Overtime Archives - Ortiz & Moeslinger, P.C.

Overtime Class Action Types

April 9, 2023/in Class Action, Overtime/by competenow

Overtime Claims – Common Class Action Types

Here are some common types of overtime claims we handle on a class action basis.

Restaurant Industry: Workers such as servers, bussers, and kitchen staff and claims for minimum wage, overtime, and tip-theft.
Technical Support: Overtime claims for technical support workers in the telecommunications, banking, and corporate sectors.
Retail Industry: Assistant store managers are often misclassified as exempt from overtime and can accrue substantial claims.
Adult Nightclub Industry: Dancers and entertainers suffer from frequent misclassification as independent contractors and non-payment of minimum or overtime wages, including earned fees and tips.
Grocery Store Workers: Employees being denied proper overtime compensation because their employers unlawfully paid them using the “fluctuating workweek” method. It is important to examine whether the employee is really paid a fixed salary and other factors in order to be lawfully paid in this manner.
Banking and Brokerage: Bank and brokerage employees, including assistant managers, customer service managers, personal bankers, loan officers, and financial advisors, for unpaid overtime.
Prevailing Wage: Massachusetts workers on public work jobs not being paid the correct rate and, consequently, not being paid the correct overtime rate.

If you think one of these scenarios applies to you, reach out and we’ll do a free assessment of your claims.

Care Coordinators May be Misclassified and Entitled to Overtime and Backpay

August 23, 2022/in Overtime, Wage/by competenow

Managed Care Organizations (MCO’s) often contract with State Health Departments to provide care for dually eligible Medicaid and Medicare patients pursuant to requirements established by the federal Centers for Medicare & Medicaid Services (CMS). Care coordinators provide case management services on behalf of the MCO to various populations.

Managed Care Organizations is a vague term for normal people but some examples include:

Aetna/CVS Health
Anthem, Inc.
Health Care Service Corporation (Blue Cross Blue Shield)
BMC HealthNet
CareSource
Centene
Cigna
Humana
Independence Health Group
Molina Health
Tufts Health
UnitedHealth Group
WellCare

If you work or have worked for an MCO in the past three (3) years and are/were:

Classified as exempt from overtime (you did not receive overtime pay and likely did not clock in and out for your schedule work shifts)
Paid on a salary basis (your paycheck is the same every pay period regardless of how many hours you worked) and
Routinely work over 40 hours per week but are not paid for hours worked over 40 per week

You may be entitled to overtime and backpay! Contrary to popular belief, employees paid on a salary basis are not automatically exempt from overtime – time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek. Instead, everyone is entitled to overtime unless they fall within particular exemptions established by the FLSA.

Under the Section 13(a)(1) of the FLSA, certain categories of employees can be exempt from the overtime provisions of the FLSA, including employees working in a bona fide administrative, executive, or professional capacity.

An employee’s exempt status depends on whether their job duties qualify the employee for an exemption from federal overtime protections. Job Title is irrelevant for purposes of determining appropriate exemptions under the FLSA. For example – just because your job title is “administrator” does not mean you are administratively exempt. Instead, in order to be exempt under the administrative exemptions, an employer must show that the primary duties of the “administrator” are:

The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $684 per week;
The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and
The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

The United States Department of Labor (“DOL”) Fact Sheet regarding the Administrative Exemption can be found here. In addition, the DOL issues opinion letters in order to address particular questions or gray areas regarding exemptions and compliance with the FLSA. While the DOL has not addressed the issue of care coordinators directly – it has found that other similar employees are not exempt employees.

For example, in DOL Opinion Letter FLSA2005-50 (November 4, 2005), the DOL found that “caseworkers” that “provide case management services” and who possessed a bachelor’s degree in social sciences were not administratively exempt employees under the FLSA. Similarly, in FLSA2007-7 (February 8, 2007), the DOL found that “case managers” were non-exempt whose primary duty “is to meet and to work with consumers to gather information, to assess each consumer’s needs, to assess the costs of care, to prepare a plan of care, and to identify and to implement services to meet the consumer’s needs.” The DOL emphasized that case managers “do not personally deliver or administer services to the consumers – but are response for planning and helping to obtain those services from third-party service providers.”

Care Coordinators often do similar work to the caseworkers and case managers the DOL has held are not exempt from overtime. If you have performed care coordination services in excess of forty hours per week without receiving overtime pay in the last three years, you may have a valuable claim for unpaid wages. We evaluate cases confidentially and at no cost to you. You can reach us by phone at (617) 338-9400, by email at [email protected], or by filling out the form below.

Research Assistants and Overtime Pay

November 22, 2021/in Overtime/by competenow

Post-Baccalaureate Research Assistants (“RAs”) are notoriously underpaid and overworked in research programs all over the country. The budgetary constraints of grant-funded research programs often lead to understaffing, which in turn causes professors and other senior research staff to assign ever-increasing workloads to the RAs underneath them. This results in RAs having to work numerous overtime hours to satisfy their supervisors. For RAs who do not earn a salary of more than $684.00 per week, these overtime hours entitle them to compensation at a rate of 1.5 times their regular rate of pay.

The FLSA exempts from its overtime pay requirements “any employee employed in a bona fide . . . administrative or professional capacity[.]” 29 U.S.C. § 213(a)(1). To fall within the either the administrative or professional exemption, an employee must be paid a salary of at least $684 per week. 29 C.F.R. § 541.300. For the administrative exemption to apply, the employee’s primary duties must constitute office or other non-manual work related to the general business operations of the employer, and the employee must exercise discretion and independent judgment. For the professional exemption to apply, the employee’s primary duty must require either “knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized instruction” or “invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor.” 29 C.F.R. § 541.300(a)(2). The Massachusetts administrative and professional overtime exemption language is nearly identical to the FLSA’s, and it has largely been interpreted to mirror the FLSA exemptions’ reach.

The primary duties of most RAs generally fall under either administrative or professional work. Accordingly, whether an RA is entitled to overtime compensation turns on whether they are paid a salary of at least $684.00 per week ($35,568.00 per year). Thus, if you’re an RA making below that threshold, you are entitled to 1.5 times your regular rate of pay for all hours worked over forty in a workweek. Additionally, RAs who are paid on an hourly basis—even if they make over $684.00 per week—are also entitled to overtime compensation.

Unfortunately, the vast majority of RAs are in no position to assert their overtime rights as employees. The reality is that most are working as RAs for the sole purpose of bolstering their candidacy for hypercompetitive graduate school programs that require resoundingly positive letters of recommendation from each applicant’s supervisors—the same supervisors asking them to work long hours without overtime pay. This gives supervising professors and other senior research staff a huge amount of leverage over RAs, as a subpar recommendation will substantially impede graduate school admissions prospects and long-term career aspirations. Fortunately, there are two solutions to this imbalance of power.

First, Massachusetts law permits individuals with valid claims for unpaid overtime to bring claims at any time within three years of performing the unpaid overtime work. Thus, RAs have time to get their letters of recommendation, get into their graduate programs, and then bring a claim for their unpaid overtime wages without putting their career at risk.

Second, one RA can bring a class action lawsuit on behalf of all other similarly situated RAs. This means that if a university or program engages in a common practice of requiring RAs to work overtime, one RA’s bringing of the suit enables all other RAs who were subjected to the same unlawful practice—both current and former—to recover overtime wages without participating in the litigation, eliminating any risk of improper retaliation to unnamed class members. Additionally, the law incentivizes class actions by permitting cash awards to those who initiate the suit. Thus, an RA who initiates a class action and thereby incurs the risks associated with litigation may receive an additional incentive payment of several thousand dollars for their role in asserting and protecting the rights of others.

If you are an RA who has performed more than forty hours of work per week without receiving overtime pay within the last three years, you may have a valuable claim for unpaid wages. We evaluate cases confidentially and at no cost to you. You can reach us by phone at (617) 338 – 9400, by email at [email protected], or by filling out the form below.

Overtime Pay for Nurses, PAs, and NPs

November 12, 2021/in Overtime/by competenow

Now more than ever, nurses and other medical professionals are working long hours. Many of them are entitled to overtime pay. A federal court recently approved a $160 million settlement in a class action lawsuit brought by nurse practitioners and physicians’ assistants employed by the U.S. Department of Veterans Affairs. The nurse practitioners and physicians’ assistants alleged that they were required to work overtime to update patient records and monitor and respond to patient-related notifications in the computer system, all without being paid. Under federal law, nurses, physicians’ assistants, and nurse practitioners are entitled to overtime pay in many cases.

Although the Massachusetts overtime law does not apply to individuals who work in “a hospital, sanitorium, convalescent or nursing home, infirmary, rest home or charitable home for the aged,” nurses, physicians’ assistants, and nurse practitioners who work outside of these settings may be entitled to overtime pay under Massachusetts law. Those who do work in places like hospitals and nursing homes can be entitled to overtime pay under federal law, specifically the Fair Labor Standards Act, or FLSA.

The FLSA, 29 U.S.C. § 203, is an employment law that, among other things, establishes minimum wage, time-and-a-half overtime pay, recordkeeping requirements, and child labor protections. Most relevant here, FLSA requires, with some exceptions, that employees be paid overtime pay at a rate of one-and-a-half times their regular hourly rate for all hours worked over 40 in a single workweek. However, like the Massachusetts overtime law, the FLSA does not apply to certain categories of employee, such as “learned professionals”.

Registered nurses are can be considered learned professionals in some circumstances because qualifying as a registered nurse typically requires specialized instruction and the passage of a licensing exam, and their primary job duties typically include consistent exercise of discretion and judgment in a field of science or learning. However, according to the regulation 29 C.F.R. § 541.3(e), which provides detail for exemptions and exceptions to the FLSA, in order to not be eligible for overtime pay under the FLSA, registered nurses must also be paid on a salary basis at a rate of no less than $684 per week. In other words, registered nurses who are paid hourly or who are paid on a salary basis but earn less than roughly $35,568 per year are still entitled to overtime pay whenever they work more than 40 hours in a workweek, even though they are learned professionals in terms of their job responsibilities. The Massachusetts overtime law has a nearly identical learned professional exemption, which has been largely interpreted to mirror the reach of the FLSA exemption.

In a 2006 case, Belt v. EmCare, Inc., a federal court determined that physicians’ assistants and nurse practitioners must also be paid overtime when they are paid at an hourly rate, just like registered nurses. The regulation 29 C.F.R. § 541.3(e) states that the requirement that a learned professional be paid a salary of at least $684 per week does not apply to employees who are licensed to practice law or medicine. Registered nurses are not considered “licensed to practice medicine”, so the salary requirement does apply to them. The court in Belt held that the salary requirement also applies to physicians’ assistants and nurse practitioners. In Belt, physicians’ assistants and nurse practitioners who worked in hospital emergency rooms and were paid an hourly rate sued their employer for not paying them overtime. The physicians’ assistants and nurse practitioners were paid the same hourly rate even when they worked more than 40 hours in a workweek. The employees brought the case as a class action.

The employer pointed out that physicians’ assistants and nurse practitioners perform many of the “traditional duties” of physicians and, unlike nurses and pharmacists, help develop treatment plans for patients. Because of this and because physicians’ assistants and nurse practitioners are required to have a license, the employer argued that physicians’ assistants and nurse practitioners are, in fact, licensed to practice medicine.

The court disagreed and held that physicians’ assistants and nurse practitioners, like nurses, “merely served” the medical profession, to use the language in the regulation. The court agreed with the employees that physicians’ assistants and nurse practitioners are more similar to employees in other medical occupations such as pharmacists, nurses, and therapists, who must be paid on a salary basis to not be eligible for overtime, than they are to dentists or optometrists, who are not eligible for overtime even when they are paid hourly. The court also noted that physicians assistants’ and nurse practitioners are not licensed to practice medicine under any state’s medical practices law. In other words, the FLSA requires that physicians’ assistants and nurse practitioners, like nurses, be paid overtime if they are not paid on a salary basis.

In this case, the court signaled strong support for medical employees’ rights under the FLSA to be free from what the court describes as “the evil of overwork as well as underpay.” The court made it clear that these rights apply even in positions with higher barriers of entry and increased responsibilities, like physicians’ assistants and nurse practitioners have.

If you want more information about the FLSA and overtime pay in medical settings, feel free to contact our office for a free and confidential consultation.

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Focused young businesswoman working on electronic documents

Law School Graduates and Attorneys: You May Be Entitled To Overtime Pay For Document Review Work

September 28, 2021/in Overtime/by competenow

Many recent law school graduates and newly licensed attorneys work on document review projects while searching for stable, long-term employment. Most document review companies hire employees on a project-to-project basis and compensate those employees with an hourly wage. For many projects, the applicable compensation policy provides that employees are to be paid at the regular hourly rate for all hours worked, including any hours worked in excess of forty per week. Depending on the nature of each project and the duties of document reviewers, this practice may run afoul of Massachusetts’ Overtime Law and the Fair Labor Standards Act (“FLSA”).

Document review companies ostensibly withhold overtime pay under the belief that document reviewers are exempt from Massachusetts’ and the FLSA’s overtime requirements pursuant to the respective exemptions for learned professionals. See 29 U.S.C. § 213(a)(1); M.G.L. c. 150, § 1A(3). A closer look at how these exemptions are applied and by courts reveals that many who perform low-level document review are entitled to overtime.

The FLSA exempts from its overtime requirements “any employee employed in a bona fide . . . professional capacity[.]” 29 U.S.C. § 213(a)(1). However, for an employee to fit in this exemption, they must be paid a salary. For most professions, an employee must be paid a salary of at least $684 per week to fall within the exemption. 29 C.F.R. § 541.300. Another requirement of the exemption is that an employee’s primary duty must require either “knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized instruction” or “invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor.” 29 C.F.R. § 541.300(a)(2). Alternatively, employees who hold a valid law license and are “actually engaged in the practice of law” automatically fall within the learned professional exemption of 29 U.S.C. § 213(a)(1) regardless of whether they are paid a salary in accordance with 29 C.F.R. § 541.300. See 29 U.S.C. § 541.304(d). The Massachusetts learned professional overtime exemption’s language is nearly identical to the FLSA’s, and it has largely been interpreted to mirror the FLSA exemption’s reach.

Accordingly, if you are an unlicensed law school graduate performing document review work for hourly pay, you are entitled to overtime pay for all hours worked in excess of forty per week. Because you are unlicensed and not paid a salary, you are a nonexempt employee under the FLSA.

If you are a licensed attorney performing document review work on an hourly basis, a more complicated analysis is required: Whether you fall within the exemption depends on whether the work you perform constitutes “the practice of law.” See 29 C.F.R. § 541.304(a)(1). According to the United States Court of Appeals for the Second Circuit, document review does not constitute the practice of law where the employee is merely applying criteria developed by someone else, with no room for the exercise of independent judgment.

In Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, the plaintiff was a licensed attorney whose alleged responsibilities were limited to “(a) looking at documents to see what search terms, if any, appeared in the documents, (b) marking those documents into the categories predetermined by Defendants, and (c) at times drawing black boxes to redact portions of certain documents based on specific protocols that Defendants provided.” Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, 620 F. App’x 37, 40 (2d Cir. 2015). The Second Circuit explained that plaintiff was only exempt from the FLSA’s overtime requirements if he was “engaged in the practice of law” under the laws of North Carolina, where plaintiff performed his document review work. The court found that, like most other states, North Carolina law required “the exercise of at least a modicum of independent legal judgment” for an activity to constitute the practice of law. The court went on to hold that because plaintiff alleged that “he performed document review under such tight constraints that he exercised no legal judgment whatsoever”—effectively providing “services that a machine could have provided”—he stated a claim for unpaid overtime under the FLSA that was not barred by the 29 U.S.C. § 213(a)(1) exemption. Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, 620 F. App’x 37, 45 (2d Cir. 2015).

While the question has yet to be squarely addressed by any Massachusetts courts, there is reason to believe that courts in this Commonwealth would come to the same conclusion as the Second Circuit. See Real Est. Bar Ass’n for Massachusetts, Inc. v. Nat’l Real Est. Info. Servs., 459 Mass. 512, 525–26 (2011) (explaining that activities which “do not themselves require the provision of legal advice or legal opinions, or the application of legal judgment to meet the individual needs of a client” do not “constitute[] the practice of law.”). Notably, the damages for unpaid overtime under Massachusetts law are substantial: three times the overtime wages you should have been paid, plus attorneys’ fees and the costs of litigation. M.G.L. c. 149, § 150.

If you have performed document review work in excess of forty hours per week without receiving overtime pay within the last three years, you may have a valuable claim for unpaid wages. We evaluate cases confidentially and at no cost to you. You can reach us by phone at (617) 338-9400, by email at [email protected], or by filling out the form below.

Ride share driver in car using the rideshare app in mobile phone. New taxi ride request from customer in smartphone application.

Wage Claims for Uber and Lyft Drivers

August 13, 2021/in Overtime, Wage/by competenow

Recent litigation in Massachusetts has focused on whether rideshare drivers for companies such as Lyft and Uber are misclassified as independent. In the case of Cunningham v. Lyft, Inc., No. 1:19-cv-11974-IT, 2020 WL 2616302 (D. Mass. May 22, 2020) a Massachusetts federal judge recently ruled that that the defendant rideshare company, in this case Lyft, likely misclassified its drivers as independent contractors instead of employees under the Massachusetts independent contractor law. This is a preliminary ruling based on the judge’s view of the likelihood of success. The court held that Lyft would be unlikely to carry its burden of proving independent contractor status for its drivers.

Under the Massachusetts Independent Contractor statute, a worker is presumed to be an employee unless the company hiring the worker establishes all three of the following:

(1) that the worker is free from control and direction in connection with the performance of their work, both under the applicable contract and in fact; and

(2) that the worker performs work outside the usual course of the business of the company; and

(3) the worker is customarily engaged in independently established trade, occupation, profession or business of the same nature as that involved in the service performed.

M.G.L. c. 149, § 148B. The defendant company has the duty of proving that all of the above three factors are true for a worker to be an independent contractor instead of an employee.

The second prong of this test is especially difficult for a rideshare company to establish. As the judge in the Lyft case noted, in determining whether the services provided are outside a company’s usual course of business, two things matter: (1) the nature of the services performed by the worker, and (2) what is the usual course of business of the company. With respect to the second question, the court concluded that:

“Based on the record in front of the court, the court finds a substantial likelihood of success on the merits that, despite Lyft’s careful self-labeling, the realities of Lyft’s busines – where riders pay Lyft for rides – encompasses the transportation of rights. The ‘realities’ of Lyft’s business are no more merely ‘connecting’ riders and drivers than a grocery store’s business is merely connecting shoppers and food producers, or a car repair shop’s business is merely connecting car owners and mechanics”

Cunningham v. Lyft, Inc., at 10. The court recognized that Lyft’s revenue is directly contingent on how much drivers drive; therefore, drivers are not merely incidental to Lyft’s business. In other words, Lyft could not continue as a company without its drivers.

The main takeaway from the District Court’s decision in Cunningham v. Lyft, Inc. is that rideshare drivers for companies such as Lyft and Uber have strong misclassification claims under the law of Massachusetts.

The damages for a misclassification claim can be significant. A worker that is misclassified as an independent contractor can recover all of the wages and benefits that an employee is entitled to, such as overtime wages and mileage reimbursements.

We Can Help

If you have driven for a rideshare company, such as Uber or Lyft, within the last three years, feel free to get in touch. You may have a valuable misclassification claim.

We evaluate cases confidentially and at no cost. You can reach us at (617) 338-9400, [email protected], or via this free wage case review.

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Case Report: Conclusion of Six Flags Unpaid Overtime Class Action

July 21, 2021/in Class Action, Overtime/by competenow

Our firm is pleased to announce the conclusion of the class action case we brought against Six Flags New England on behalf of thousands of seasonal employees. After extensive litigation, the Suffolk Superior Court recently approved a settlement which resulted in a $4 million fund to compensate seasonal workers for unpaid overtime. In addition to significant overtime distributions to workers, unclaimed funds will be distributed to the Community Legal Aid of Springfield, Massachusetts, a legal aid organization located close to where a majority of Six Flags’ seasonal employees lived.

These cases are only possible when employees come forward and raise concerns about their employer’s compensation practices. The Six Flags case began with two employees contacting our firm and then serving as class representatives in the case. In addition to receiving overtime payments, each of the class representatives was awarded an additional $15,000 for their service in representing the class.

Governor Baker Attempts to Take Away Earned Overtime

September 20, 2019/in Overtime/by competenow

UPDATED November 7, 2019: Due to an impressive level of pushback from Massachusetts workers, the provisions in the Baker budget that would have deprived commission-only workers of their earned overtime were removed during deliberations in the Massachusetts legislature. Two key takeaways from this: (1) your calls, emails and letters to your state legislators matter, keep them up, you can find your legislators here; (2) those calls and emails are really going to matter this winter and spring of 2019-2020 because the Massachusetts legislature created a commission to study whether or not the industry should going to get what it wants, a reduction in overtime rights for commission-only and other Massachusetts workers. That commission must file a report by the first day of March, 2020. Please make your views known to your Massachusetts state legislators, and we’re optimistic we can prevail. Updates will be posted here.

Original Article, posted September 20, 2019:

In September, Governor Baker introduced a supplemental budget bill meant to retroactively take away earned overtime from car salespeople and other commission-only workers who work overtime. And the Governor goes even further than that, seeking to strengthen employers’ hand in overtime disputes by creating new defenses to all overtime claims. If this bill is enacted into law, it will have sweeping and harmful consequences for the middle-class in Massachusetts.

Baker’s proposed changes to the law were tucked away in a supplementary budget normally meant to settle the state’s books before end of the year (like modifying the snow removal budget). Notably, the Governor did not mention employees or overtime in his press release for the supplemental budget. For Massachusetts employees, Governor Baker’s bill would do three critical things:

Retroactively eliminates Sunday pay and overtime protections for commissioned employees, slashing key protections that have been in place for decades;
Enable employers to manipulate the administrative process to create new defenses to the wage laws, which have traditionally been construed strictly so that workers get paid their earned wages; and
Extract lawfully earned wages out of Massachusetts citizens’ pockets by retroactively classifying them as exempt under the Wage Act, Overtime Laws and Blue Laws.

If the bill is passed with these provisions, millions of dollars in overtime and Sunday pay, owed to thousands of hard-working Massachusetts residents, will instead go back to the businesses making these proposals.

The May 2019 Supreme Judicial Court issued its decision in Sullivan v. Sleepy’s LLC, SJC-12542, ruling that the overtime law, prior caselaw, and administrative regulations have all required and continue to require that employers make separate and additional overtime and Sunday pay for non-exempt sales employees, even if they are paid on a commission-only basis. Department of Labor regulations made this requirement abundantly clear back in 2015, when the DLS promulgated the following regulatory language: “Whether a nonexempt employee is paid on an hourly, piece work, salary, or any other basis, such payments shall not serve to compensate the employee for any portion of the overtime rate for hours worked over 40 in a work week.” 454 Code. Mass. Regs. 27.03(3). The language presented in the budget bill represents a wholesale upending of the SJC’s decision confirming that the existing legal requirements require that employers pay commissioned employees overtime and Sunday pay.

The Governor’s allies have argued that the proposed changes to the law would merely bring Massachusetts law in line with Federal law. However, this sidesteps a key fact: Through the legislative process, workers in Massachusetts have won additional rights that do not exist in, say, Florida or Iowa, so matching Massachusetts law to federal law result if those rights and benefits being lost. And dramatically so here, where the thousands of workers have already earned wages that may be retroactively taken away with a stroke of a pen.

This story is ongoing as of October 3, 2019.

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Case Report: Massachusetts Superior Court Certifies Car Sales Employee Class Action

July 25, 2019/in Class Action, Overtime/by competenow

On July 23, 2019, the Massachusetts Superior Court for Plymouth County certified a class of sales employees in Speakman v. Sullivan Bros. Nissan, Inc., et al., Case No. 16-00165, an unpaid wage class action. Our law firm was appointed as class counsel for the employees.

In our motion for class certification, we argued that the employees had suffered similarly due to two different violations of the Massachusetts Wage Act:

Employees worked more than 40 hours in a workweek and were not paid overtime wages for those overtime hours.
Employees received pay stubs that did not list their actual hours worked.

The defendants opposed the motion, but the judge agreed with the employees and certified an Overtime Class and a Pay Slips Class.

If you worked for Sullivan Brothers between February 2013 and the present, or if you are an employee at a different company facing similar issues, feel free to contact us.

Learn more about a wage or overtime class action.

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Six Flags Overtime Decision

June 26, 2019/in Class Action, Overtime/by competenow

On June 20, 2019, the Massachusetts Superior Court for Suffolk County issued a major decision regarding the rights of amusement park workers to overtime pay.

We represent a class of approximately 10,000 seasonal Six Flags New England workers in a case for unpaid overtime. The Court issued a decision last week granting this class of workers summary judgment on their claims for 2015, 2017, and 2018. The Court decided in Six Flags favor for the years 2013, 2014, and 2016. Summary judgment is a procedure that the Court can use to decide a case that only hinges on a legal interpretation when the parties agree on the material facts.

In this case, Six Flags claimed an exemption under the Overtime Law for amusement parks that do not operate more than 150 days in a year. We argued that Six Flags routinely operates more than 150 days in a year and therefore did not meet its burden to prove an entitlement to the exemption.

Crucial to the Court’s decision were the days in 2017 and 2018 during which Six Flags operated “Holiday in the Park,” a Christmas-themed version of the park’s normal activities. While the park claimed that Holiday in the Park was an attraction separate from the park’s normal activities, we argued and the Court agreed that all Holiday in the Park days counted towards the operating day limit, pushing 2017 and 2018 past the amusement park exemption threshold.

Six Flags also argued that it should be permitted to count some operating days as “partial days” for the purposes of keeping the total at 150 or fewer days, but the Court disagreed stating, “the statutory exemption says nothing about counting hours, or treating shorter days as less than a calendar day.”. The Court therefore denied Six Flags the exemption for 2015, while upholding it for 2013-2014 and 2016.

This case began in early 2016, so we are pleased to have finally secured this victory on behalf of thousands of park employees who work hundreds of hours of overtime for the park without the benefit of overtime pay for their labor. You can read the full decision here:

Six Flags Summary Judgment Order Download

Feel free to contact us if you work in excess of 40 hours a week and are not paid overtime. An overtime exemption could apply to your work, but not every employer exemption is valid.

See the conclusion of this case here

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Overtime for Commission-Only Employees

May 9, 2019/in Overtime/by competenow

On May 8, 2019, the Massachusetts Supreme Judicial Court issued a major decision guaranteeing overtime to employees who are paid on a commission-only basis. The case is Sullivan v. Sleepy’s LLC. The SJC was considering whether salespeople who receive only commissions and a draw and no other salary are eligible for overtime and Sunday premium pay.

The case was brought by salespeople at Sleepy’s, a national chain of mattress stores, who were paid a daily draw of $125 and any sales commissions above that amount. They did not receive any extra pay for working overtime or on Sundays, and they argued that they were eligible for both.

Sleepy’s did not dispute that the overtime statute applied to its salespeople. Instead, it maintained that if you took the salespeople’s take-home pay (again, made up only of the draw and commissions) and divided it by the number of hours they worked, their effective hourly rate was at least the minimum wage for straight time and at least 1.5 times the minimum wage for overtime hours worked. The employees were, in effect, already receiving premium pay as part of their regular pay, according to Sleepy’s argument. The company relied on two opinion letters by the Massachusetts Department of Labor Standards from 2003 and 2009.

This reliance was misplaced, because as the SJC reminded us, the wage and hour laws do not allow employers to “retroactively reallocate and credit payments made to fulfill one set of wage obligations against separate and independent obligations.” In other words, an employer cannot use one wage obligation (to pay commissions) to cover another one (to pay overtime).

If employers could credit commission and draw payments against their overtime obligations, it would undermine the chief purposes of the overtime law: to discourage long work hours (so that employees can have more personal and family time), to encourage employers to hire more workers (to avoid paying the overtime premium), and to reward employees who do work overtime hours with extra pay. The interpretation of the law advocated by Sleepy’s – whereby it did not have to pay extra money when employees worked overtime – undercut each of these purposes, so the SJC rejected it.

The SJC’s decision in Sleepy’s will be very important for overtime cases. We have several cases on behalf of employees who are paid on a 100 percent commission basis, must work far more than 40 hours a week, but receive no additional compensation beyond commissions and draws. Those cases will be strengthened by this decision. Feel free to contact us if you work more than 40 hours in some workweeks but only get paid commission, no overtime — or if you work in retail, and work on Sundays, but get paid nothing beyond your commissions.

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Supreme Judicial Court Issues Ruling on Agricultural Overtime Pay

March 15, 2019/in Overtime/by competenow

Today the Massachusetts Supreme Judicial Court issued an important decision in favor of agricultural workers. The case is Arias-Villano et al. v. Chang & Sons Enterprises, Inc. which was brought on behalf of workers of a company farming and distributing bean sprouts. The key question in the case was whether the workers were entitled to overtime pay for their overtime hours worked.

While the Superior Court had decided in favor of the defendants, determining that the workers fell under the agricultural exemption and therefore could not receive overtime, the SJC, which was reviewing the case on appeal, overruled this decision.

This agricultural exemption applied to employees “engaged in agriculture and farming on a farm,” and so the key issue here, as SJC’s slip opinion underlined, was “the meaning of the phrase ‘agriculture and farming’”. To answer this question, the SJC turned to the legal definition of these terms, as established by M.G.L. c. 151, § 2: “labor on a farm and the growing and harvesting of agricultural, floricultural and horticultural commodities.”

This definition, the SJC pointed out, “does not include postharvesting activities.” This was essential to the case, because the plaintiffs “were not involved in the growing operations” of the beansprouts, “but instead cleaned, inspected, sorted, weighed, and packaged” them, as well as cleaning the facility and discarding waste. This work, the SJC wrote, “does not fall within the scope of the statute.” And, it pointed out, the history of the minimum wage and overtime statutes indicates that the agricultural exemption was meant to be applied narrowly, as here.

The SJC remanded the case to the Superior Court, granting the plaintiffs’ motion for summary judgment and overruling the grant of the defendants’ motion.

This is a big win for agricultural workers when it comes to wage law in Massachusetts. We are likely to see many more cases brought on behalf of workers like these who were involved in “postharvesting activities” rather than in the literal farming of a crop. The case means that these workers, who worked as many as seventy hours a week, and others like them logging hundreds of hours a month in the agricultural industry, can receive the overtime pay they have earned.

Agricultural Overtime Pay

If you are an agricultural worker engaged in “postharvesting activities” who is not being paid overtime rates for your overtime hours worked, feel free to reach out to us.

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Case Report: Massachusetts Superior Court Certifies Home Health Aide Class Action

March 6, 2019/in Class Action, Overtime, Wage/by competenow

On February 25, 2019, the Massachusetts Superior Court for Suffolk County certified three classes of home health aides in Portillo, et al., v. Compassionate Homecare Inc., et al., Case No. 17-0283A, an unpaid wage class action. Our law firm was appointed as class counsel for the employees.

In our motion for class certification, we argued that the employees had suffered similarly due to three different violations of the Massachusetts Wage Act:

Employees worked more than 40 hours in a workweek and were not paid overtime wages for those overtime hours.
Employees were not paid wages for the time between client appointments during the workday, or reimbursed for transportation expenses.
Employees were not paid for all of their hours worked on the date of their termination.

The defendants opposed the motion, but the judge agreed with the employees and certified an Overtime Class, a Travel Class, and a Lay-Off Class.

If you worked for Compassionate Homecare between January 2011 and the present, or if you are an employee at a different company facing similar issues, feel free to contact us.

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Overtime Rights for Hotel Workers

October 28, 2018/in Overtime/by competenow

Under Massachusetts law, individuals employed “in a hotel, motel, motor court or like establishment” are exempt from overtime, meaning that no matter what the worker does and no matter how many hours they work, they are not entitled to overtime under state law. However, companies here in Massachusetts (and in all other states) must also comply with federal law. The federal Fair Labor Standards Act (“FLSA”) contains no exemption to overtime for hotel and motel workers, and such workers are entitled to overtime premium wages for all hours worked in excess of 40 in a week, provided that they or their employer is covered by the FLSA.

Not all businesses in the United States are covered by the federal FLSA. Some small, local businesses are outside the coverage of the federal law. What is the difference between those businesses that are covered by federal overtime law and those that are not? (In this article I am writing about hotels and motels, so I’ll use those terms, but this same rule applies for other businesses). First, when a hotel or motel has more than $500,000 in annual revenues and has at least two employees engaged in commerce, it is a so-called “enterprise” and all of its employees are entitled to overtime, unless otherwise exempt. If a hotel or motel has multiple has multiple locations, you must add together the revenues from each location to determine if the business as a whole sells more than $500,000 per year.

Even if the hotel or motel is very small and is not an “enterprise,” if an individual worker engages in interstate commerce or produces goods for interstate commerce, that individual will be entitled to overtime pay for work in excess of 40 per week.

If you are a hotel or motel worker not being paid overtime wages for overtime work, feel free to reach out to us, and we will evaluate your case at no charge.

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Wage Class Action Certified in Massachusetts Superior Court

September 15, 2017/in Class Action, Overtime, Wage/by competenow

On September 13, 2017, the Massachusetts Superior Court for Suffolk County certified a class action against Helping Hands Company, Inc., a provider of home care services in Massachusetts. Escorbor v. Helping Hands Co., Inc, C.A. No. 15-2053-D. (Suffolk Sup. Crt. 2017) (Wilkins, J.). Our firm was appointed class counsel. The case is for the unpaid wages and expenses of home care aides who travel between clients’ homes without pay during the workday. The class certification motion was vigorously contested and the decision is notable because the Court affirmed several important concepts for workers in Massachusetts.

The plaintiffs’ theory of liability controls at the class certification stage.
The Massachusetts Wage Act provides an independent statutory basis for class actions. Here, the class satisfied the traditional Rule 23 requirements, but in another case where, for example, traditional numerosity wasn’t satisfied, the statutory basis for class actions, which only requires that employees be “similarly situated,” might be utilized.
The failure of an employer to keep track of work time–required by state statute and regulation–may warrant an injunction in favor of a class that might require, as a remedy, an employer to reconstruct time records.
An employer cannot get a credit for a wage that is due and owing by pointing to another payment that was meant for another purpose.
Variance in damages among class members does not prevent the certification of a class.
The Wage Act favors class actions because, in part, they help employees get paid wages without antagonizing an employer, i.e. only one employee has to stick her neck out for the the whole group.

The court also wrote that, “During motion practice and in oral arguments, the Court has observed first-hand the adequacy and competence of class counsel,” id. at 10, which was gratifying to read. The case continues, but now as a class action. I am sure that each side is weighing their options.

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Case Report: Mickevich v Fine Finish, Inc.

April 26, 2017/in Class Action, Overtime/by competenow

Yesterday, the Massachusetts Superior Court for Middlesex County issued a final approval order in one of our wage and hour class actions. This was a small class action under the Massachusetts Overtime Law involving just 33 individuals. The key allegation in the case was that a group of cabinet makers were improperly classified as exempt from overtime, had worked overtime, but had not been paid time and a half for that overtime work.

We were able to reach a negotiated settlement agreement with the defendant. Class actions often result in a settlement if both defense and plaintiffs’ counsel are well-versed in the substantive law and are able to handicap a range of possible results for their clients. It is important for defense counsel to do this for their clients because their clients are often inexperienced in wage and hour class action litigation and an early compromise agreement allows a defendant to continue doing business without the distraction and stress of ongoing litigation, to reduce their exposure to a sum certain, and to avoid the possible ruinous consequences of paying treble damages, plaintiffs’ attorneys’ fees, and their own defense costs incurred through trial. The defendants in this case were well-represented by experienced counsel, allowing the parties to engage in rational negotiations that resulted in a settlement of $215,000 fairly early in the litigation, more than two times the single damages calculated in the case.

Attorney Raven Moeslinger ably handled the plaintiffs’ case for our firm.

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