them overtime pay which the workers are entitled to by law. Racial discrimination may be a contributing factor combining with the misclassification of workers to avoid paying them overtime.
Under this act, certain workers, which the act classifies as “non-exempt”employees must receive overtime pay for hours worked over 40 hours in a single workweek at a rate not less than one and  one-half (150%) their regular rate of pay.  Contrary to what some workers believe, they are not entitled to receive overtime wages for work performed on weekends, unless overtime is worked on such days.

The FLSA classifies employees as either “exempt” or “non-exempt”.  The difference between between being “exempt” or “non-exempt” is in the worker's eligibility for overtime pay.  An exempt worker is not entitled to overtime benefits but a non-exempt worker is entitled receive such overtime pay. Employees may work at a job for years not realizing they have been missclassified as being exempt when they should be non-exempt.  Just because an employer tells you are not eligible for overtime pay and that you are categorized as “exempt” does not mean that you are not entitled to receive such benefits.  Many employers will purposely classify entire large groups of workers as “exempt” to avoid paying them overtime wages, although according to the law, they deserve payment for hours spent working overtime.

According to New Jersey adoption of the federal statute, employees exempt from overtime are: 

“Any individual employed in a bona fide executive, administrative, professional or outside sales capacity shall be exempt from the overtime requirements of N.J.A.C. 12:56-6.1.

Just because an employer gives you bogus job title of executive,  administrative,  professional, outside sales person, or manager does not mean that you are really exempt from being paid overtime benefits. The New Jersey statute contains many subparts for each of the aforementioned exempt job classifications, which define whether such  job classification is actually true to fulfill the purposes of the Act,  or just an attempt by the employer to avoid paying overtime. The New Jersey version of the FLSA states: 

§ 541.2 Job titles insufficient.

A job title alone is insufficient to establish the exempt status of an employee. The exempt or nonexempt status of any particular employee must be determined on the basis of whether the employee's salary and duties meet the requirements of the regulations in this part.

It is important to remember that your job title does not determine your status as an exempt employee. In order for an exemption to apply, your specific job duties and salary must meet the FLSA requirements.

In Subpart B, as to “Executive Employees” who are exempt, the New Jersey statute states:

§ 541.100 General rule for executive employees.

(a) The term “employee employed in a bona fide executive capacity” in section 13(a)(1) of the Act shall mean any employee:

(1) Compensated on a salary basis at a rate of not less than $455 per week (or $380 per week, if employed in American Samoa by employers other than the Federal Government), exclusive of board, lodging or other facilities;

(2) Whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof;

(3) Who customarily and regularly directs the work of two or more other employees; and

(4) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.

Further, to qualify as an exempt executive under §541.100, the employee must customarily and regularly direct the work of two or more other employees. The phrase “two or more other employees” means two full-time employees or their equivalent. One full-time and two half-time employees, for example, are equivalent to two full-time employees. Four half-time employees are also equivalent. An employee who merely assists the manager of a particular department and supervises two or more employees only in the actual manager's absence does not meet this requirement.

In Subpart C, as to “Administrative Employees” who are exempt, the New Jersey statute states in part: 

§ 541.200 General rule for administrative employees.

(a) The term “employee employed in a bona fide administrative capacity” in section 13(a)(1) of the Act shall mean any employee:

(1) Compensated on a salary or fee basis at a rate of not less than $455 per week .....exclusive of board, lodging or other facilities;

(2) Whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and

(3) Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

Just because the boss calls you a “Manager” is not enough to make you exempt from being paid overtime. The same statute lists some of the general activities that define a manager under the statute, which are generally interpreted as the worker having discretion and independent authority to carry out tasks for the business of the employer:

§ 541.102 Management.
Generally, “Management” includes, but is not limited to, activities such as interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing the work of employees; maintaining production or sales records for use in supervision or control; appraising employees' productivity and efficiency for the purpose of recommending promotions or other changes in status; handling employee complaints and grievances; disciplining employees; planning the work; determining the techniques to be used; apportioning the work among the employees; determining the type of materials, supplies, machinery, equipment or tools to be used or merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety and security of the employees or the property; planning and controlling the budget; and monitoring or implementing legal compliance measures.

Racial animosity of the employer may combine with a mis-classification as “exempt’. Last week, an African American former employee in California charged the owner and operator of two nationwide chain restaurants in a class action lawsuit. The violations presented to the court included:

• Failing to pay overtime wages
• Misclassification  employees as overtime exempt
• Permitting a racially charged environment

In this suit a former paralegal for the company, has accused businesses  of giving her the title of “manager of franchise compliance” in order to avoid paying her the overtime wages she was rightfully due. She states that she never functioned as a manager, having no say in hiring, firing or making any other personnel decisions, and that the title was always in name only, contrived by her superiors to designate her as overtime exempt.

She also accuses the organization of holding black employees to standards different from those of their white co-workers, and pitting these same black employees against one another.

According to the worker’s complaint, the African American employees were treated unfairly, being held to a higher standard than their non-African American counterparts. She also accused the company of subjecting African American employees to harassment and discrimination by other employees who resented having to correct errors discovered by her and other African American employees.

Before being fired, she had worked for the restaurant chain, and before that for its predecessor corporation, for more than 22 years. According to her lawsuit, her employment was terminated as a direct result of her complaint about unfair treatment by a co-worker.

While her superiors claim that she was guilty of withholding information about a franchise deal, both sides agree that she was publically chastised about the matter at an interdepartmental meeting in front of many other employees. It was when she complained about this public humiliation that she was placed on leave and eventually fired.

Her lawsuit is a representative action, filed on behalf of any current and former employees who may have experienced racial discrimination while working at the company or who may have been misclassified as exempt from overtime compensation. She seeks damages for racial discrimination and violations of wage and labor laws, according to the complaint.

The Federal and New Jersey overtime laws are complex as to whether a certain employee is entitled to receive overtime pay. If you feel you have been terminated from your job or your employer violated your legal rights, or that you have been harassed or retaliated against for asserting your rights, it is essential for you to contact an experienced, competent and compassionate employment discrimination attorney who will be aggressive about enforcing your rights.

Every situation is fact specific, and if you are a person who believes you may be the victim of the employer's illegal acts, discrimination or if you were terminated and believe that retaliation for asserting your rights may have been a factor, please contact Hope A. Lang, Attorney at Law, today for a free consultation.

Archived Posts


© 2017 Hope A. Lang, Attorney at Law | Disclaimer
466 Kinderkamack Road , Oradell , NJ 07649
| Phone: 201-599-9600

Family Law | Employment/Civil Rights Law | School Law and Educational Rights | Disability Law | Wills and Estate Planning | Municipal Court Appearances | Divorce Mediation Services | General Practice | Employee Performance Evaluations | Family Law Practice | Employment Law Practice

Amicus Creative