Wage and Hour Law

Excerpts From the “Crisis of Wage Theft” Disclose That Wage Theft is Causing Workers to Lose Billions of Dollars in Unpaid Overtime — Our Chicago Overtime Attorneys Take Action to Protect Your RIght to Collect Unpaid Overtime

January 24, 2010 | Peter S. Lubin and James V. DiTommaso

In These Times online edition has posted excerpts from book “Crisis of Wage Theft”. You can read the excerpts by clicking here.

The book describes the billions of dollars in wages are being illegally stolen from millions of workers each and every year through large corporations failing to pay workers minimum wages or time and half for overtime. It states:

Billions of dollars in wages are being illegally stolen from millions of workers each and every year. The employers range from small neighborhood businesses to some of the nation’s largest employers—Wal-Mart, Tyson, McDonald’s, Target, Pulte Homes, federal, state, and local governments and many more.

Wage theft occurs when workers are not paid all their wages, workers are denied overtime when they should be paid it, or workers aren’t paid at all for work they’ve performed. Wage theft is when an employer violates the law and deprives a worker of legally mandated wages.

Wage theft is widespread and pervasive across all types of companies. Various surveys have found that:

• 60 percent of nursing homes stole workers’ wages.
• 89 percent of nonmonitored garment factories in Los Angeles and 67 percent of nonmonitored garment factories in New York City stole workers’ wages.
• 25 percent of tomato producers, 35 percent of lettuce producers, 51 percent of cucumber producers, 58 percent of onion producers, and 62 percent of garlic producers hiring farm workers stole workers’ wages.
• 78 percent of restaurants in New Orleans stole workers’ wages.
• Almost half of day laborers, who tend to focus on construction work, have had their wages stolen.
• 100 percent of poultry plants steal workers’ wages.

Although wage theft is the most pernicious when employers steal money from workers earning low wages, wage theft affects many middle-income workers too, including construction workers, nurses, dieticians, writers, bookkeepers, and many more. Wage theft affects young workers, mid-career workers, and older workers. Although some of the worst wage theft occurs when immigrant workers aren’t paid minimum wage or aren’t paid at all, the largest dollar amounts are stolen from native-born white and black workers in unpaid overtime.

Millions of workers are having their wages stolen. Two, possibly as many as 3, million workers aren’t being paid the minimum wage. More than 3 million workers are misclassified by their employers as independent contractors when they are really employees, which means their employers aren’t paying their share of payroll taxes and many workers are being illegally denied overtime pay. Untold millions more aren’t being paid overtime because their employers claim they are exempt from the overtime laws, when they really aren’t. Several million more aren’t being paid for their breaks or have illegal deductions made from paychecks. The scope of these abuses is staggering.

Wage Claim Class-Action Lawsuits for Unpaid Overtime Are on the Rise — Our Chicago Attorneys Are Investigating and Litigating a Number of Unpaid Overtime Claims

January 22, 2010 | Peter S. Lubin and James V. DiTommaso

Daniel Barr on unpaid overtime for MCSO en Yahoo! Video

In our work as Illinois and nationwide wage and hour attorneys, we frequently see workers who have been misclassified as exempt from overtime. Whether this was an honest mistake or an intentional attempt to save money, it effectively “steals” wages from the misclassified employees. DiTommaso Lubin stands up for the rights of workers in Chicago, Illinois and throughout the country who are victims of overtime wage theft, including misclassified employees as well as those pressured to work off the clock; lie on timesheets; or simply not paid an overtime rate. Our Oak Brook, Waukegan, Northbrook, Joliet and Chicago unpaid overtime lawyers handle both individual and class action employment cases. Based in Chicago and Oak Brook, Ill., we represent clients throughout Illinois, the Midwest and the United States.

Loan Underwriters Are ‘Production’ Employees Eligible for Overtime, Court Rules

January 16, 2010 | Peter S. Lubin and James V. DiTommaso

Our Chicago overtime rights lawyers were interested in a recent wage and hour decision out of the Second Circuit. In Whalen v. J. P. Morgan Chase Co., No. 08-4092 (2nd. Cir. Nov. 20, 2009), a group of loan underwriters sued J.P. Morgan Chase, their employer, for unpaid overtime in a proposed class action. The plaintiffs contended that they were misclassified as administrative employees, because their duties did not meet the federal Department of Labor’s definition of administrative duties. The district court in New York disagreed and granted summary judgment for Chase. But the Second Circuit reversed that judgment, saying loan underwriters cannot be exempt administrative employees because their work furthered Chase’s core business of making loans, rather than helping to run or direct the company.

For four years, plaintiff Andrew Whalen worked for Chase as an underwriter. His job was to evaluate whether to grant loans to individuals, using detailed guidelines provided by Chase. Some underwriters were sometimes permitted to deviate from these standards. Whalen contended that he frequently worked more than 40 hours a week, but Chase classified him as an administrative employee exempt from the overtime provisions of the Fair Labor Standards Act. Whalen eventually sued for a declaratory judgment that Chase violated the FLSA by failing to pay overtime, but Chase prevailed on cross-motions for summary judgment. Whalen appealed.

The Second started by looking at the definition of administrative employees. The federal Department of Labor says administrative work is “directly related to management policies or general business operations” and “customarily and regularly exercises discretion and independent judgment.” Using a variety of documents from the Department on the financial services industry, the court drew a distinction between exempt employees with advisory duties and non-exempt employees who carry out the employer’s day-to-day operations.

Whalen’s job was to sell loans according to Chase’s detailed standards, the court wrote, not to advise customers on which loans to get. This puts the job firmly on the “production” side of Chase’s business, the court wrote, as distinct from management duties or “general business operations” such as human resources. Furthermore, the Second wrote, Chase itself referred to underwriters’ duties as “production” work. In doing so, the court drew a distinction between “production” and “administrative” work supported by its own past decision in Reich v. State of New York, 3 F.3d 581 (2d Cir. 1993) as well as by precedents in the Ninth, Third and First Circuits. Whalen’s job did not met the management/general business operations test set forth by the Department of Labor, the court wrote, which is enough to conclude that he was not a bona fide administrative employee. Thus, the Second Circuit reversed the trial court’s summary judgment decision.

Illinois Department of Labor Maintains an Excellent Website Providing Information on Federal and Illinois Overtime Laws — Chicago Unpaid Overtime Lawyers and Attorneys Who Can Protect Your Wage Claim Rights to Unpaid Overtime

November 29, 2009 | Peter S. Lubin and James V. DiTommaso

The Illinois Department of Labor has a great website which provides alot of useful information on fair labor laws including the requirement that employers pay time and half for overtime work for non-exempt employees.

You can find the website here. With regard to federal and Illinois overtime laws, the website provides answers to various questions and links to other areas of the site for answers:

When is overtime pay legally due?

U.S. Department of Labor Maintains an Excellent Website Providing Information on Federal Overtime Laws — Chicago Overtime Attorneys and Lawyers Who Can Protect Your Wage Claim Rights to Unpaid Overtime

November 28, 2009 | Peter S. Lubin and James V. DiTommaso

The United States Department of Labor has an excellent website which provides detailed information on fair labor laws including the requirement that employers pay time and half for overtime work for non-exempt employees.

The website is located here. With regard to federal overtime laws, the website states:

Overtime Pay

Federal District Court Certifies Class in Overtime Class Action Lawsuit

December 25, 2008 | Peter S. Lubin and James V. DiTommaso

Our Chicago class action attorneys recently noted that the U.S. District Court for the Northern District of Illinois has conditionally certified a wage and hour class action alleging that Illinois Bell Telephone failed to pay overtime to its hourly employees. In Russell v. Illinois Bell Telephone Co., 08 C 1871 (filed April 1, 2008), Constemecka Russell alleges that Illinois Bell regularly required her and other hourly employees to work off the clock, and sought to conditionally certify these employees as a class and notify them of the action. Several of her colleagues have joined and submitted affidavits supporting her allegations. The case is pending, but the judge granted those motions Sept. 15 over most of Illinois Bell’s objections.

U.S. District Judge Matthew Kennelly’s opinion granting certification and notice repeats many of Russell’s allegations about the unpaid overtime. Russell worked in sales for the company at a call center, and she alleges that she was paid only for time she spent logged into the call center’s computer system. However, there were certain work tasks that she had to perform without being logged in, during lunch and rest breaks, including tasks like filling orders as well as time spent logging onto the computers and opening software programs. She estimated that she spent between 15 minutes and an hour per day doing this unpaid work, which sometimes would have entitled her to overtime.

In response to Russell’s request for class certification and notice, Illinois Bell argued that class certification is inappropriate because it doesn’t use the phone system to keep time, and thus there is no common policy or practice linking the proposed plaintiffs. The court was unimpressed by this argument. It pointed to multiple assertions by Russell that company practice was to require unpaid work before and after time on the phone, as well as affidavits by joining plaintiffs stating that managers explicitly instructed them to work off the clock. It also dismissed arguments that written policies were evidence that Illinois Bell complied with the law.