The wage and hour lawyers at Cantrell Schuette, P.A., regularly advise and litigate the following types of high-value disputes:

Misclassification as FLSA Exemptions 

Under the FLSA, most employees must be paid at least the federal minimum wage, as well as overtime pay for all hours worked over 40 hours in a workweek. The FLSA provides an exemption to the minimum wage and overtime requirements, however, for employees who are properly classified as exempt under the executive, administrative, professional, or outside sales employee exemptions. These are known as the “white-collar” exemptions. 

Many employers and employees mistakenly believe that overtime pay is not required anytime any employee is paid a salary. That is not true. Each of the white-collar exemptions require that an employee satisfy certain job duty requirements to be properly classified as exempt. The U.S. Department of Labor (“DOL”) provides detailed guidance concerning the pay requirements and job duty requirements for each of the white-collar exemptions in its Fact Sheet #17A: Exemption for Executive, Administrative, Professional, Computer & Outside Sales Employees Under the Fair Labor Standards Act (FLSA) | U.S. Department of Labor (dol.gov). 

Independent Contractor Misclassification 

Often workers are classified as independent contractors, instead of as employees. Under the FLSA, U.S. Supreme Court rulings, and guidance from the DOL, the test for whether workers can be legally classified as independent contractors is the economic realities test. The economic realities test is comprised of the following six factors:

1. How integral the work is to the business;
2. The permanency of the worker’s relationship to the company;
3. The worker’s and employer’s investment in items such as equipment;
4. How much control the worker has;
5. The worker’s opportunity for profit and loss; and
6. How much skill is required to do the job and the worker’s initiative.

These six factors are subject to a balancing test and are analyzed under the totality of the circumstances. 

The DOL provides additional guidance concerning whether workers should be classified as employees or can be classified as independent contractors in its Fact Sheet 13: Employment Relationship Under the Fair Labor Standards Act (FLSA) | U.S. Department of Labor (dol.gov). Federal courts use variations of the economic realities test, so it is important to know the specific test that applies to each particular jurisdiction within the U.S. 

There are significant consequences if a company misclassifies a set of workers as independent contractors. Under the FLSA, an employer is only required to pay its employees (not independent contractors) the federal minimum wage, provide overtime pay for its employees, and comply with certain record keeping requirements with respect to hours worked by its employees. There is a long history of employers improperly classifying employees as independent contractors. In recent years, the employee versus independent contractor status issue, however, has caught national attention as certain sectors of the economy shift to so-called “gig” or “platform” relationships. Often those workers in those types of relationships make low wages and work more than 40 hours per workweek, without overtime pay. 

At Cantrell Schuette, we are at the forefront of advising on and litigating independent contractor classification disputes. 

Failure to Pay All Hours Worked 

When calculating work time for non-exempt employees, all time spent working for an employer must be included, regardless of whether an employee is on the employer’s premises. Examples of compensable time include time spent:

• On-call
• Checking and/or responding to work emails from home
• Responding to work texts 
• Turning on computers or other equipment
• Undergoing security checks
• Working during meal breaks
• Attending training or safety classes
• Taking short breaks of less than 15 to 20 minutes 
• Driving between job sites

The DOL provides additional guidance concerning which activities are compensable in its Fact Sheet #22: Hours Worked Under the Fair Labor Standards Act (FLSA) | U.S. Department of Labor (dol.gov) 

Tip Pools

Tipped employees are allowed to participate in tip sharing arrangements, often called tip pools, with other tipped employees. Tipped employees include, for example, waiters, busboys, bartenders, and bellhops. It is unlawful, however, for an employer to require or allow non-tipped employees to participate in tip pools. Non-tipped employees that sometimes are improperly allowed to participate in tip pools include mangers, business owners, cooks, and dishwashers. 

The wage and hour attorneys at Cantrell Schuette, have significant experience successfully litigating tip pooling disputes in multiple industries, including the hospitality, restaurant, and gaming industries. 

The DOL provides guidance on the regulations governing tipped employees and tip pools in its Fact Sheet #15 (dol.gov). 

Retaliation Claims 

Federal and state laws prohibit retaliation against an employee for reporting or complaining about unlawful pay practices. For example, the FLSA specifically makes it unlawful for any person to discharge or discriminate against any employee because such employee (i) has filed any complaint or instituted any proceeding related to the FLSA, or (ii) has testified or is about to testify in any such a proceeding. Employees are protected regardless of whether the complaint is made orally or in writing. Most courts have ruled that internal complaints to an employer are protected. 

The DOL provides guidance on prohibited retaliation under the FLSA in Fact Sheet # 77A: Prohibiting Retaliation Under the Fair Labor Standards Act (FLSA) | U.S. Department of Labor (dol.gov). 

Retaliating against an individual for complaining about actual or perceived unlawful pay practices may also violate state laws, including state laws protecting whistleblowers. 

Wage Theft and Other State-Law Wage Claims

Most states have laws that prohibit wage theft. Wage theft can occur in various forms, including unlawfully docking pay, withholding an employee’s final paycheck, and paying less compensation than promised (i.e., bonuses or commissions). In addition to state and local wage theft laws, individuals may have other non-statutory claims when all compensation earned is not paid, such as claims for breach of contract or unjust enrichment. 

At Cantrell Schuette, we are familiar with all claims and defenses that are asserted in the context of compensation disputes.