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Top Overtime Attorney Reply: What Should I Do If My Boss Won’t Pay Overtime?

On Behalf of | May 5, 2014 | Wage: Minimum Wage, Wage: Overtime, Wage: Tipped Employees |

Best Ohio Overtime Wage Lawyer Answer: Can I sue my boss for not paying overtime? Who is responsible for paying me overtime wages? What should I do if my paycheck is wrong? How do I find the best wage and hour attorney in Ohio?

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The best answers to these questions comes from the recent case of Irizarry v. Catsimatidis out of the Second District Court of Appeals. This case involved a collective action of grocery store workers that filed an overtime lawsuit against Gristede’s Foods, Inc., which employed approximately 1,700 employees at about 30 grocery store locations. After the trial court granted summary judgment finding that there were overtime violations, Gristede’s opted to settled with the group of employees and pay them the back wages that were owed in a series of scheduled payments. But, following the settlement, Gristede’s breached the settlement agreement and did not make the payments. So, the parties headed back to court.

This time, however, the employees asked that John Catsimatidis, the chairman and CEO of Gristede’s, be held personally liable under the Fair Labor Standards Act (“FLSA”).

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As CEO, Catsimatidis was not involved in the day-to-day operations at each location. He did not hire or fire employees below executive management levels. He did not set schedules. Indeed, he did not have regular interaction with most employees in the collective action and actually had not met many. He ruled from the ivory tower.

Nonetheless, the trial court decided that Catsimatidis should be considered an “employer” as defined by the FLSA because he: (1) “hired managerial employees;” (2) “signed all paychecks to the class members;” (3) had the “power to close or sell Gristede’s stores;” (4) “routinely review[ed] financial reports;” (5) “preside[d] over the day to day operations of the company;” and (6) “had operational control.” Based on these facts, the district court hed that for the “purposes of applying the total circumstances test, it does not matter that Mr. Catsimatidis has delegated powers to others… What is critical is that Mr. Catsimatidis has those powers to delegate…. There is no area of Gristede’s which is not subject to his control, whether or not he chooses to exercise it.”

As the employees won the argument at the trial court level, Catsimatidis appealed to the Second District, which affirmed the district court’s decision. In addition to the trial court’s observations, the court of appeals added that Catsimatidis (1) “was active in running Gristede’s, including [having] contact with individual stores, employees, vendors, and customers;” (2) signed employee paychecks; (3) was ultimately responsible for the employees’ wages and, and (3) supervised managerial personnel.

The Second District Court of Appeals specifically held:

Nothing in …the FLSA itself, requires an individual to have been personally complicit in FLSA violations; the broad remedial purposes behind the statute counsel against such a requirement. The statute provides an empty guarantee absent a financial incentive for individuals with control, even in the form of delegated authority, to comply with the law, and courts have continually emphasized the extraordinarily generous interpretation the statute is to be given. Nor is “only evidence indicating [an individual’s] direct control over the [plaintiff employees] [to] be considered.” Instead, “evidence showing [an individual’s] authority over management, supervision, and oversight of [a company’s] affairs in general” is relevant to “the totality of the circumstances in determining [the individual’s] operational control of [the company’s] employment of [the plaintiff employees].” A person exercises operational control over employees if his or her role within the company, and the decisions it entails, directly affect the nature or conditions of the employees’ employment. Although this does not mean that the individual “employer” must be responsible for managing plaintiff employees – or, indeed, that he or she must have directly come into contact with the plaintiffs, their workplaces, or their schedules – the relationship between the individual’s operational function and the plaintiffs’ employment must be closer in degree than simple but-for causation. …

[Employer] status does not require continuous monitoring of employees, looking over their shoulders at all times, or any sort of absolute control of one’s employees. Control may be restricted, or exercised only occasionally, without removing the employment relationship from the protections of the FLSA, since such limitations on control do not diminish the significance of its existence.

This case is critical to avoid the threats of defendant employers to shut down the business or to close and reopen under a new business entity. It also help avoid a bunch of bosses pointing the finger to someone else and forcing a plaintiff employee to figure out who is specifically responsible for making the decision to not pay overtime, improperly misclassify employees as independent contractors, wrongfully steal wages, not pay minimum wage. This decision puts the liability directly on the shoulders of the bosses that have responsibility and control – regardless of whether those bosses exercise or delegate such powers.

If you believe that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws or you are an nonexempt employee that has been misclassified as exempt or independent contractor, contact the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. Or, maybe you are being misclassified as an independent contractor. The wage and hour lawyers at Spitz, The Employee’s Law Firm will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.


The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.



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