Blanchard & Walker PLLC : Workers on a “Day-Rate” Pay System are Still Owed Overtime Pay.

“Day-rate” regulations under the Fair Labor Standards Act (“FLSA”) are very clear: “day-rate” workers” are entitled to additional pay for hours worked over forty in a week. The Department of Labor Regulation, 29 C.F.R. § 778.112, requires that when employees paid on a day-rate work more than forty hours in a week, their hourly rate is calculated by totaling all money received in the workweek and dividing by the total hours actually worked in that week. Such employees are then entitled to an overtime half-time premium for all hours worked over forty that week.

In one recently-filed Blanchard & Walker case, a client worked in construction and demolition of merchandizing fixtures for big box stores, such as AutoZone and Meijer, but she was paid only a straight day rate for each day worked.  She worked more than ten hours a day, six or seven days a week without the overtime pay required under the law. Unfortunately, this type of payroll fraud is very common.

The U.S. Secretary of Labor filed a similar case in Michigan last year, and the Federal District Court for the Eastern District of Michigan easily disposed of the restaurant owner’s defenses and granted Summary Judgment for the DOL for “day-rate” restaurant workers:

Although the FLSA does not require employers to compensate their employees on an hourly basis, “the overtime compensation due to employees must be computed on the basis of the hourly rate derived therefrom, and therefore, it is necessary to compute the regular hourly rate of such employees during each workweek.” 29 C.F.R. § 778.109. The “regular rate” will necessarily fluctuate when an employee’s hours vary. 29 C.F.R. § 778.108. In this case, Defendants paid their employees a flat day rate, regardless of the hours worked. The Secretary calculated overtime due by performing a mathematical computation to determine the “regular rate.” The Secretary used the total remuneration as the dividend, and the hours worked as the divisor, to determine the “regular rate” as the quotient. Using this calculation, the Secretary determined that Defendants failed to pay overtime at one and a half times the regular rate for any of their employees. Defendants have failed to show that the Secretary’s calculations do not comport with the strictures of the FLSA. Accordingly, Defendants’ pay practices violate the FLSA’s requirement for overtime compensation under 29 U.S.C. § 207(a) and the Secretary is entitled to summary judgment.

Acosta v. Min & Kim Inc., No. 15-CV-14310, 2018 U.S. Dist. LEXIS 9507, at *18-19 (E.D. Mich. Jan. 22, 2018)

Unfortunately, many employers violate this wage law hoping they won’t get caught on this type of payroll fraud…  and even if they do get caught, hoping that it will cost less to settle a lawsuit and pay off one plaintiff rather than changing their system and paying all workers what they are legally owed. 

At Blanchard & Walker, we fight back for the overtime right of day-rate workers. In one recently-filed FLSA collective action in the Eastern District of Michigan, the lead plaintiff came forward with allegations for herself and other similarly situated employees who also worked weeks, sometimes sixty or seventy hours, but only received a flat “day-rate” for each day worked.  Blanchard & Walker lawyers continue to investigate and talk to day-rate workers across transportation, service, and construction industries.

Blanchard & Walker PLLC: Federal Lawsuit Alleges “Day-Rate” Workers Deprived of Overtime Pay for 70+ Hour Weeks

Display Assembly Workers Deprived of Overtime Pay

“Day-rate” regulations under the Fair Labor Standards Act (FLSA) are clear: “day-rate workers,” such as retail display assembly workers, are owed an additional half-time pay for hours worked over 40 in a week.

Blanchard & Walker PLLC Payroll Fraud Case Pending: Plaintiff worked doing construction and demolition of merchandizing fixtures for DisplayMax aka FixtureMax, servicing big box stores such as AutoZone and Meijer. Even though she worked more than ten hours a day, six or seven days a week, she was paid only a straight day-rate for each day worked—without the overtime pay required by law. “Day-rate” regulations under the Fair Labor Standards Act (FLSA) are very clear: “day-rate” workers are entitled to an additional half-time pay for hours worked over forty in a week. Plaintiff in the federal court lawsuit alleges she is owed the FLSA-mandated half-time premium for all overtime hours, and brought the case so that all similarly situated employees of DisplayMax and FixtureMax will have an opportunity to opt-in and recover the overtime pay legally owed to them. Blanchard & Walker lawyers are currently taking calls with impacted workers to investigate the scope of the pay practices at issue.

Bonus reading: The Case for Good Jobs

Blanchard & Walker Law PLLC: Ruling Provides Warning for Mandatory Handbook Restrictions

Administrative ruling sends a warning shot for overreaching and oppressive employment contracts.

Blanchard & Walker clients win in case tried under the National Labor Relations Act. Trial verdict provides a warning for employers seeking to impose workplace communication restrictions.

The Motor City Pawn Brokers ruling confirms that oppressive handbook requirements banning everything from communications with former employees to social media postings violate the National Labor Relations Act, and firing people for [Read more…]

ACLU Calls Charges Against Michigan Senate Candidate Unconstitutional/UPDATE: Charges Dismissed

 reports on the latest court filing in the prosecution of Anuja Rajendra for political speech;  Blanchard & Walker Attorneys David Blanchard and Frances Hollander on the brief.

When the law overreaches into constitutionally protected speech, ACLU cooperating attorneys step forward. [Read more…]

Blanchard & Walker PLLC: Department of Justice Announces $84.5 Million Qui Tam Lawsuit Settlement With Beaumont Hospital

The Department of Justice’s healthcare fraud settlement with William H. Beaumont Hospital is among the largest against any Michigan hospital.  The settlement resolves claims that the health care giant of southeastern Michigan maintained improper referral relationships with doctors and other medical facilities, cultivated a culture that enticed physician referrals with kickbacks, and engaged in other conduct constituting Medicare and Medicaid fraud.

[Read more…]

Class Action Certified in Hungry Howie’s Pizza Delivery Driver Lawsuit

Pizza Drivers claim franchises take an illegal  slice out of every driver’s pay

Under-reimbursement of pizza delivery drivers violates state and federal minimum wage laws – that’s the allegation in a Blanchard & Walker PLLC case recently certified for class action status in the Eastern District of Michigan (read the order here).  [Read more…]

Legal Work on the Cutting Edge of Employment and Civil Rights Issues

Blanchard & Walker, PLLC, currently has paralegal and administrative support opportunities available in our Ann Arbor office. To apply, please mail a paper resume and cover letter c/o BW Hiring Committee. Blanchard & Walker, PLLC is an equal opportunity employer. [Read more…]

Michigan Settlement Reached in Unemployment “Robo-Fraud” Lawsuit: More than $20 Million Returned to Victims

Blanchard & Walker has obtained a far-reaching settlement with the state of Michigan regarding the past, present, and future handling of unemployment claims in Michigan.  We have fought this fight for nearly two years on behalf of our clients – the UAW, Detroit’s Sugar Law Center for Economic and Social Justice, individual UIA claimants – and on behalf of all Michigan workers.  Today, the Court confirmed an unprecedented settlement and restructuring agreement with the State.  Read it here: Zynda ORD 2017-02-02 Robo Fraud Settlement and Dismissal.   Here are some of the things that we have achieved today on behalf of Michigan UIA claimants:  [Read more…]

Federal Court Order Halts Collection Activity on Unemployment Robo-Fraud Cases

A Federal Court Order issued January 11 will halt income tax garnishments and other collection activity for unemployment “robo-fraud” victims until there is an individualized staff review and the fraud finding is confirmed. The Order, entered by stipulation on January 11, 2017, is a huge victory for our clients and for all those affected by faulty robo-fraud determinations from October 2013 to August 2015. [Read more…]

“Non-compete agreements narrow the employment options for an estimated one in five workers in the United States.” 

 

Michigan non-compete contract

White House Aims to Lift the Curse of Overreaching Non-Compete Agreements

Responding to the economic impact of unnecessary and overreaching non-compete agreements – and even recent examples of employers colluding to limit job options of employees – the White House last week announced a new push to “Spur Competition in the Labor Market and Accelerate Wage Growth.” It’s about time.

 

Wow! a National Push to Reform Non-Compete Policies Across States? How Did I Miss it?

It would be understandable if you missed the announcement. The White House announcement slipped from media attention amid the frenzy in the last weeks of the presidential election and the excitement of the World Series’ return to Wrigley Field. How could the legal policy shift on an issue of labor economics compete for media attention? [Read more…]