— Fair Pay Category Archives — Dallas Employment Lawyer Blog Published by Dallas, Texas Employment Lawyers

Gig workers: Employee or independent contractor?

December 19, 2022 | Haylie Davis

In October, the Biden Administration issued a highly anticipated proposal on how it will approach independent contractor status under federal wage law. The proposal, released by the US Labor Department, clarifies when workers should be classified as independent contractors or be classified as employees who are afforded many more rights, such as full minimum wage, overtime, and other protections provided under the Fair Labor Standards Act.

This is a potential game changer for millions of gig workers, who are often classified as independent contractors. This includes the quintessential Uber drivers and food delivery app drivers, but construction and agriculture have some of the largest representation of independent contractors in the country.

When this was announced, gig companies such as Uber Technologies Inc. and Lyft Inc. worried about what this will do for their company, as stock prices took a tumble after the announcement. These businesses say their operating costs would skyrocket if they were broadly required to reclassify their independent contractors as employees, due to the tax liabilities and minimum wage, labor, safety, and other legal requirements that apply to employees.

Am I Exempt or Non-Exempt from Stacks of Holiday Green?

December 5, 2022 | Paige Melendez

During the holiday season around my college campus, there was “common knowledge” that one of the biggest benefits of working retail on holidays like Black Friday was that you’d be entitled to time and a half solely because you worked on that day. Cut to becoming an employment lawyer and it’s time to debunk that myth. There are a few things that factor into working during the holiday season, which traditionally kicks off with Thanksgiving and more importantly, Black Friday. The first is whether a non-exempt employee can be forced to work on a holiday, then whether there are any additional benefits to working on a holiday that may make it worth it, and finally whether an exempt employee has access to these same considerations.

For starters, when I use the phrase “non-exempt” and “exempt” I am referring to the Fair Labor Standards Act (FLSA) denotation for employees who are entitled to overtime (and therefore “non-exempt”) and employees who are not entitled to overtime (and therefore “exempt.”) We are going to focus on non-exempt employees because that’s where the myth of extra pay originates. Turning to whether non-exempt employees can be required to work on a holiday like Thanksgiving or a federally recognized holiday, the short answer is: unfortunately, yes. The FLSA does not require employers to give employees days off even on a federally recognized holiday. Individual employers, of course, can decide to have truncated days or allow employees to request those days off, but there is no law requiring them to do so. There are a few exceptions to that rule, and they mostly involve employees that are allowed to have days off because of a different allowance like observing a religious holiday or where there is a collective bargaining agreement (union contract with employer) that allows those days off. Without an exception, the non-exempt employees are at the mercy of their employers. (There’s also that meme that says requests for days off are simply polite notices of non-attendance, but I would not recommend that strategy.)

Next, we turn to the myth that started it all: employees get paid extra to work on holidays. This myth is both true and false like all good myths. The true part is that if working on Black Friday pushes non-exempt employees over the 40-hour threshold, employers are then required to pay time and a half like any regular overtime. The false part is that there is no requirement under the FLSA that says employers must pay workers time and a half simply for working on a holiday if those hours do not count for over 40 hours. Therefore, it can be beneficial for employees to work on holidays because the hours are longer and more likely to net overtime pay, but there is no benefit just by working on a holiday.

When it doesn’t pay to be the boss: the Fair Labor Standards Act’s “Manager Rule”

September 9, 2021 | Austin Campbell

Summary: This article gives a brief overview of the problems that the “manager rule” can cause high-level employees trying to raise concerns about pay issues, as well as the limits of that rule.

Categories: At-will; Wrongful termination; Retaliation Claims; Fair Pay; Wage and Hour; Tipped Employees

If your employer turns on you and starts taking actions against you because you raised a complaint protected by law, you may be suffering unlawful retaliation. However, not all laws treat all complaints—and all whistleblowers—the same. As a result, even clear retaliation might not always cross over the line into actually being illegal.

Just because your employer is not keeping records does not mean “time is an illusion” and they get to steal your wages—you may still be able to prove what you are owed!

May 28, 2021 | Austin Campbell

Wage theft—when employers fail to pay their employees the amounts they are legally required to for the work their employees perform—is by some estimates more common than all forms of robbery combined. Ross Eisenbrey, Wage Theft Is a Bigger Problem than Other Theft – But Not Enough Is Done to Protect Workers, Econ. Pol’y Inst. (Apr. 2, 2014), available at http://www.epi.org/publication/wage-theft-bigger-problem-theft-protect [https://perma.cc/E6FY-F992]. A significant part of that is unpaid overtime in violation of the federal Fair Labor Standards Act (“FLSA”).

Given the magnitude of the problem and the limited resources of the U.S. Department of Labor, the burden is often on you as the employee to sue and prove that you are owed overtime pay, as well as how much you are owed. The FLSA requires employers to keep records of employees’ wages and hours, but does not allow an employee to sue employer just for failing to keep proper records. Thus, often—especially in situations where your employer is illegally treating you as a salaried employee to avoid paying you overtime altogether—you can have a hard time even figuring out what you are actually owed.

While whether you the type of employee who is owed overtime is a complicated enough topic in its own right, this article focuses on how you can prove how much you are owed in a situation where your employer may have set things up to make that as hard as possible.

I’m Salaried, Working More than 40 Hours, Where’s my Overtime Pay?

June 22, 2020 | Deontae Wherry

Over the last month, I have noticed an increase in the number of salaried employees who have become concerned about their paycheck. Some salaried employees have found themselves mandated to reduce their work to less than forty hours per week, and as a result to account for the reduction, their employers have threatened to reduce their pay. Conversely, other salaried employees have found themselves working significantly more than their traditional forty-hour work week as a result of the high COVID demands in their particular industry. However, some companies are not compensating employees for the extra hours worked – can they do that? Well, the answer is, it depends.

Here’s a Tip: Don’t Let Restaurants Steal Yours

May 25, 2020 | Deontae Wherry

The restaurant industry is known for stealing hard-earned tips from its employees. This practice has been going on for years, yet it continues to be a paramount issue in the industry. As a restaurant employee, you may have asked yourself the following question because you have seen it done time and time again: Can my manager take my tip? Am I obligated to pay for a walked tab? Do I have to share my tip with cooks? The answer to all of these questions is likely no.

I am entitled to COBRA continuation health coverage, but my employer never sent me a COBRA election notice after I lost my job. Am I entitled to compensation?

May 18, 2020 | Rob Wiley, P.C.

Likely yes. The Consolidated Omnibus Budget Reconciliation Act (COBRA) requires employers (or their plan administrators) to notify qualified employees of their entitlement to the continuation of the same health coverage that they would have otherwise lost due to specific qualifying events, like a job loss. Failure to do so may expose the employer to statutory penalties of up to $110 per day, reimbursement of medical bills incurred by the employee, and the employee’s attorneys’ fees and costs.