Wage and Hour Claims
“To fulfill a dream, to be allowed to sweat over lonely labor, to be given a chance to create, is the meat and potatoes of life. The money is the gravy.” — Bette Davis The wage and hour laws are straightforward, but many employers are still trying to avoid taking care of their legal responsibilities to their employees. Violations of the wage and hour laws such as the Fair Labor Standards Act (FLSA) are all too common. The following are some of the most common violations by employers:
- Failing to pay overtime – This is one of the most common wage violations by employers. In Kentucky, employees are entitled to earn overtime (time-and-a-half) if they work more than 40 hours in a workweek. Not all employees are entitled to earn overtime for extra hours. While hourly, nonexempt employees have a right to overtime, other categories of employees are exempt and do not have that right. The most common exempt employees are outside salespeople and “white-collar” employees who do professional, managerial, and high-level administrative work.
- Exemption Misclassification – Employers may attempt to reclassify a worker as exempt in order to avoid paying overtime. Just because your employer calls you a manager does not necessarily mean that your employer can avoid paying you overtime. Unless your employer can prove that you fit into one of these exemptions, you are entitled to receive overtime. The difference between an exempt and non-exempt employee is the nature of their job function and how they are compensated. An exempt employee is paid to get the job done regardless of how many hours they work. They are not required to take breaks. Non-exempt employees are entitled to overtime pay at a rate of 1.5 times their hourly rate, for time worked over 40 hours in a workweek. They are also entitled to take meal and rest breaks.
- Independent contractor misclassification – If the employer has control over the conditions of the employment relationship, such as where and when the work is performed, this probably constitutes an employment relationship, not an independent contractor arrangement.
- Illegal Deductions – An employer cannot deduct from the final pay any damage to property unless the employer can prove willful or intentional disregard. The employer must also have a written authorization from the employee stating that they understand that such deductions can be made.
- Travel Time – The employer fails to pay hours spent in travel as hours worked. Time spent traveling during normal work hours is considered compensable work time; time spent in home-to-work travel by an employee in an employer-provided vehicle, or in activities performed by an employee that are incidental to the use of the vehicle for commuting, generally is not “hours worked” and, therefore, does not have to be compensated.
- Training Prior To Hire – If paperwork and/or training are mandatory, the employee should be paid for the same.
- Unpaid Wages – Employers may fail to pay for all time worked or fail to provide a final paycheck and compensation for vacation time. Point blank, if the employer allows an employee to work, the employee must be paid. Any employee who leaves or is discharged from his/her employment must be paid all wages or salary earned no later than the next normal pay period following the date of termination or 14 days following such date, whichever is later. As to vacation pay, in Kentucky, if an employer chooses to provide such benefits, it must comply with the terms of its established policy. If that policy is that the employer does not pay accrued vacation time at termination or unless certain conditions are met, that is legal. It is not mandatory for an employer to pay accrued vacation leave upon termination from employment if the employer’s established policy is silent on the issue.