The law most often violated by employers, and the cause of the most complaints by workers, is the Fair Labor Standards Act (FLSA). Teamsters, like other unionized workers, are often unaware of the FLSA because the protections it offers (minimum wages, the 40-hour workweek and overtime pay among them) are dealt with in the contract.
Yet Teamster employers violate the FLSA with a vengeance, to the tune of millions of dollars in lost pay.
One of the largest violators is UPS, where workers are pressured into working off the clock, either before their workday or through their unpaid meal breaks. Many other Teamster employers do the same. Even 15 minutes a day adds up when multiplied by dozens, hundreds or thousands of workers. And if that free time was overtime we are talking about time and one half.
When it comes to this kind of violation:
- employers must pay for all work they knew about or should have known about.
- employees do not need documentation to bring an off-the-clock work suit.
- employees and their unions cannot waive a worker’s right to be paid for hours worked.
Pre-Shift and Post-Shift Unpaid Work
In many industries employers simply don’t pay for pre-production and post-production work.
The giant meatpacker Tyson/IBP, for example, routinely has paid workers only for time cutting meat on the production line, with pre-production, meal break and post-production work left unpaid. Workers needed to collect safety equipment, maintain the equipment and wash the equipment on their own time. IBP is now appealing a $3.1 million judgement against it in a class action victory won by TDU members at its Pasco,Wash., plant.
Failure to Pay Overtime Wages
The FLSA and many state statutes give workers the right to be paid overtime, typically for work in excess of 40 hours per week. There are dozens of overtime exemptions, many of which were handed out to lobbyists as if they were Halloween candy. Don’t accept your employer’s word on whether you are exempt. The law is complicated and changing.
Route Sales and Overtime
There are various exemptions that apply to outside salesmen and commission-paid retail employees. However, exemption defenses that were once valid may fail as industries change. For example, many bakery delivery drivers used to be exempt as outside salesmen. Much of their work involved selling to mom-and-pop stores on their routes. These days, however, with about four supermarket chains dominating in the United States, the drivers tend to be primarily drivers and stockers, rather than sales personnel. Pepsi, Coke, Frito-Lay, ITT Baking, Entenmanns and other companies are finding that they need to pay overtime premium pay to their drivers. (See below.)
Salary, Piece Work and Commission
More than a few employers say they do not have to pay overtime to workers if they are paid salary, piece rate, commission or some other non-hourly rate of pay. This is often wrong. Salary, commission or other non-hourly pay never, by itself, relieves the employer from the obligation to pay overtime. The employer must rely on an overtime exemption, although some exemptions are related to the method of compensation. For example, salaried executives, administrators and professionals are overtime exempt, as are commission-paid retail employees whose hourly rate works out to more than one-and-a-half times the minimum wage.
In Personette v UPS approximately 1,100 WashingtonState package car drivers won $12 million in a case involving unpaid work off the clock, mostly during their one-hour lunch.
4,000 Illinois UPS package car drivers won $7.25 million in back pay (and would have won much more but old-guard Teamsters joined the trucking industry in obtaining the repeal of state law overtime rights of truck drivers!).
Local 556 production workers at IBP won a $3.1 million FLSA and state law judgment, which both sides have appealed to the Ninth Circuit Court of Appeals. Many workers will recover $3,000 to $ 11,000 if the trial court’s judgment is affirmed on appeal.
New Jersey Pepsi Teamsters won big last year when the New Jersey Supreme Court affirmed a lower court ruling that route drivers were not sales personnel and therefore not exempt from overtime provisions. Over 400 Local 125 members will be awarded a multi-million dollar settlement.
Nonunion workers are also using the FLSA and state law to take on major corporations. Two thousand Taco Bell workers recovered $3 million dollars in Washington State for off-the-clock work following a jury verdict that the company cheated workers. Wal-Mart faces 39 class action lawsuits involving hundreds of thousands of workers seeking tens of millions of dollars. The company reportedly paid $50 million two years ago to settle an off-the-clock lawsuit covering 69,000 workers in Colorado, and it recently settled for $500,000 a case involving 120 workers in Gallup,N.M.
Using FLSA and State Laws
The Wage and Hours Division of the U.S. Department of Labor enforces the FLSA, so complaints can be filed with that office. You also have the right to file your own lawsuit, using your own attorney. Many states have their own wage and hour laws, some of which are stronger than the federal law on some points.
The FLSA and state laws make the employer pay your attorney if you are successful, so an experienced attorney should be willing to represent you without charge if you have a good claim, even if it is only for a few hundred or thousand dollars.
Workers who are overtime exempt under the FLSA may have valid overtime claims under more favorable state laws. The UPS lawsuits have been brought under state laws that lacked the FLSA exemption for drivers subject to the Federal Motor Carrier Safety Act.
It is critical to get advice from an experienced wage and hour attorney before filing suit.
Many wage and hour cases are well-suited for class action treatment. A small group of employees and/or former employees can get court approval to represent all other workers who have similar claims. Employers do not like this. If you have an FLSA claim, only those workers who sign written consents can be included in the case. If you have a state claim, often all workers with similar claims will be in the class action, unless they file exclusion forms with the court.
For further information, contact TDU. Special thanks to attorney David Mark of Seattle who has been involved in several of the cases referenced in this article. Mark will lead a workshop on this topic at the TDU Convention in October.