EMPLOYMENT CLASS & COLLECTIVE ACTIONS
EQUAL PAY ACT
FALSE CLAIMS ACT -
Unpaid Wage and Overtime
State and federal laws protect individuals from a variety of unlawful pay practices. These pay practices include failing to pay for all hours worked, failing to pay the proper minimum wage, and failing to pay overtime. An employer may fail to pay for all hours worked in a number of ways, such as failing to pay for off-the-clockwork, improperly deducting breaks less than 30 minutes, or failing to pay for breaks when the employee is not completely relieved of duty. If an employer fails to pay for all hours worked, an employee may also be receiving less than minimum wage or inadequate overtime compensation.
Employers may also fail to pay the appropriate minimum wage by requiring tipped employees to share their tips with customarily non-tipped employees, such as management or back-of-the-house employees (like cooks, expos, dishwashers, or salad/dessert preparers), or by failing to give proper notice to employees about paying them the tipped minimum wage. Employers may also fail to comply with the law by deducting wages for uniforms, breakage, customer walk-outs, or meals.
Employers also fail to pay proper minimum wage or overtime when they improperly classify an employee as salaried (such as with computer support technicians or assistant managers) or as an independent contractor (such as with cable installation technicians or dancers). An individual must meet specific requirements to be considered a salaried-exempt employee or an independent contractor under the law. If the individual does not meet these specific requirements, then they may be entitled to recover unpaid wages and overtime.
Employers can also run afoul of state and federal law by making improper deductions from an employee’s paycheck or, in some states, by failing to reimburse for employee expenses such as mileage.
Burr & Smith has extensive experience in representing employees in these types of claims. Please take the opportunity to review our representative cases on behalf of workers:
Servers, bartenders, and other tipped employees
Deliz v. Miller’s Ale House, Inc.: Class action on behalf of servers and bartenders who worked at Miller’s Ale House restaurants in Florida who alleged they were not permitted to retain all of their tips and were required to share tips with employees called expeditors whose inclusion in the tip pool was alleged to be in violation of Article X, Section 24 of the Florida Constitution. Plaintiffs obtained a resolution of the case for $7.5 million.
Roberts et al. v. The TJX Companies et al. (d/b/a TJ Maxx, HomeGoods, and Marshalls): Class and collective action on behalf of assistant store managers alleging they were misclassified as exempt and were denied overtime compensation for hours worked in excess of forty hours in a work week during their formal training period, which lasted 4 to 5 weeks. Plaintiffs obtained a settlement of $4.75 million on behalf of the settlement classes.
Prior v. W and O, Inc. (Rustic Inn): Class action on behalf of servers alleging they were not permitted to retain all their tips and were required to share tips with employees called “pantry workers” who are not customarily tipped employees, in violation of Article X, Section 24 of the Florida Constitution. Successful resolutions of the claims were obtained with a settlement of $647,000.00 on behalf of the class.
Cirillo v. Larry’s of Bonita et al. (d/b/a Pelican Larry’s and Rusty’s Raw Bar and Grill): Class action on behalf of bartenders who worked at Pelican Larry’s and Rusty’s Raw Bar and Grill restaurants in Florida who alleged they were not permitted to retain all of their tips and were required to share tips with kitchen employees, including cooks; were required to pay for walk-outs and draw shortages; and were not given adequate notice of the tip credit provisions as required by law in violation of the Florida Constitution. Plaintiffs obtained a settlement of $578,000 on behalf of the class.
Freitas et al. v. Talk of the Town Restaurants, Inc. et al. d/b/a Charley’s Steakhouse: Class action on behalf of servers and bartenders who worked at Charley’s Steakhouse in Orlando, Florida who alleged they were not permitted to retain all of their tips and were required to share tips with non-wait staff employees, including salad preparers. Plaintiffs obtained a settlement of $405,000 on behalf of the class.
Frizzell et al. v. Big River Breweries, Inc. et al.: Class action on behalf of wait staff employees who worked at Big River Grille & Brewing Works in Orlando, Florida who alleged they were not permitted to retain all of their tips and were required to share tips with non-wait staff employees who worked as expeditors; and were not given adequate notice of the tip credit provisions as required by law in violation of the Florida Constitution. Plaintiffs obtained a settlement of $375,000 on behalf of the class.
Customer account or sales representatives
Warren et al. v. Cook Sales, Inc.: Plaintiffs filed a collective action under the FLSA on behalf of themselves and other sales representatives who sold and rented portable sheds for Cook Sales. Plaintiffs alleged they and other sales representatives routinely worked more than 40 hours per week and Cook Sales denied them overtime pay of one and one-half times their regular rates of pay for hours worked in excess of 40. On behalf of themselves and 61 opt-in plaintiffs, Plaintiffs obtained a settlement of $495,000.
Hickman v. Applied Card Systems: Collective action on behalf of individuals employed with Applied Card Systems, Inc. in its Boca Raton, Florida facility as customer service representatives for alleged failure to pay overtime compensation in violation of the Fair Labor Standards Act. Conditional certification of the class was granted and the case resolved soon thereafter.
Angione v. PSS Worldwide Medical: Collective action for unpaid minimum and overtime pay on behalf of drivers, inventory managers, purchasers, operations leaders, trainees and accounts receivable representatives who worked for the nationwide medical supply company.
Technical support workers
Hayes v. Document Storage Systems, Inc.: Collective action on behalf of Plaintiffs and other Support Specialists who were employed by Document Storage Systems, Inc. alleging they were improperly classified as exempt employees, and were denied overtime compensation in violation of federal law (the Fair Labor Standards Act). On September 22, 2015, the Court granted that notice of the lawsuit be mailed and emailed to putative class members who include Support Specialists, Technical Support Specialists, and Application Support Specialists who worked for DSS since September 21, 2012.
Polycarpe v. E & S Landscaping Services, Inc.: Litigating Fair Labor Standards Act claims for unpaid overtime and retaliation against E & S Landscaping Services. The issue of enterprise coverage was contested in this matter and was favorably resolved in the plaintiffs’ favor in Polycarpe v. E & S Landscaping Service, Inc., 616 F.3d 1217 (11th Cir. 2010). Burr & Smith represented the Plaintiffs as appellate counsel. In Polycarpe, the Eleventh Circuit clarified the factors by which to determine whether an employee is covered by the Fair Labor Standards Act under the enterprise coverage prong of the FLSA. As the Eleventh Circuit explained that, in the context of enterprise coverage, “[w]hether an item counts as ‘materials’ . . . will depend on two things: 1) whether, in the context of its use, the item fits within the ordinary definition of ‘materials’ under the FLSA [i.e., the item is a tool or other article necessary for doing or making something] and 2) whether the item is being used commercially in the employer’s business [i.e. the item must have a significant connection with the employer’s commercial activity].” 616 F.3d at 1226-26.
Retail sales associates and assistant managers
Marshall v. Advanced Comfort, Inc. and Dormia, Inc.: Collective action for unpaid overtime. Plaintiffs alleged retail sales employees were misclassified as exempt and denied overtime compensation. Plaintiffs obtained a favorable result on behalf of retail sales associates who sold mattresses.
Applegate-Walton v. Olan Mills: Collective and class action on behalf of Studio Photographers for alleged violations of the Fair Labor Standards Act including failure to pay overtime compensation for work performed prior to the start of their shift, during scheduled lunch periods, and after the end of their shift. Plaintiffs obtained a settlement of $3 million on behalf of the class.
Saunders v. Ace Mortgage Funding; Thorpe v. Ace Mortgage Funding, Inc.: Plaintiffs successfully litigated a multi-state FLSA collective action claim on behalf of loan officers and loan processing officers for alleged minimum wage and overtime violation resolving the case for almost $4 million.
Cable installers and technicians
Thomas v. Broadband Interactive, Inc.: Plaintiffs brought a collective action for unpaid overtime and minimum wages for their work as cable installers. Plaintiffs alleged they were misclassified as independent contractors and were instead employees of the company that must be paid overtime compensation and minimum wages under the Fair Labor Standards Act.
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