Best Ohio Wage Theft Attorney Answer: Should I be paid when I’m on call? How long do I have to sue my boss for not paying me overtime wages after I stop working? Can I still sue for my overtime pay?
If you have ever purchased or had food in your refrigerator from the grocery store, you may be familiar with the term, “expiration” or “sell by” date. The expiration date is essentially the last day food can be eaten safely without fear of it spoiling and the sell by date does essentially the same thing. Different foods have different expiration and sell by dates, and what some people may not realize is that in some cases, food can still be eaten past the sell by date. One thing that many people may not realize is that their potential claim is governed by a similar concept known as the statute of limitations. The statute of limitations is the amount of time that an individual has to either notify or file a law suit against someone. If you fail to notify of file a law suit within the statute of limitations, you will lose your right to sue for that particular claim. While our employment lawyers have blogged on different statute of limitations before, (Wage & Overtime Claims: Court of Appeals Rejects Employer Contract Shortening Statute Of Limitations For Wage Claims; New Clarification on 90-Day Statutes of Limitations Contained in EEOC Right to Sue Letters), this wage and hour attorneys‘ blog will focus more on claims under the Fair Labor Standards Act (“FLSA“).
Just like different fruits have different expiration dates, different claims under the FLSA can have differing statute of limitations. While generally the statute of limitations for FLSA claims is a two year look back period, but if there is a willful violation of the FLSA, this is extended to three years. Essentially, each pay period is its own violation and you have the two or three years to look back and recover for your employer’s failure to pay you minimum wages or overtime. As each week passes, one week drops off the back end if you had worked at the job for over the two or three years at issue. However, if you only worked at the employer for say six months, you would have a year and a half to file a wage and hour lawsuit before pay periods would start dropping off the back end of the two year statute of limitations or two and half years to file under the three year willful violation statute of limitations.
To prove an employer willfully violated, you must show that the employer affirmatively knew it was violating the FLSA or that it was acting with ‘reckless disregard’ of the FLSA. In Kordobler v. DNC Parks & Resorts at Sequoia, the U.S. District Court, E.D. California dealt with the issue of which statute of limitations would apply. Martin Kordobler worked for DNC Parks & Resorts as a mechanic. During his time there, he and other mechanics were required to work a certain amount of shifts on an on-call basis, in order to respond to any emergencies that may arise at the resort. Mechanics would be on call between 14 and 16 hours, were required to stay within two miles of the resort, were required to respond to calls within 15 minutes, and would regularly be called for technical and service advice. Despite having to follow all these rules, the mechanics were not paid unless they actually completed work orders. Martin eventually sued DNC Parks & Recreation under the FLSA for failing to pay minimum wages and overtime wages for the on-call work.
DNC Parks & Recreation argued that Martin couldn’t bring the claim because he was outside the two year statute of limitations to file and that Martin had not shown that the three year statute of limitations should apply. However, the Court stated that in the pleading stage, or the stage where the complaint is filed, the element of willfulness didn’t have to be made specifically but only had to give enough facts to show that willful violation of the FLSA may have occurred. Specifically, the Court held:
The Court dismissed Korndobler’s original FLSA claims as untimely because it was apparent from the face of the original complaint that the two-year statute of limitations had run and Plaintiff had alleged no facts that could have established that the three-year period applied. MTD Order at 11. Plaintiffs’ amended complaint cures these deficiencies by alleging that Defendant “knew that it was scheduling Plaintiffs under circumstances which it was required to pay on call wages” and “knew—or chose to ignore—that it was required to pay `on-call’ wages like other employers and failed to do so and therefore its failure to pay the `on-call’ wages alleged herein was willful or reckless.” SAC ¶ 34. These allegations are sufficient to allege willfulness. See Rivera, 735 F.3d at 902-903 (finding that farmworkers’ allegations that certain actions were “deliberate, intentional, and willful” adequately plead that willful FLSA violations). Therefore, the Court DENIES Defendant’s motion to dismiss Korndobler’s claims pursuant to Rule 12(b)(6).
Because of the Court’s ruling, the claim proceeded on to the next step.
Wrinkles in statutes and laws can make or break a potential claim. Our employment lawyers are experienced and know the ins and outs of the FLSA.If you have a potential claim, call our firm immediately.
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.
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.