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Why may I be entitled to overtime from
ResCare / Southern Home? |
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We believe you are entitled to unpaid overtime for the time you
spent driving from one client's house to another client's house.
Drive time that occurs during the work day is typically considered
"work time."
It is our understanding, and the experience of the Plaintiffs in
this case, that as a residential home care provider who worked for
ResCare / Southern Home, more than 20% of the time spent working for clients
is spent in general household work. If that is the case, then
you would not be an exempt employee and you should have been paid
overtime for the drive time.
This unpaid time may amount to thousands of dollars in unpaid
wages for you and others.
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But everyone I have ever worked for
in this business has failed to pay overtime. |
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We believe that the practice of violating the FLSA is widespread
in this particular industry. The FLSA is over 60 years old and through
the years many companies have lost focus on the law's requirements.
They consider that residential companionship service employees are exempt. That
is not the law if the facts are as we understand them, and many companies are not in compliance and have
been sued for overtime violations.
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How do I bring an FLSA lawsuit to get
paid for my overtime? |
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To join this case against Defendants you only need to
complete and return the Consent Form.
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What do I get if I win? |
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A successful case will result in an employee getting paid unpaid
wages or overtime. Successful plaintiffs are entitled to back pay
for all unpaid overtime, usually beginning two years before the
complaint is filed. In most cases, they are also entitled to double
the amount of back pay. This is called "liquidated damages," and
is essentially paid instead of interest on the unpaid wages. The FLSA also requires the employer to reimburse out of pocket litigation
expenses and pay an additional attorneys' fee award.
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Won't my employer just fire me if I
sue them for unpaid wages or overtime? |
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Not legally and not without risking a substantial penalty. The
FLSA specifically provides that it is "unlawful for any person ...
to discharge or in any other manner discriminate against any employee
because such employee has filed any complaint or instituted any
or caused to be instituted any proceeding under or related to this
Act, or has testified or is about to testify in any such proceeding."
This statute has "teeth," and is interpreted broadly in favor of
employees. Recently an employee was awarded punitive damages against
an employer who retaliated.
An employer who retaliates or discriminates against an employee
in violation of this statute is potentially subject to fines or
even criminal prosecution, and the affected employee is entitled
to "legal or equitable relief ... including without limitation employment,
reinstatement, promotion, and the payment of wages lost and an additional
equal amount" plus attorneys' fees and court costs. Punitive damages
are available in appropriate cases, and "anti-retaliation" cases
may be brought against individuals as well as institutional employers.
In addition to "firing" cases, retaliation has been found when
employers blacklisted employees who made FLSA claims, refused to
hire applicants who had made FLSA claims at other jobs, fired relatives,
reduced job responsibilities, assigned employees to unpopular job
duties or shifts, disciplined employees out of proportion to past
disciplinary practices, reduced performance evaluations, and declined
to recommend "normal" raises.
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Do I have to pay the company's legal
fees if they lose the case? |
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No (except in the unlikely event a court were to decide the suit
was "frivolous"). However, if a person loses the case, the court
may make a plaintiff pay for the "costs" of the lawsuit which are
such things as the charge for copies of depositions, etc.
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How long do I have to bring an FLSA
claim? |
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The FLSA normally permits recovery for work performed beginning
two years before a complaint is filed in court (and continuing "forward"
until the case is resolved). An additional year's recovery period
is permitted if the employer "knew" that its employment and pay
practices violated the FLSA, but "disregarded" these obligations.
Nothing but the filing of a legal complaint in court "stops the
clock." (A complaint to the employer, or the Department of Labor,
does not stop the clock)
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What actual financial costs or risks
are there for me to bring an FLSA case? |
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If you return the Consent Form, we will represent you on a
contingency basis and front all litigation expenses. We only
recover our fees and costs if we win the case or reach a settlement
with the other side.
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How do I pay my lawyers to bring an
FLSA case? |
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If you return the Consent Form, we will represent you on a
contingency basis and front all litigation expenses. We only
recover our fees and costs if we win the case or reach a settlement
with the other side. You can call us to get a copy of the
contingency fee contract or to ask us any questions about it.
A copy of the contract signed by Geddis is attached
here.
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How long does an FLSA case take? |
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It is difficult to estimate the time for a case to be resolved,
but we expect this case to be resolved or reach trial within the
next 12- 18 months.
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Does it matter that I never reported
the time or asked for overtime? |
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No. It is the employer's obligation to control the work.
If an employer does not wish work to be performed it must prohibit
it. "Failure to ask" for overtime is usually not a defense for an
employer in an FLSA case. An exception might be if the employer
has a requirement that generally all time be reported and actually
has enforced it, or if an employee's failure to report means that
the employer did not know the work was being performed.
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What are liquidated damages? |
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These are damages an employee is entitled to receive if he or she
brings a successful claim. The amount of damages are defined by
the FLSA law as being double the unpaid wages due to the employee.
Thus, if an employee is awarded $10,000 in unpaid wages, he or she
may be entitled to get an additional $10,000 as liquidated damages,
bringing the total recover to $20,000. These damages are essentially
awarded in stead of lost interest. An employer can avoid paying
liquidated damages only if it shows that it acted in good faith
and that it had a reasonable basis to believe its practices complied
with the law. "Good faith" has a special meaning under the FLSA,
and requires that employers have made specific investigation into
the application of the FLSA to the particular situation.
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What is the FLSA? |
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The FLSA is the Fair Labor Standards Act. It is the federal law
that governs payment of the minimum wage and payments for overtime.
This is the law that requires is that most employees must be paid
time and one-half for all "hours worked" over 40 hours in a work
week (a defined 7-day period).
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What is "overtime?" |
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For most employees, overtime is all the hours a person works over
40 in one work week. Overtime is supposed to be paid at time-and-a-half
of an employee's regular rate of pay. For example if you make $10
per hour, then you should be paid $15 per hour for all hours you
work over 40 in a work week.
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Does it matter that I did not "put in
for" or seek prior approval for the time spent performing work activities?
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No. If your employer knew you were working overtime or
reasonably should have known it, then you are entitled
to be paid for the overtime. Many employers will tell employees
that they will not pay for overtime that is not approved. However,
if they know employees are working overtime, even if it is not approved,
they are supposed to pay the employees for the overtime work.
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What activities are considered "work?"
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The courts have held that work time under the FLSA includes all
time spent performing job-related activities which (a) genuinely
benefit the employer, (b) which the employer "knows or has reason
to believe" are being performed by an employee, and (c) which the
employer does not prohibit the employee from performing. These can
include activities performed during "off-the-clock" time, at the
job site or elsewhere, whether "voluntary" or not.
This would include time spent traveling from residence to residence
within a day and any other activities you engaged in for the benefit of
the employer.
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I already get overtime. Does the FLSA
apply to me? |
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Maybe. Many employees put in "off the clock time" for which they
are entitled to be paid. The FLSA defines "work" very broadly, and
sometimes employers have failed to count all the hours an employee
actually works. Failing to allow you to track your travel
time may violate the FLSA.
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How do I prove the amount of time spent
doing off-the-clock compensable activities? |
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The employer is supposed to maintain records of the time spent
by employees performing compensable activities. If an employer does
not maintain the required records, the employee is entitled to recover
based on a good faith, reasonable and realistic estimate
of the time he or she worked. In other words, you get to estimate
how many overtime hours you worked. The employer will have the burden
to challenge the reasonableness of the employee's estimates. Thus,
as long as the employee's word is reasonable, what he or she estimates
will count as accurate.
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I get "compensatory time"
("Comp. Time") instead of cash for overtime. Is this allowed?
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No, if you work for an employer other than the government. Only
public sector (government) employees are permitted to receive comp.
time. Comp. time instead of cash for FLSA overtime is not generally
permitted in the private sector. A public sector employer may pay
(at least some) FLSA overtime with comp. time.
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At what rate must overtime be paid?
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Overtime must be paid at time and one-half the "regular hourly
rate" for every hour over an employee works over 40 hours (or the
applicable threshold) in a workweek. (For employees whose normal
pay is not an "hourly" rate, their regular rate requires converting
pay to an hourly equivalent.) Longevity pay, shift differentials,
and similar nondiscretionary additional wages should generally be
included in calculating the FLSA overtime rate.
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Do all "similarly situated" employees
have to participate in an FLSA suit if one employee decides to sue?
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No. FLSA cases are not "class actions." An employee need not bring
or join an FLSA suit if he or she does not want to. However, similarly
situated employees are permitted to join an existing FLSA case,
and this is a common procedure. If an employee does not join an
existing FLSA suit he or she will not be entitled to recover any
money as a result of the suit.
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I got a severance agreement and/or signed
a waiver saying I would not sue the company. Do I still have any rights?
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Yes. Private employers may not ask their employees to sign away
their rights to minimum wages and overtime pay, even in the context
of a waiver. The rationale for this is simple. If employers could
break the law by getting their employees to agree to it, then those
conditions would be required before the employee would be hired.
This would allow the employer to avoid the FLSA's obligations. Only
waivers supervised by the DOL or obtained in a private lawsuit can
eliminate your rights.
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Where do I get more information? |
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By contacting us at 866-949-1400.
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