Wage Theft/ Overtime Lawyer
In the current economic climate, wage theft — across all industries — is rampant. Jonah Flynn has represented wage and hour claimants across the country. The Flynn Law Firm represents workers misclassified as “independent contractors,” workers forced to work off the clock, workers paid less than the minimum wage, tipped employees who have been the victim of tip theft by their employer. Jonah aggressively pursues claims for workers who have had wages stolen or withheld, and if you were denied overtime pay or were not properly paid for your work, you may be able to file a lawsuit against your employer to collect compensation for unpaid wages, and additional damages. To find out if you have a case, contact the Flynn law firm today.
Industries with Frequent Wage and Hour Violations
Wage theft occurs across the employment landscape, but claims often come from the following jobs:
- Service technicians
- Gig Economy Workers, drivers, and delivery personnel.
- Exotic Dancers and Entertainers
- Delivery Drivers
- Commissioned Sales representatives
- Nurses and healthcare workers
- Waiters, Waitress, and Bar Tenders
- Tipped Employees
- Call Center Employees
- Retail workers.
- Construction workers
When it comes to stealing wages, employers are very creative. In some instances, employers go so far as to force “off the clock” work and even alter time clock entries, to shave hours off your paycheck. In other cases, employers and managers literally take tips from the tipped employees, which is outright tip theft.
If you have been denied overtime or shorted pay, you may be eligible to file an individual lawsuit or a collective action lawsuit on behalf of yourself and other employees to recover your unpaid wages. If your tips have been stolen or shared with management, you may be able to sue to recover the tips you had taken from you.
Wage Theft Cases
Because of the pandemic, managers and employers are under pressure to cut costs — often at the expense of employees. Wage theft is at an all-time high. From “gig” employers to exotic entertainment clubs, employers have ramped up efforts to cheat employees out of wages and tips. For example, your employer may claim you are an “independent contractor” even though you work at their business, use their tools, and comply with their work policies.
Other employers will creatively deny paying overtime by absurdly claiming that you didn’t have “permission” to work extra hours, or refuse to pay you for time spent doing certain work-related activities (i.e. putting on or taking off safety equipment or other work-required clothing, complying with pre-and post-shift security checks, checking e-mails from home, going to off the clock, after-hours meetings).
Misclassified as exempt: Under Federal and State law, some managerial employees are exempt from earning overtime. Employers use this “exemption” to creatively claim all their employees are “exempt” even if an employee isn’t a manager and has no supervisory role at the job. This means they are not being paid overtime pay when they work more than 40 hours a week. Unfortunately, employees can sometimes be wrongly classified as “exempt” either because their employer doesn’t understand the law or is trying to avoid paying overtime. For instance, an employer may promote a janitor or helper to “assistant manager” without changing the worker’s job duties to claim that he or she is an “exempt” manager and not entitled to “time-and-a-half” overtime pay.
Misclassified as an independent contractor: The misclassification of employees as “independent contractors” is a major source of wage theft. In the “gig” economy, contract labor has flourished; along with it, wage violations against contract or “independent” workers have skyrocketed. Often, “independent contractors” aren’t “independent” at all, and the economic realities of the employment relationship are that the worker should be treated as an employee.
Independent contractors typically work on a contract basis for other businesses. They are considered self-employed and do not receive benefits or overtime pay. Flynn Law Firm handles lawsuits against employers who have misclassified their workers as independent contractors despite the fact that they meet the definition of an “employee” and should receive overtime pay for the overtime hours they work. Cannabis industry workers, Exotic dancers, commissioned sales reps, and those in the construction industry are often misclassified as “independent contractors” by employers who seek to avoid paying payroll taxes, workers compensation benefits, unemployment insurance, overtime pay, and other wages or benefits. In the case of some entertainment and nightclub workers, a club won’t pay any hourly wage, instead forcing the worker to live off of tips only. This is illegal — all workers, even independent contractors, are entitled to earn the minimum hourly wage.
Employer fails to pay minimum wage for ALL hours worked: The federal minimum wage is $7.25 per hour, many cities and some states have passed legislation enforcing a higher minimum wage. In California, the minimum wage is $12.00 per hour, in Oregon, it is $11.25 per hour, in Washington, it’s $12.00 per hour. Some cities have their own wage rates: in Seattle, as of 2021, the minimum wage is $16.69 per hour; in Los Angeles, the minimum wage is $15.00 per hour if the employer has more than 26 employees, and in Portland, the minimum wage is $13.50 per hour. Day-rate workers, agricultural workers, and tipped employees (restaurants, bars, nightclubs) are particularly susceptible to minimum wage violations because of how they are paid. After-hours work cleaning up a bar or restaurant, off-the-clock shift meetings, and pre-shift “safety” meetings, and training sessions are all examples of “off the clock” work some employers routinely fail to compensate employees for.
There are local wage theft laws in place to try and limit and prevent this kind of theft. In Seattle, for example, the City passed a Wage Theft Ordinance” which provides protections against wage theft by establishing basic requirements for payment of wage and tips within City limits. The City of Seattle maintains an Office of Labor Standards which enforces wage and tip laws within the City.
Theft of Tips
Tipped employees are routinely the victim of wage theft, as employers and managers sometimes feel they too are somehow entitled to participate in tips from the customer — tips which are for tipped employees, not “back of the house” workers or management.
Under Federal law, tips may only be shared by “traditionally tipped employees” who, usually, are customer-facing “front of the house” employees. In order to constitute a valid tip pool, management must inform the worker, in advance, of how it is to be calculated. Management may never participate in tip pool — ever. If the tip-sharing arrangement at the restaurant, bar, club, or another place of employment requires you to share tips with back-of-the-house employees, managers, or owners, then you are the victim of tip theft and are entitled to compensation.
When Is Tip Sharing Or Tip Pooling Illegal?
Supervisors, managers, owners, or “the house” should not be part of tip pooling or sharing. If they receive a percentage of the tip out or pulls a dollar bill out of the tip jar, they’re likely breaking the law.
Other examples of tip theft include:
- An employer using “service charge” as tips
- Employer refuses to pay credit card tips past payday — sometimes for weeks — as the employer waits for reimbursement from the credit card company.
- Deductions (for leaving work early or failing to have another employer cover your shift) that bring worker’s wage below minimum wage in a given workweek.
- Withholding of “minimum wage makeup”
- Not being compensated for overtime work or off the clockwork
If your employer requires you to purchase tools, uniforms, permits, or other materials as a condition of employment, that employer is committing wage theft. Since 1938, the Federal Fair Labor Standards Act has required that minimum wages be received “free and clear” of costs incurred for the benefit of the employer. An employer may not deduct for providing items that are primarily for the benefit or convenience of the employer. In one case, for example, an employer who furnished butchers with knives could not deduct the cost of knives from wages; in another case, a court found deductions for transportation advances to an employee violate FLSA. This long-standing principle of the FLSA has been enforced in a wide variety of contexts since the passage of the FLSA in 1938. If an “essential condition of employment” requires you to make purchases, and the employer back-charges you for those purchases or does not reimburse you, you may be the victim of wage theft. Work Permits, costumes, work visas, tools, hair, and make-up to comply with an employer’s appearance policy, and other items which are used “for the benefit of the employer” must be reimbursed; if not, the expense related to those items constitutes wage theft.
Can I Be Fired for Filing a Lawsuit?
No. It is illegal for employers to retaliate against workers who file wage and hour lawsuits. Termination, demotion, reduction in hours, fake negative performance reviews, and assigning undesirable shifts are all examples of illegal retaliation. Under the Federal FLSA, retaliation gives rise to a separate cause of action, where a worker can claim general damages (for emotional distress and suffering), punitive damages, and attorney’s fees if an employer retaliates against that employee for filing a wage and hour case.
The Flynn Law Firm has handled wage theft claims from coast to coast. If you have been the victim of wage theft, you can recover your stolen wages; in some instances, you may be able to recover double your wages over a period of three years. Call or text 503-303-0600, 888-353-5995, or email firstname.lastname@example.org.