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What Should I Do If My Job Is Not Paying Me? Best Lawyer Reply!

| Sep 9, 2015 | minimum wage violation, overtime time violation, Retaliation, Wrongful Termination |

Best Ohio Wage Theft Attorney Answer: Can my employer fire me because I complain about a lack of overtime pay? What kind of lawyer do I need to sue my employer because I haven’t been paid me in two months? What can I do if I think I’m getting cheated out of minimum wage?

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As our wage and hour attorneys frequently blog about, the Fair Labor Standards Act (“FLSA“) requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 an hour, plus time and one-half their regularly hourly rates for all hours worked over 40 in a given workweek. (See Can I Sue My Boss Individually For Not Paying Me For Overtime? I Need A Wage Lawyer!; How Far Back In Time Can I Sue My Employer For Overtime Violations? I Need The Best Wage Theft Lawyer!; Overtime Trick: What Should I Do If My Boss Says I Work For Two Companies? Top Wage and Hour Lawyer Reply: As A Salaried Employee, Am I Exempt From Overtime Pay? ; Should I Be Paid Overtime Even If I Have The Title Manger? Top Ohio Wage and Hour Lawyer Reply). Additionally, the FLSA critically makes it unlawful for any employer to terminate or in any other manner discriminate against an employee because the employee has filed a complaint or instituted an action alleging FLSA violations.

As wage and hour lawyers, we frequently encounter employees who have been misclassified by their employer as exempt and, as such, have been denied their rightful minimum wage or overtime pay. The most commonly encountered exemptions in FLSA wage and hour cases are the professional, administrative, and executive exemptions, each of which requires a fact intensive inquiry into the actual job duties of the employee.

For example, it isn’t enough that an employee be labeled as an executive to be covered by the executive exemption. Rather, in order to fall within the FLSA’s executive exemption for overtime, the employee must be primarily engaged in management, either of the business or one of its divisions, must direct the work of two or more employees, and must have the ability to hire or fire employees, or at least must have significant input into hiring and firing.

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To fall within the FLSA’s professional exemption for overtime, the employee’s work must be primarily intellectual in nature, requiring an advanced knowledge in a field of science or learning, which is typically the result of a long course of study. The FLSA’s administrative exemption applies when the employee’s principal duties are office or non-manual work, which is directly related to the management of the business and which involves the exercise of discretion and independent judgment. Simply stated, the law does really care about the name of your position at work, it only cares about what you actually do at work. This makes sense in that if the law only cared about your job title, every employer could just promote every worker to a title that had the term executive or professional in the titled, such as executive fry cook or professional dishwasher. Luckily, your boss calling you president of floor mopping does not transform you into an exempt employee for overtime wage claims.

In addition to the above conditions, for an employee to fall under the professional, administrative, or executive exemptions to the FLSA, the employee must be paid on a salary or fee basis of at least $455 per week. A recent case in the U.S. District Court for the Northern District of Alabama makes clear that when an employee has not been paid anything during the time frame in question an employer has no business defending upon the FLSA’s executive exemption to avoid payment of overtime wages. The same rationale must apply to the FLSA’s administrative and professional exemptions.

In Traweek v. Global Solutions, Michael Traweek alleged, among other things, that his former employer violated the FLSA’s minimum wage requirements by failing to pay him for a number of weeks and by retaliating against him when he complained of this failure. Global Solutions argued that it terminated Traweek prior to the weeks in question and that, even if it hadn’t, Traweek’s former position with it was exempt from the FLSA by virtue of the executive exemption.

According to Global Solutions, it fired Traweek on January 17, 2014. Traweek, however, contended that he was never aware of the alleged termination and that he continued working for Global Solutions through mid-February of that same year. Neither party disputed that Global Solutions did not pay Traweek between mid-January and mid-February. The only question was whether Traweek was still employed during that period.

The Court rightly pointed out that if Traweek was employed by Global Solutions for that nearly one month period, Global Solutions couldn’t possibly defend on the basis of the Executive exemption, as the exemption requires as a starting point that the employee have been paid at least $455 a week:

The Court need not spend much time at this stage addressing the various requirements of the executive/highly compensated employee exemptions, as Defendants concede that they did not pay Traweek any compensation for the disputed final month of Traweek’s employment. The most recent FLSA regulations make clear that, to qualify for either of the exemptions at issue, an employee must receive his or her salary payments on a regular, predetermined basis. See 29 C.F.R. § 541.602(a) (stating that an employee will be considered to be paid on “a salary basis” only if “the employee regularly receives each pay period . . . a predetermined amount constituting all or part of the employee’s compensation” (emphasis added)); see also id. (stating that, “subject to the exemptions provided in paragraph (b) of this section, an exempt employee must receive the full salary for any week in which the employee performs any work without regard to the number of days or hours worked” (emphasis added)). While ceasing to pay an employee’s salary on a regular basis does not necessarily mean that employee loses his or her exemption, a Defendant is required to point to a specific exception under 29 C.F.R. § 541.602(b) that excuses the failure to regularly pay a predetermined amount of compensation, or in the alternative, provide evidence that the reduction in pay was not occasioned by a change in the quality or quantity of work the plaintiff-employee performed. See Orton v. Johnny’s Lunch Franchise, LLC, 668 F.3d 843, 847-48 (6th Cir. 2012). In other words, it is insufficient for an employer-defendant to merely assert that, had the plaintiff-employee been receiving the compensation he or she was entitled to pursuant to an employment agreement, that employee would qualify for an exemption.

Simply put, Defendants do not dispute that Traweek received no pay whatsoever from January 17, 2014 to February 14, 2014, as they argue only that Traweek was no longer an employee during that time frame. Assuming that Traweek was employed during the interval in question, Defendants have failed to identify a specific basis, such as the exceptions put forth 29 C.F.R. § 541.602(b), excusing their failure to regularly pay Traweek his “predetermined amount” of salary. Thus, a material issue of genuine fact exists concerning whether Traweek lost his exemption from the FLSA’s minimum wage requirements during the disputed final month of his employment at Global.

Traweek is also important in its assessment of FLSA retaliation claims. Traweek alleged that he emailed Global Solutions in late-January, after Global stopped paying him, complaining of the lack of pay, and that the email is what led to his being forced to resign from Global. This is what employment law lawyers call a constructive discharge. While there was a factual dispute about the actual date of Traweek’s termination, the court determined that an email complaining of a stoppage in pay constitutes “protected activity” under the FLSA. The court made clear that while an email may not be of the same character as a lawsuit or other formal grievance, an email complaint is enough to trigger the FLSA’s anti-retaliation protections, and if Traweek’s email precipitated the firing, Traweek had a valid FLSA retaliation claim:

Traweek also brings a retaliation claim under the FLSA, asserting that he was constructively terminated after complaining about not receiving any compensation following January 17, 2014. Section 215(a) of the FLSA “protects persons against retaliation for asserting their rights under the statute.” Wolf v. Coca-Cola Co., 200 F.3d 1337, 1343 (11th Cir. 2000). A plaintiff establishes a prima facie case of retaliation by showing that “`(1) she engaged in activity protected under [the FLSA]; (2) she subsequently suffered adverse action by the employer; and (3) a causal connection existed between the employee’s activity and the adverse action.’“ Id. at 1342-43 (quoting Richmond v. ONEOK, Inc., 120 F.3d 205, 208-09 (10th Cir. 1997)). An employer may offer a “legitimate reason for the adverse action,” which the plaintiff must then show was mere pretext for the firing. See id. at 1343. When establishing causation, a plaintiff must show that the assertion of FLSA rights was the “but for” cause of the plaintiff’s termination. See Reich v. Davis, 50 F.3d 962, 965-66 (11th Cir. 1995).

Summary judgment is due to be denied on Traweek’s retaliation claim. First, Traweek has offered evidence that he engaged in a “protected activity” under the FLSA. Traweek sent an email to Alexander on January 31, 2014, asserting that, in Traweek’s opinion, failure to pay him for the previous two weeks of work constituted an FLSA violation. While not of the same character as a lawsuit or other formalized grievance, such a complaint is “activity protected” under the FLSA. See E.E.O.C. v. White and Son Enters., 881 F.2d 1006, 1011 (11th Cir. 1989) (finding that employees’ informal complaint to their supervisor about unequal wages constituted “an assertion of rights protected” under the FLSA). Alexander and Global argue that, because Traweek was terminated prior to his email complaining about a potential FLSA violation, he could not have “reasonably believed” that he was engaging in protected activity under the FLSA. See Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1388 (11th Cir. 1998) (requiring that a plaintiff bringing a retaliation claim have a “reasonable belief” that he or she was asserting valid rights under the FLSA, and incorporating both a subjective and objective component into the test). In the alternative, they argue that Traweek could not have “reasonably believed” that he was engaging in protected activity because, under existing law, Traweek’s position was clearly exempt from the FLSA’s minimum wage requirements. Having already found that reasonable jurors could differ concerning whether Traweek was in fact terminated on January 17, 2014, and that, at least at this stage, Defendants have failed to show that one of the FLSA’s exemptions applies, Defendants’ arguments on this issue are rejected.

Furthermore, Traweek has offered some evidence suggesting that an “adverse employment action” occurred. Traweek claims that Global’s continued failure to provide any compensation following his informal FLSA complaint eventually forced him to quit employment at Global, amounting to a constructive discharge. To establish that a constructive discharge occurred, a plaintiff must show that “the work environment and conditions of employment were so unbearable that a reasonable person in that person’s position would be compelled to resign.” Virgo v. Va. Beach Assoc., Ltd., 30 F.3d 1350, 1363 (11th Cir. 1994). Viewing the evidence in the light most favorable to Traweek, a reasonable jury could find that Traweek was still working for Global following January 17th, and that Traweek’s resignation on February 14, 2014 was the forced result of Defendants’ failure to pay him any compensation for the previous month’s work. Furthermore, assuming that Traweek was still employed following the January 17th meeting, Global’s failure to pay his wages can, in itself, be considered an “adverse employment action.” See, e.g., Penn. State Police v. Suders, 542 U.S. 129, 134 (2004) (stating that “an extreme cut in pay” can, under some circumstances, provide a basis for alleging constructive discharge); Bass v. Bd. of Cnty. Comm’rs, 256 F.3d 1095, 1118 (11th Cir. 2001) (stating in a Title VII case that an adverse employment action can be “conduct that alters the employee’s compensation”), overruled in part on other grounds by Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008).

What is the key takeaway from this? It is that if you are not paid when you are supposed to, complain in writing in a way that you can confirm that you complained – fax, email or even text message. You may get fired, but you would have added a wrongful termination claim. (And, who really wants to keep a job that is not paying you anyway?). A wrongful termination claim may get you damages beyond for the work that you performed and were not paid for. A wrongful termination claim will allow you to seek lost wages for your time between jobs and your wage differential if you were being paid less at your new job. If you are not fired for complaining, when you quit for not continuing to get paid, your lawyer can now assert that the continued lack of pay was retaliation that lead to your constructive discharge, which is another way to get to the damages allowed for wrongful termination.

If you are not sure how to complain, get our attorneys help. 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 The Spitz Law Firm today for a free and confidential initial consultation. The wage and hour lawyers at The Spitz 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.

Disclaimer:

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 The Spitz Law Firm, Brian Spitz, or any individual attorney.