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In February 2021, the continental United States faced a massive blizzard which affected several states unaccustomed to heavy snowfall. States in the southern half of the United States such as Texas and Arkansas were particularly impacted. The blizzard resulted in business closures and work stoppages, leaving many employees unable to report to work.

This loss of income can be as catastrophic as the blizzard itself. Employees, however, may be entitled to pay even if they were unable to report to work or be as productive as they usually would be. The Fair Labor Standards Act and corresponding state wage-and-hour laws require employers to pay their employees at least a minimum wage and overtime for all hours worked over forty per workweek. It also allows for certain categories of employees to be paid via salary without regard to minimum wage and overtime provided the employer complies with certain requirements, including limits on salary deductions.

For employees paid by the hour, they must only be paid for work performed. If an employee’s business is closed and work is physically performed on-site, then said employee is not entitled to any wages because no work was performed. They may be entitled to unemployment insurance payments depending on their state’s program. Several states allow for unemployment benefits if a “natural disaster” caused the employee to miss work.  

Some hourly employees, however, have shifted to working from home in the wake of the COVID-19 pandemic. Those employees who did perform work — even if less productive due to the unique issues caused by the blizzard such as intermittent internet access — must be paid for all hours worked. The FLSA requires employees to be paid for all work, even if significantly less productive than the norm.

For employees paid via salary who are “exempt” from overtime and minimum wage requirements, employers may not make deductions from their salary if the business was closed for less than a full workweek. Performing any work during the workweek triggers an employer’s requirement to pay a full salary even if closed for the remainder of the workweek. The employee’s absence from work is considered to be due to the employer’s closure.

In this situation, the Department of Labor allows employers to substitute Paid Time Off or other paid leave for hours which were unworked. If the employee does not have enough accrued leave to pay a full salary, however, the employee must still receive his or her salary without any deductions.

If an employer’s business is open, it may only make deductions from an exempt employee’s salary if he or she misses a full day of work for personal reasons. “Personal reasons” includes an inability to report for work due to road closures, inclement weather conditions, and the like. Employees who report to work — or work remotely — must be paid their full salary even if only working a partial workday. If an employee only works a partial workday due to personal reasons, the employer may substitute accrued leave for the missed work time. Absent accrued leave, the employer must still refrain from making deductions against the employee’s salary.

Do you feel that your employer has improperly paid you during the 2021 blizzard? If so, call us at (855) 825-5916 to learn about your legal rights.

Because of the COVID-19 epidemic sweeping through the country, millions of people found themselves filing for unemployment benefits for the first time in their lives.

Among the millions who have filed or will file for unemployment, some will be denied benefits (and some may not even seek benefits) because they were classified as an “independent contractor.”

Companies often push the line in classifying workers as independent contractors because there are several benefits. The company avoids payroll taxes, unemployment insurance, and workers compensation benefits. Independent contractors also are not protected by minimum wage and overtime laws.

In 2019, the Arkansas General Assembly passed the “Empower Independent Contractors Act of 2019,” which sets the standard for determining the status of an individual as an employee or independent contractor for wages, taxation, workers’ compensation, and other issues. The Act adopts the IRS’s 20-factor test, which focuses on three general categories: (1) behavioral control; (2) financial control; and (3) relationship of the parties. No single factor is controlling, and the individual factors are weighted in significance to the facts in a particular case. That said, courts often treat the alleged employer’s right to control the manner right to control the manner in which the work is performed as the most important consideration.

Despite the law, many employers treat workers as independent contractors despite maintaining almost total control over the working relationship. While calling workers “independent contractors,” business often set the work schedule, provide training, impose non-compete agreements, and tightly control the work being performed. In those instances, the worker is likely misclassified ad entitled to overtime whenever they work more than 40 hours in a workweek.

Arkansas amended its Constitution in 2016 to allow the medical use of marijuana.

The Amendment also protects employees who have a medical need for marijuana from discrimination. The Amendment specifically states that an employer may not discriminate against any employee or any person applying for employment based on their use of medical marijuana.

This means that an employer cannot offer you a job then revoke it after you test positive for marijuana on a pre-employment drug test based on your use of medical marijuana. An employer also cannot fire you when they find out you use medical marijuana to treat your medical condition.

The protections are not unlimited, however. An employee cannot use or possess medical marijuana at their workplace. Nor can an employee work while under the influence of medical marijuana. The law only protects employees who use medical marijuana to treat their conditions outside of work hours.

There are also some types of jobs that are exempt. These are known as “safety-sensitive” positions and typically involve highly dangerous conditions. Examples of these safety-sensitive positions would be jobs requiring the employee to carry a firearm, jobs that involve explosive or hazardous materials, and jobs requiring the use of heavy machinery.

The Amendment allows employers to continue drug-testing employees pursuant to a drug-free workplace policy. They may not terminate an employee or revoke a job offer based on a positive result for marijuana if that person is a qualified patient unless it involves a “safety-sensitive” position. An employee or applicant must inform the employer, testing facility staff, or the medical review officer that they are a qualified patient to be protected under the Amendment.   

Do you feel that your employer or a company you applied to work for in Arkansas has discriminated against you based on your use of medical marijuana? If so, call us at (855) 825-5916 to learn about your legal rights.

Workers are often forced to perform a substantial amount of work during unpaid "lunch" breaks. For example, health care workers are often told that they have to stay on site during the meal break that they can respond to any patient emergencies, often because the facility does not have to schedule and pay additional workers. Other workers are required to exchange and service equipment during unpaid breaks. Those workers might be entitled to additional pay for the extra work they are forced to perform.

Under the Fair Labor Standards Act, most breaks must be counted as work time because such breaks promote efficiency, safety, and boost productivity. Few workers could spend eight or more hours without at least going to the bathroom. If the break is 5 to 20 minutes long, that break time must be counted as work time.

Employers, however, are not required to pay for bona fide meal periods. To be "bona fide," the meal period must be long enough for employees to use the time effectively for their own purposes. Usually, the break must be at least 30 minutes long, and the employee must be freed from active duties. Moreover, if the employee is required to stay on call during the meal period or is frequently required to perform additional work, the employee may be entitled to be paid for the break. 

Does your employer take you off the clock for short breaks or make you work during meal periods? If so, call us at (855) 825-5916 to learn about your legal rights.

On May 26, 2016, the Arkansas Supreme Court affirmed the Sebastian County Circuit Court’s order granting summary judgment in favor of Plaintiffs. This is the first opinion interpreting the provisions of the Arkansas Minimum Wage Act. The decision is a significant win for Arkansas’s employees, providing a common sense interpretation of “work” under Arkansas law. The Court explains that employees are entitled to compensation when their employer benefits from activities the employees are required to perform. In other words, an employer cannot make its employees show up and do a task without paying for that time. This is a significant win for Arkansas' workers, and we are pleased to have been part of this important case.

Oilfield drilling and fracking companies regularly cheat employees out of wages. Employees like Fluid Engineers, Chemical Engineers, Equipment Operators, Service Supervisors, Field Hands, Coil Tube Operators, and Welders regularly work well over 40 hours per week but are not paid overtime compensation. 

Under the Fair Labor Standards Act, employees are entitled to overtime pay at one-and-a-half times their regular rate of pay for each hour worked over 40 in a workweek. Certain executive, administrative, and professional employees are exempt from this requirement, but the exemptions to the FLSA are narrowly construed to protect employees. If an employee’s primary job duty is rigging up or down, operating equipment, monitoring the drilling or fracking process, or performing manual labor, that employee is not exempt under the FLSA and must be paid overtime compensation. It does not matter whether the employee is paid a salary or bonuses -- nonexempt employees are entitled to overtime compensation when they work more than 40 hours in a workweek.

Holleman & Associates has successfully represented oilfield employees in numerous lawsuits seeking overtime pay. If you have questions or feel that you’ve been cheated out of your proper wages contact us at (855) 825-5916.

The Fair Labor Standards Act is the federal law governing wage payments. The FLSA guarantees minimum wage and overtime protections to most, but not all, workers in the United States. One of the most common exemptions is for executives. To be an exempt executive, an employee’s primary duty must be “management.” But to keep from paying overtime, employers often call some of their employees “managers” even though they spend most of their time performing labor like cooking, cleaning, and handling merchandise. When you really look at the numbers, these managers often make the same or LESS than the hourly workers and spend almost all of their time doing the exact same work.

Why is this a problem? One of the principal goals of the FLSA’s overtime provision is to encourage employers to spread work around amongst more employees, rather than make a few individuals work long hours. An employer is more likely to hire additional employees to meet its workload if it has to pay an overtime premium to existing employees. This, of course, reduces unemployment. Employers frequently use the executive exemption to avoid both hiring additional employees and paying overtime premiums. Recently, one court highlighted the tension between the executive exemption and the goals of the FLSA.

In a very important case, the United States Court of Appeals for the First Circuit vacated summary judgment in favor of an employer who classified two former Dunkin’ Donuts managers, Gassan Marzuq and Lisa Chantre, as exempt from overtime. Marzuq v. Cadete Enters., No. 14-1744, 2015 U.S. App. LEXIS 21301 (1st Cir. Dec. 9, 2015). Some of Marzuq’s and Chantre’s responsibilities included calibrating equipment to Dunkin’ Donuts specifications, keeping their stores and grounds properly maintained, training and supervising employees, and substantial paperwork. Marzuq considered himself as the person “in charge” and “the captain” of his store. But there was also evidence that Marzuq could not fulfill his duties as a manager because he spent 90% percent of his time doing the work of the crew members, such as serving customers, cleaning, and covering their shifts. Aaron Dermandy, a district manager, supervised Marzuq and Chantre. Dermandy determined staffing levels, arranged maintenance, and ordered the baked goods for the stores. He also visited each store every week and hired and fired crew members.

To determine whether an employee’s primary duty is management, courts look to four factors: (1) the relative importance of plaintiffs’ exempt and other duties; (2) the amount of time spent on exempt work; (3) freedom from direct supervision; (4) the relationship between plaintiffs’ salaries and the wages paid hourly employees for similar nonexempt work. In analyzing the Marzuq’s and Chantre’s job duties, the court focused on their inability to perform management functions because of the large amount of crew-member work that they had to perform. According to the court, this could support a finding that Marquz and Chantre’s management duties were least important. In addressing whether Marquz and Chantre had freedom from direct supervision, the court highlighted the involvement Dermandy had with the stores’ affairs. The record showed that they had little independence in running their stores.

The court also highlighted that Marzuq and Chantre actually made about the same or less than the hourly workers they supervised. The hourly employees made $8.50 to $10.70 per hour, including tips. But when considering the number of hours they worked, Marzuq made about $12.50 per hour and Chantre made about $9.00 per hour.

There are three major points to take away from this decision. First, an employee must actually have time to perform his or her management functions to be exempt, even if the employer says the manager is in charge.  Second, an employee is not exempt just because he or she is called a manager. And third, a court may compare a plaintiff’s salary based on his or her claimed hours worked to the rates of pay of hourly employees to determine whether the executive exemption applies. Overall, this is a favorable decision for employees that protects the FLSA and one of its central policies—hire employees rather than overwork them.

If you have questions about whether you are being paid correctly, please call us toll free at 1-855-825-5916.

The Fair Labor Standards Act is the federal law governing wage payments. The FLSA guarantees minimum wage and overtime protections to most, but not all, workers in the United States. Congress created an exemption from the FLSA’s overtime requirements – known as the Motor Carrier Act Exemption – for “any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service.” 29 U.S.C. 213(b)(1). But Congress also created an exception to the Motor Carrier Act Exemption for employees whose job “in whole or part” affects the safe operations of vehicles lighter than 10,000 pounds Gross Vehicle Weight Rating (except those vehicles designed to transport hazardous materials or large numbers of passengers).

In one recent case, an armored car driver was awarded unpaid overtime because she fell within the exception to the Motor Carrier Act Exemption. McMaster v. Eastern Armored Servs., 780 F.3d 167 (3d Cir. 2015). The driver spent 51% of her time driving vehicles heavier than 10,000 pounds and 49% of her time driving vehicles lighter than 10,000 pounds. She often worked more than 40 hours per week, but her employer did not pay any overtime. Even though she spent more than half her time driving heavier vehicles, the Third Circuit held that she fell within Congress’s carve out from the Motor Carrier Act Exemption and was entitled to overtime

As you can see, the FLSA can be very technical. If you have questions about whether you are being paid correctly, please call us toll free at 1-855-825-5916. 

Many home health companies classify their registered nurses (“RNs”), physical therapists (“PTs”), occupational therapists (“OTs”), and speech language pathologists (“SLPs”) as professionals exempt from the FLSA’s overtime requirements.

• One problem with this classification arises from how these clinicians are paid.  To satisfy the professional exemption, an employee must be paid on a salary or fee basis.  29 C.F.R. § 541.300(1).  If a registered nurse is classified as exempt from overtime but is not paid on a salary basis, her classification should be closely considered to see whether her manner of compensation satisfies the alternate “fee basis” requirement.  If it does not, then the nurse is eligible for overtime under the FLSA.
• The fee basis requirement is described at 29 C.F.R. § 541.605:

“An employee will be considered to be paid on a ‘fee basis’ . . . if the employee is paid an agreed sum for a single job regardless of the time required for its completion.These payments resemble piecework payments with the important distinction that generally a “fee” is paid for the kind of job that is unique rather than for a series of jobs repeated an indefinite number of times and for which payment on an identical basis is made over and over again. Payments based on the number of hours or days worked and not on the accomplishment of a given single task are not considered payments on a fee basis.”

• In particular, some home health companies pay their RNs on a “per visit basis,” paying them a certain amount for each visit they complete, as opposed to paying either a set salary or a guaranteed minimum salary with bonuses based on the number of visits completed.  For example, a per visit payment plan may work as follows:

A nurse is paid $30 per visit completed; in week 1 she completes 5 visits and is paid $150 for that week, in week 2 she completes 30 visits and is paid $900 for that week.

• There are at least two potential problems with classifying RNs, PTs, OTs, and SLPs as exempt from overtime but paying them on a per visit basis:

1.   Paying for meetings or non-visit work on an hourly basis or otherwise based on time worked:   Some employers compensate visit-related work on a “per visit” basis but compensate other work nurses complete—such as attending training and meetings or completing office administrative work—on an hourly basis or otherwise explicitly based on how much time the nurse spends doing such work.  This is sometimes called a “hybrid” compensation plan that combines fee and hourly payments, and at least two courts have concluded that they do not satisfy the requirement for exemption.

• The Sixth Circuit has held that home health nurses are not paid on a fee basis and thus are entitled to overtime if they are paid for visits on a “per visit” basis but for other work, such as meetings, on an hourly basis.  Elwell v. Univ. Hospitals Home Care Servs., 276 F.3d 832, 839 (6th Cir. 2002).

• The Northern District of Georgia recently came to a similar conclusion, holding that nurses did not satisfy the professional exemption where they were paid for visits on a per visit basis and for meetings and trainings using a duration grid that set payments based on the length of the meeting.  Rindfleisch v. Gentiva Health Servs., Inc., --- F. Supp. 2d ----, 2013 WL 4494375 (N.D. Ga. July 26, 2013)

2.   The visit payments themselves may not satisfy the “fee basis” requirement if they are themselves based on time worked:  For example, if a nurse is paid $30 for visits under 2 hours, and $60 for visits over 2 hours, there is a good argument that the payments do not qualify as “fee basis” payments because they are set based on time worked.

• The Sixth Circuit stated in Elwell that evidence that the defendant set visit payments based on the amount of time the employer thought a visit should take may present a question of material fact for the jury as to whether “per visit” payments were actually a proxy for hourly compensation and did not satisfy the fee basis test.  Elwell v. Univ. Hospitals Home Care Servs., 276 F.3d 832, 839 n.3 (6th Cir. 2002) (explaining that document showing payment for visits “was based on the hourly rate of $17.65” multiplied by the hours in the workweek and divided by the average number of visits expected to be completed per week was evidence upon a jury may infer that the per visit plan was actually a proxy for hourly payment, but was insufficient to support summary judgment for plaintiff).   

• Additionally, an RN who is paid on an hourly basis for all work is plainly not paid on a “salary or fee basis,” and so does not satisfy the professional exemption from overtime.

• The above analysis is limited to registered nurses, physical therapists, occupational therapists, and other clinicians with specialized degrees who might be classified as professionals.  Nursing aides, licenses practical nurses, and other workers in the home health industry without specialized degrees are likely to either be classified by their employer as non-exempt or as exempt under the distinct companionship/domestic service es exemption, which does not include a salary/fee basis requirement.  (The companionship exemption will be substantially limited by new DOL regulations in 2015, which will prohibit home healthcare companies from claiming this exemption.)

If you have questions or feel that you’ve been cheated out of your proper wages contact us at (855) 825-5916.

Restaurants regularly cheat tipped employees out of wages. In an effort to control labor costs, restaurants sometimes shave overtime hours or require employees to work off the clock. One of the more frequent violations is improper tip pooling.

Under the Fair Labor Standards Act, most employers are usually required to pay employees at least $7.25 per hour. Restaurants and other employers, however, can take a tip credit to satisfy their minimum wage obligation for tipped employees. To take the tip credit, the restaurant must pay a cash wage of at least $2.13 per hour and it must either: (a) allow the tipped employee to keep all of the tips; or (b) have a valid tip pooling arrangement. The restaurant also must inform its employees about the tip-credit provision of the FLSA.

Many restaurants require its servers to participate in a tip pool. Oftentimes, the servers are required to pay the restaurant a certain percentage of their gross sales at the end of each shift. Depending on what the restaurant does with this money, the tip pool may violate the FLSA.

The restaurant CANNOT require tipped employees to share tips with non-tipped employees like cooks or dishwashers. The restaurant (or its owner) also cannot participate in the pool or take money from the tip pool to fund employee-of-the-month programs. Running an illegal tip pool destroys the tip credit, and restaurants have been forced to pay millions of dollars to their servers after being caught running an illegal tip pool.

If you have questions or feel that you’ve been cheated out of your proper wages contact us at (855) 825-5916.

Common Lies The Boss Uses To Steal Your Pay and Overtime

Most workers are owed overtime for all hours worked over 40 in one week. Unless your boss can prove an exemption, you must be paid time and a half for all overtime worked.  The most common lies we see:

1. Tell the worker that because he earns a salary, he isn't entitled to overtime. Many bosses and most workers think that once you're paid on a salary basis, you lose your right to overtime pay. That isn't the case.  Unless you are exempt, you are entitled to overtime.

2. Improperly classify the worker as an 'independent contractor.' Most people paid as independent contractors are really employees. If your company controls the time, place and manner of your work; if you can't work for other companies, can't hire your own assistants, answer to company work rules and the company sets your hours, the law would probably consider you an employee. If you signed an independent contractor agreement and think you're misclassified, you are losing more than your overtime. You are also paying your company's share of employment taxes.

3. Requiring you to work 'off the clock.' Bosses that force you to clock out for lunch, even if you work through lunch or they demand you clock out and stay late. Maybe there's no time clock at all, and you're asked to sign a timesheet every week saying you worked 8 hours a day. This is your employer trying to put the lie on you. That way, if you do sue and you signed a paper or clocked in and out, they'll claim you are lying about your overtime.


4. Combine non-exempt duties. Even if you have an exempt job, some employers are trying to save money by cutting non-exempt jobs and giving those duties to exempt employees. Double the work, same pay. If your managerial job also requires you to be the receptionist, you are probably entitled to overtime pay for your non-exempt duties.


5. Expect the employees to be on-call. If you have to jump anytime there's an emergency and if you can't use your "free" time freely, you may be entitled to be paid for your time on-call. If the company says you have to stay within a certain mileage from the office, that you must return calls within a short time (such that you can't even go out and cut the grass or go to the movies if you want), or if the calls come in every 10 minutes, so that doing anything else is impossible, you are probably entitled to be paid overtime for your on-call time.


6. Give off-hours duties. This is how it works: Employers require employees to arrive at the workplace several minutes before clocking in to put on a uniform or do other prep work, have before-hours or after-hours meetings, mandatory trainings, and other duties that are off the clock. If you're in this situation, you are probably entitled to be paid for any time you are mandated to be present at work.

Truly voluntary training, such as going to an outside company to get a certification you want to increase your chances of promotion, even if the company pays for it, is probably not work time such that you're entitled to be paid. If you're told that failure to attend the training will result in some adverse consequences, it isn't voluntary.

7. Expect the workers to do work from home.  If your job requires you to answer emails, respond to texts, or otherwise work from home after you leave, you are probably entitled to be paid for those hours. No, you can't charge for time you took a shower, ate dinner, or watched "The Office," no matter how much it reminds you of your own office, but you can charge for the time you actually spent working. A recent survey by Good Technology found that most Americans do an extra 30 hours of work per month from home.


8. Tell workers to wait before clocking in.  If your employer requires you to come in, only to make you wait until they need you before you're allowed to clock in, you're probably entitled to be paid for your waiting time. If you aren't told you can leave the premises, you can't do anything else like go shopping or eat lunch, and you must be available when the work comes in, you are working. If you work in the copy room and play online checkers while waiting for the next job to come in, you're probably entitled to be paid for that time.


9. Require you to “tip pool.”  If you are a waiter/waitress it is absolutely illegal to require you to share your tips with the kitchen staff or others in the restaurant that are not normally tipped.

10. Pretends not to know workers are toiling through lunch.
Your employer may look the other way if you work through lunch or after you clock out. That doesn't excuse the employer from paying overtime. They may claim they didn't know, but if the company suffers or permits you to work extra hours, you must be paid. That's why many companies have written policies that require discipline, even termination, for failing to report all hours worked.

So you think you aren't being paid correctly, contact us immediately:

John Holleman

Holleman & Associates

1008 West Second Street

Little Rock, AR  72201

501.975.5040 LR LOCAL

855.825.5916 TOLL FREE

501.975.5043 fax

jholleman@johnholleman.net

www.hollemanandassociate.com

https://www.facebook.com/HollemanandAssociates

          Many companies fail to properly pay employees as required by law. One recent study by UCLA estimated that more than one quarter of all low-wage employees are not paid the full minimum wage.[i] Another way companies often violate the law is refusing to pay overtime to employees they call “managers.” For example, a restaurant might call some of its workers “kitchen managers” and refuse to pay overtime even though they do not supervise two or more full-time employees or play any role in managing the business. This is ILLEGAL. In order to be “exempt” from overtime, the employee must perform “exempt” job function and be paid on a salary basis.

            But even when the employee performs exempt duties, the company must pay the employee on a salary basis. To be paid on a salary basis, the employee must receive “a predetermined amount that is not subject to reduction because of variations in the quality or quantity or work performed.” Although the law allows a company to deduct when a salaried employee misses a full day of work under some circumstances, the company cannot pay the employee for a half-day of work or dock the pay of a salaried employee in any way on a day where an employee performs any work at all. If the company does this enough, it destroys the exemption and the company has to pay overtime. Other examples of improper deductions include:

• A deduction of a day's pay because the employer was closed due to inclement weather;
• A deduction of three days pay because the exempt employee was absent for jury duty;
• A deduction for a two-day absence due to a minor illness when the employer does not have a bona fide sick leave plan, policy or practice of providing wage replacement benefits; and
• A deduction for a partial day absence to attend a parent-teacher conference.

            With modern technology, most true managers are on call 24 hours a day, 7 days a week. A manager is often working – such as by reading and responding to emails by Smartphone – even when they are out of the office. If a company is docking a manager’s pay, because the manager works out of the office, it may be jeopardizing the exemption. The employee may be entitled to recover that lost pay.

            The law makes it illegal to retaliate against employees who file good-faith complaints. If you think your boss is cheating you out of the pay you deserve, give us a call.

[i] http://labor.ucla.edu/publications/reports/brokenlaws.pdf

We consistently see employees being paid and treated unfairly. Here are some things to look out for:

• Doffing and donning cases (not properly accounting for time putting on safety gear to perform the job)
• Not paying minimum wage, much less overtime, and forcing employees to work off-the-clock
• Misclassifying as “independent” contractors to avoid paying federal payroll matching
• Illegal payroll deductions for housing, food, uniforms, transportation
• Paying a “salary” to avoid paying overtime.

If you have suffered any of these abuses, call or email us today. There is absolutely no charge to talk to me or my staff. Also, remember it is against the law for your employer to punish, fire or jerk you around for complaining about improper pay.