FAIR LABOR STANDARDS ACT
FLSA litigation is a major focus of this law firm. Nolan Klein has recently taught a class for lawyers, approved by more than ten state bar associations for legal education credit, on how to represent clients in FLSA lawsuits.
An employee who brings a lawsuit under the FLSA for unpaid overtime compensation and liquidated damages bears the initial burden of proving that she performed the work for which she was not properly compensated.
In order to prevail on an FLSA overtime claim, and to obtain liquidated damages, a plaintiff must prove that she:
Worked overtime without compensation
Her employer knew or should have known of the overtime work.
It is incumbent upon the employee to allege not only that she worked in excess of the statutory work week, but the actual numbers worked in excess thereof.
A plaintiff must also establish employee status. Independent contractors are not entitled to overtime pay. In determining whether an individual is an employee or an independent contractor for purposes of FLSA coverage, courts have approved a hybrid test, which considers the extent of the employer’s right to control the means and manner of the worker’s performance.
Regarding tipped employees, an employer is entitled to count some of the tips toward the employee’s wage. There are two requirements that an employer must meet in order to claim a tip credit: (1) he must inform the employee of the tip credit; and (2) all tips received by the employee must be retained by employees. Employers do not have to explain the tip credit to the employees in detail, as long as they inform them that it exists.
The FLSA also allows for retaliation claims. Employers faced with FLSA lawsuits should be careful not to retaliate against the employee who is making the claim.
A case of FLSA retaliation requires a demonstration by the plaintiff that (1) she engaged in activity protected under the FLSA; (2) she subsequently suffered adverse action by the employer; and (3) a causal connection exists between the employee’s activity and the adverse action. In demonstrating causation, the plaintiff must prove that the adverse action would not have been taken “but for” assertion of the FLSA claim.
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