November 30, 2012

Labor Department Serves The Christmas Light Co. & Its Owner With Holiday Season FLSA Lawsuit

November 30, 2012

The U.S. Department of Labor (Labor Department) kicked off the 2013 Holiday Season by filing a lawsuit against The Christmas Light Co. Inc. and owner William F. Rathburn to recover approximately $240,881 in wages and an additional amount in liquidated damages under the Fair Labor Standards Act (FLSA) on behalf of 233 employees who installed and removed lights for the company. Yet another in a growing list of lawsuits against U.S. employers accused of failing to comply with FLSA minimum wage and overtime rules, the lawsuit reflects the significant risks that U.S. businesses risk by failing to properly track and pay employees covered by the FLSA as required.

Holiday Season FLSA Suit Casts Shadow Over The Christmas Light Co. Inc.

According to the Labor Department, an investigation by its Dallas Wage and Hour Division office found that The Christmas Light Co. Inc. violated the FLSA by failing to pay 233 installers and removers the minimum and overtime wages and keep records required by law. The complaint filed in the Northern District of Texas seeks back wages and liquidated damages of nearly $500,000 and an injunction against future violations of the FLSA.

The Labor Department says that its investigation determined that the company violated the FLSA by paying non-exempt workers a flat rate for installing and removing Christmas lights without regard to the number of hours the employees had worked. Investigators also found that in most cases employees were paid “straight time” rather than overtime at time and one-half their regular rates for hours worked over 40 in a week, as required. Additionally, the Labor Department found that the company failed to keeprecords required by the FLSA.

The lawsuit against The Christmas Light Co. Inc. spotlights a growing emphasis by the Labor Department on investigation and enforcement of employer violations of the FLSA. “The Labor Department holds employers accountable when they do not properly pay their workers,” said Cynthia Watson, regional administrator for the Wage and Hour Division in the Southwest. “Failing to pay minimum and overtime wages is unacceptable. Such behavior robs workers of their rightful wages and undercuts those hardworking and conscientious employers who obey the law. This lawsuit demonstrates that the department will use all enforcement tools available, including litigation, to recover workers’ wages and ensure a level playing field for law-abiding employers.”

FLSA Violations Generally Costly; Enforcement Rising

The enforcement record of the Labor Department confirms that the Labor Department’s suit against the Christmas Light Co. Inc. lawsuit is reflective of a strong enforcement commitment targeting U.S. employers using aggressive worker classification or other pay practices to avoid paying minimum wage or overtime to workers. Under the Obama Administration, DOL officials have made it a priority to enforce overtime, record keeping, worker classification and other wage and hour law requirements. See e.g., Boston Furs Sued For $1M For Violations Of Fair Labor Standards Act; Record $2.3 Millh ion+ Backpay Order; Minimum Wage, Overtime Risks Highlighted By Labor Department Strike Force Targeting Residential Care & Group Homes; Review & Strengthen Defensibility of Existing Worker Classification Practices In Light of Rising Congressional & Regulatory Scrutiny; 250 New Investigators, Renewed DOL Enforcement Emphasis Signal Rising Wage & Hour Risks For Employers; Quest Diagnostics, Inc. To Pay $688,000 In Overtime Backpay. In an effort to further promote compliance and enforcement of these rules, the Labor Department is using smart phone applications, social media and a host of other new tools to educate and recruit workers in its effort to find and prosecute violators. See, e.g. New Employee Smart Phone App New Tool In Labor Department’s Aggressive Wage & Hour Law Enforcement Campaign Against Restaurant & Other Employers. As a result of these effort, employers violating the FLSA now face heightened risk of enforcement from both the Labor Department and private litigation.

Employers Should Strengthen Practices For Defensibility

To minimize exposure under the FLSA, employers should review and document the defensibility of their existing practices for classifying and compensating workers under existing Federal and state wage and hour laws and take other actions to minimize their potential liability under applicable wages and hour laws. Steps advisable as part of this process include, but are not necessarily limited to:

Audit of each position current classified as exempt to assess its continued sustainability and to develop documentation justifying that characterization;
Audit characterization of workers obtained from staffing, employee leasing, independent contractor and other arrangements and implement contractual and other oversight arrangements to minimize risks that these relationships could create if workers are recharacterized as employed by the employer receiving these services;
Review the characterization of on-call and other time demands placed on employees to confirm that all compensable time is properly identified, tracked, documented, compensated and reported;
Review of existing practices for tracking compensable hours and paying non-exempt employees for compliance with applicable regulations and to identify opportunities to minimize costs and liabilities arising out of the regulatory mandates;
If the audit raises questions about the appropriateness of the classification of an employee as exempt, self-initiation of proper corrective action after consultation with qualified legal counsel;
Review of existing documentation and record keeping practices for hourly employees;
Exploration of available options and alternatives for calculating required wage payments to non-exempt employees; and
Re-engineering of work rules and other practices to minimize costs and liabilities as appropriate in light of the regulations and enforcement exposures.

Because of the potentially significant liability exposure, employers generally will want to consult with qualified legal counsel before starting their risk assessment and assess risks and claims within the scope of attorney-client privilege to help protect the ability to claim attorney-client privilege or other evidentiary protections to help shelter conversations or certain other sensitive risk activities from discovery under the rules of evidence.

For Help With Investigations, Policy Updates Or Other Needs

If you need help in conducting a risk assessment of or responding to an IRS, DOL, Justice Department, or other federal or state agencies or other private plaintiff or other legal challenges to your organization’s existing workforce classification or other labor and employment, compliance, employee benefit or compensation practices, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469) 767-8872 .

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 23 years of work helping employers; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit and management policies and practices. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer often has worked, extensively on these and other workforce and performance related matters. She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For more information about Ms. Stamer and her experience or to get access to other publications by Ms. Stamer see here or contact Ms. Stamer directly.

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Posted by Cynthia Marcotte Stamer