Thomas McCutcheon

Q: I work for a chain retail store. They have me working 50 to 60 hours a week. They promoted me to assistant manager and put me on a salary. I now make less than I did when I was paid hourly and received overtime. I don’t think this is legal. Should I call a lawyer?

Ashley, Sheffield, AL

A: We have seen some court rulings in the last few years that have been favorable towards workers that have been classified as “executive exempt” workers to avoid overtime pay. These cases fall under the Fair Labor Standards Act. The FLSA is a federal law that regulates the legal rate of pay for various types of workers.

We review cases where employees have been classified as managerial but their work is similar to what they did as an hourly worker. When store managers or department managers are reclassified as “executive exempt” they are not paid overtime. However, many times their primary job duties do not involve management and this is simply a false classification in order to avoid payment of overtime wages.

There are also decisions concerning companies that hire workers as “independent contractors”. These workers are hired to avoid payment of payroll taxes, workers compensation premiums, unemployment insurance as well as overtime.

The factors that we look for when determining whether or not a worker is truly an independent contractor is how much control they have over how the job is done. Considerations are when the work is done and who says when the work is done. Other factors are who furnishes the tools and other supplies, and whether or not there is a right to fire anyone on the job site.

Certain employers also require employees to work “off the clock”. This is also a violation of the FLSA.

Misclassification of employees occurs fairly frequently and if you are making less money for the same job then this is a case we would like to review. Typically, the courts award theble (triple) damages.

Buckle up, wash your hands, and as always your referrals are appreciated! 256-764-0112

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