The following is a non-exhaustive checklist of factors to consider for possible violations of the US Fair Labor Standards Act minimum wage, FLSA overtime provision or both under federal or Maryland law for non-exempt workers.
Most obviously, an hourly wage below $7.25/hour for most workers, with some exceptions. Likewise, work for which no additional pay is payable after the 40th hour per week for “blue collar” workers is suspect.
- Less obvious checklist items.
- “Comp time” schemes in private employment by which management “allows” workers to earn paid time off in exchange for working overtime. Most “comp time” schemes are illegal for private non-exempt workers if they fail to pay immediately and in full a wage at least 1.5 times the regular hourly wage for the 41st hour per week or more.
- “On call” schemes for non-exempt workers where they must remain on-site but are not paid until a customer comes in or an order processes. For the most part, such schemes are illegal and constitute both an overtime and minimum wage claim.
- Working through breaks, working through lunch “off the clock” – indeed any “off the clock” work whatsoever.
- Tip theft whereby management takes a “rake” of workers’ tips or fails utterly to remit them. This is also a Maryland Wage Payment and Collection issue for many workers but may implicate federal jurisdiction if the tips and wages don’t add up to minimum wage.
- Strange placement of punch clocks for workers, such that the worker is onsite for a long time before the worker gets to the clock. Unlikely to be an issue in most offices but could easily be an issue for a factory or warehouse. If management makes workers park on one end of a 1/2 mile long factory, but punch in at the other end, that’s possibly 100 minutes a week of unpaid overtime per affected non-exempt worker; the workers are doing an unpaid 1 mile daily march for the company’s benefit and not their own.
- Mandatory residence requirements for resident managers. These are not violations in themselves, but if management requires the worker to work there it’s a working condition and not a worker benefit. If management charges rent for this mandatory relocation or lowers wages in consideration of it, multiple claims may be implicated.
- Running errands “on the way home.” While for my own practice I would not to pursue every OT claim where a worker dropped an envelope in a blue USPS box at 5:03
- Salaries below $455/week. $455 is the equivalent of forty hours per week at the federal minimum wage, times 1.5. For workers to be considered exempt as “administrative employees” they must earn at least this salary and perform administrative functions as identified by regulation. A salary below this amount is not always illegal but it always merits additional scrutiny. The fact that a worker is salaries does NOT control, in itself, whether overtime or minimum wage laws apply; additional analysis of the precise pay and the precise job duties is required. But a salary below $455 a week is a red flag.
- Any history of workers getting fired for discussing wages amongst themselves. Under the National Labor Relations Act, many discussions between workers about wages or working conditions are protected and may not form the basis of workplace discipline, even if the workers are not seeking or contemplating a bargaining unit or union. The fact that management fires workers for discussing wages or working conditions may (or may not) suggest potential illegality in the wage scheme itself, motivating retaliatory firings to prevent scrutiny; it may be a “two-fer.”
- Any history of a worker getting fired for complaining to management about a wage payments, minimum wage issues or overtime issues. Retaliation is illegal and dangerous to management; the fact of retaliation doesn’t prove that the wage is illegal but it’s like Nixon and the cover-up: the existence of a coverup suggest guilty knowledge. It merits scrutiny in itself as an independent FLSA or Maryland violation for retaliation and for the wages that management has improperly failed to pay.
- Any union busting activities by management – for itself and for what the busting is covering up.
- Delays, irregularities in the payroll mechanics.
Again, the foregoing list is NOT exhaustive but when management is engaging in illegal nonsense there are clues, some obvious and some more subtle or needing more scrutiny. When in doubt, pick up the phone and call an attorney.