Are You Getting Paid for All that You Do?
(Especially K-9 officers)
An article by John R. Thomas, Brent Coon & Associates LAW FIRM P.C. in the TMPA Magazine
John@bcoonlaw.com or for more information www.legallawenforcement.com
Fair Labor Standards Act (FLSA)
This Federal Act was enacted June 15, 1938 for the purpose of improving “labor conditions detrimental to the maintenance of the minimum standard of living necessary for the health, efficiency and general well being of workers.” 29 U.S.C. @ 202. This is the Act that (1.) Requires payment of a minimum wage; (2.) requires payment of overtime wages to covered employees for hours worked in excess of 40 per week; (3.) mandates equal pay for males and females doing equal work; (4.) restrict employment of child labor; and (5.) requires record keeping with respect to wages and hours.
You may ask yourself at this point, how does that affect me and why am I reading this boring stuff? I will tell you. Many of you are required to perform certain duties, acts etc. such as taking care of a K-9 or horse on personal time, or you are required to come to work and then dress a certain way before going on the clock. It may be that your job title has you classified as salary (exempt), when in fact under the FLSA, your position should actually be hourly, entitling you to back pay for all of the overtime you worked. What, the department has no records of all of the hours that you worked because you were salary? I am sure that you will be able to come up with what you contend your hours were for the last two, and in some cases where the employer’s conduct is “willful”, three years of pay. There is a presumption that your figures are correct because under the record keeping requirements of the FLSA, your employer should have had you classified correctly in the first place and been keeping track of all of your hours worked. It is hard for them to argue that your figures are wrong if they have to admit that they did not keep a record of them.
And that’s not all! An employer who violates the FLSA is liable for the unpaid wages and “an additional equal amount as liquidated damages.” 29 U.S.C. @ 216. This is qualified by the employer’s good faith defense which basically means that if the court finds that the employer’s act or omission giving rise to the action was in good faith and that they thought that they were acting lawfully, the court can use its discretion and not award the double damages. Most courts recognize a strong presumption in favor of doubling the award and most employers face an uphill battle proving the “good faith” defense.
Actions for unpaid wages must usually be filed within two years. The exception to this is where “a cause of action arising out of a willful violation may be commenced within three years.” 29 U.S.C. @255(a). To prove a willful violation of the FLSA a plaintiff must show that the employer “knew or showed reckless disregard” for whether the conduct was prohibited by the FLSA. Reich Bay, Inc. 23 F3rd 110, 117 (5 th Cir. 1994). If the court does find a willful violation, they may award the back wages for the three years and then award the liquidated damages of an additional three years pay, plus attorney’s fees.
FLSA actions can be brought by whole groups or classes and decisions made in the case can be based on a few of the claimants in the class (representatives), and may be applied to the whole class. A good example of this is Bull v. U.S., 68 Fed. Cl. 212 (Fed. Cl. Sept. 27, 2005; Clarified by: Bull v. U.S. 68 Fed. Cl. 276 (Fed. Cl. Oct. 14, 2005). Bull concerned “off the clock” claims of a nationwide group of employees of the Department of Homeland Security. Bull was tried with representative testimony from six plaintiffs – three chosen by the plaintiffs and three chosen by the defendant. The plaintiffs prevailed on many of their issues. The plaintiffs were awarded back pay and liquidated damages for two years on some theories and for the full three years on other theories where there was a finding of a “willful” violation. The decision was affirmed on appeal and paved the way for trial results to be projected across the class. The facts were that these were canine officers who were forced to take home dirty training towels and launder them on their own time a certain way without pay “off-the-clock.” Since there were no washers and dryers at the workplace, the employer was unable to explain how clean training towels were available at the workplace if the officers were not performing this work “off-the-clock.” This case garnered several million dollars in back pay and liquidated damages for the plaintiffs.
WORRIED ABOUT RETALIATION, TAKE HEART!
Most of you would not consider doing anything that might get you fired, or at a minimum, demoted, abused etc. The FLSA contains a strict anti-retaliation section which provides that it is unlawful “to discharge or in any manner to discriminate against any employee because such employee has filed any complaint or caused to be instituted any proceeding under or related to this Act, or has testified, or is about to testify in any proceeding, or has served or is about to serve on an industry committee.” 29 U.S.C. @215(a) (3). Retaliation claims under the Act are analyzed using a three step approach. The plaintiff must show that he or she (1.) engaged in protected activity; (2.) was subjected to adverse employment action following the protected activity; and that there was (3.) a causal connection between the activity and the adverse action.” Conner v. Celanese Ltd., 428 F. Supp. 628, 638 (S.D. Tex 2006); Martinez v. Bohls, 361 F. Supp.2d 608, 617 (W.D. Tex 2005). According to the Supreme Court it might be said that a retaliatory action in the FLSA setting is any action that “might have dissuaded a reasonable worker from making or supporting a wage claim under the FLSA.” The courts have generally interpreted these protections broadly so as to encourage employees to speak up without fear. Informal complaints sent to supervisors in e-mails about unequal pay have been held to be protected under the FLSA.
While the Act is obviously more complex than what is laid out in this article, you can see that should you believe that you are receiving unequal pay, lack of overtime pay caused by an incorrect classification as an exempt or salaried employee, lack of pay for “off-the-clock” work, or any other wage, salary or employment issue, it behooves you to seek legal counsel and know your rights. FSLA claims paid out over 180.7 million dollars in 2007 alone. If your employer underpaid you by only $100 a week and their conduct was found to be “willful,” you could be looking at $30,000 plus attorneys fees. With the way overtime pay adds up, this number could easily be more. We know that many K-9 officers around the state and the country are either under-paid or not paid at all for their care of these hard working animals. If you believe that you are not getting fair pay for a fair days work, go to our website at www.legallawenforcement.com.
