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ASKING ABOUT SMALL PAYCHECK GETS WORKER THE BOOT
QUESTION: I work for a tree-trimming and removal company; I usually work 40 hours each week. Beginning last month, the company got really busy, and I was working 50 to 60 hours a week. Although my paycheck was bigger, I noticed that I was being paid the same rate – $14.50 per hour — for all the hours I worked. When I asked my boss about it, he said straight time is good enough for soldiers, it should be good enough for me. (Like me, he’s a veteran.) The next week my hours were cut. Since then, I’m lucky to get 30 hours per week. Is there anything I can do about it?
ANSWER: Under the federal Fair Labor Standards Act (FLSA), which applies to employers that gross at least $500,000 per year and have at least two employees, hourly workers like you are entitled to overtime pay. If you are covered by the FLSA, you should have been paid time and a half — $21.75 per hour – for each hour worked beyond 40 hours in one week.
Workers who think their overtime rights under the FLSA have been violated can file an anonymous complaint federal Department of Labor’s Wage and Hour Division (WHD), which may investigate, fine and even (in severe cases) jail your employer, as well as ordering payment of back pay.
Under the law, it is also, separately, illegal for an employer to retaliate or even threaten to retaliate against you for engaging in “protected activity,” that is, for asserting or attempting to assert your rights. Your complaint to your boss is an example of protected activity, as is filing a complaint with the WHD, helping with a WHD investigation, asking for wages that are owed, or even discussing violations of your rights with co-workers.
At its worst, retaliation can result in loss of a job, but it can also include any “adverse action” in response to your assertion of your rights – a disciplinary write-up, demotion, change in shift, reduced hours, worse assignments, withheld pay, or threats of termination, etc.
About a year ago, a Georgia auto repair shop paid a hefty price for retaliation when it first refused to provide a worker who resigned his last check of $915 and then – after the worker complained to the WHD –– dumped his pay in the form of 91,500 oil-covered pennies on the man’s driveway. The WHD filed a complaint against the repair shop seeking $36,791 in back wages and liquidated damages.
In another case brought by the WHD, two restaurants had to pay almost $140,000 in back wages and damages to workers for violating the minimum wage and overtime requirements of the FLSA. The restaurant owners had not learned their lesson: They retaliated against the workers by threatening to fire, blacklist, or report them to immigration unless they kicked back some of the back pay. After that, the WHD asked the courts to ensure the restaurants could not violate employee rights again, and sought hefty punitive damages.
Although claims of retaliation can be investigated by the WHD, contacting the Department is not the only avenue available to employees: Workers can choose instead to hire an attorney to bring their case – often more quickly — in state or federal court. The remedies for retaliation include back pay, damages, reinstatement and payment of the worker’s attorney fees.
The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.
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ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN LEGAL PLLC
900 Wilshire Drive, Suite 104
Troy, MI 48084
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