Employers that are subject to the federal Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., are obligated to pay their non-exempt employees minimum wage and overtime. The FLSA allows plaintiffs alleging wage and hour violations to file a lawsuit on behalf of all similarly situated employees and former employees, known as a “collective action.” This is similar to a class action under Rule 23 of the Federal Rules of Civil Procedure, but it differs in several important ways. A federal court granted conditional certification last year to a collective action filed against a national restaurant chain. Turner v. Chipotle Mexican Grill, Inc., No. 1:14-cv-02612, mem. order (D. Col., Aug. 21, 2015). By the end of the summer of 2016, more than 10,000 of the defendant’s employees had reportedly joined the lawsuit.
The FLSA requires employers to pay minimum wage, which is currently $7.25 per hour at the federal level. Many states, including New Jersey, have a higher minimum wage, but $7.25 per hour is the amount that workers can enforce under this particular statute. Overtime work, basically defined as work performed over 40 hours in a calendar week, is entitled to 1.5 times the employee’s usual rate of pay. For a worker earning minimum wage, this would be $10.88 per hour. A common FLSA wage and hour violation involves requiring employees to perform duties at times when they are not “on the clock.” This might include time spent changing into and out of uniforms or work clothes and performing other tasks before or after the employer requires employees to clock in or out.
Individual wage and hour claims might not seem particularly significant at first glance, in the sense that an employee might be losing a fraction of an hour’s worth of pay for one shift. These sorts of practices often recur on a daily basis, however, over long periods of time, and the numbers can add up very quickly and become a very significant amount for an individual worker. It still might not be enough to make an individual legal claim worth the cost of both time and money. This is where FLSA collective actions help workers in this sort of situation.
The FLSA states that an employer is liable to all employees affected by wage and hour violations. 29 U.S.C. § 216(b). A collective action allows all employees with the same basic claim against their employer to pool their claims into a single lawsuit. In this way, it is similar to a class action under Rule 23. A key difference, however, is that claimants are not part of a collective action until they affirmatively “opt in,” whereas many class actions automatically include all class members who do not “opt out.”
The plaintiffs in the Turner case allege that their employer routinely required them to work extra, unpaid hours by making them “punch out” before they were actually permitted to leave. Many of the defendant’s restaurant locations had an 11:30 p.m. closing time, according to the lawsuit, and employees were automatically clocked out at 12:30 a.m. If they were not finished with closing procedures by that time, however, they had to stay longer, but they were not paid for the extra time. Some plaintiffs reportedly estimate that, over the course of several years, they worked hundreds or even thousands of unpaid hours.
If you need to speak to a wage law attorney in New Jersey or New York, contact the Resnick Law Group online, at 973-781-1204, or at 646-867-7997.
More Blog Posts:
Proposed Law Would Protect Rights of Workers in the “Gig Economy”, The New Jersey Employment Law Firm Blog, October 13, 2016
New Jersey Governor Vetoes Minimum Wage Bill, The New Jersey Employment Law Firm Blog, September 22, 2016
Department of Labor Expands Eligibility for Overtime Pay Under the FLSA, The New Jersey Employment Law Firm Blog, August 12, 2016