Forcing The Issue? President Obama To Issue Executive Order To Increase The Minimum Wage For Workers Under Federal Contracts

President Obama The White House Issue issued an official press release today detailing President Obama’s plan to increase the minimum wage to $10.10 for federal contract workers.

Through Congress, President Obama has attempted for months to increase the Federal minimum wage for all employees entitled to the minimum wage, without success.

President Obama thus decided to use his executive powers to address a portion of the minimum wage issue by issuing an executive order raising the minimum wage for workers under new federal contracts.

This announcement comes just hours before President Obama is scheduled to delivery his State of the Union address.

All other employees are still subject to the Federal minimum wage of $7.25 (or more under State law).

In the press release, President Obama further called upon Congress to raise the Federal minimum wage from $7.25 to $10.10 per hour in stages by the end of 2015 and index the rate to inflation thereafter.  The White House believes that this increase would directly increase wages for some 15 million American workers, which would in turn help boost the middle class in the United States.

Critics of the increase in minimum wage often argue that doing so would dissuade small business owners from hiring more workers which would have the adverse effect of less jobs available for America’s young professionals.

Rudy Giuliani, former Mayor of New York, on Piers Morgan, went even further by stating that the proposed Executive Order would “overstep executive authority and violate separation of powers.”

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Merry Christmas!

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Florida’s Minimum Wage to Increase to $7.93 an hour

Overview

On January 1, 2014, the Florida minimum wage will increase from $7.79 an hour to $7.93 an hour.  This is due to a Florida law that mandates an increase in the Florida minimum wage based on inflation.

If an employee is subject to both the state and federal minimum wage laws, the employee is entitled to the higher of the two minimum wages.  Therefore, starting on January 1, 2014, employees in Florida who are entitled to the minimum wage must be paid an hourly rate of at least $7.93 per hour for each and every hour that the employee works.

Below is the Federal v. Florida minimum wage history:

  • 01/01/2007-12/31/2007: Federal Minimum Wage $5.85; Florida Minimum Wage $6.67
  • 01/01/2008-12/31/2008: Federal Minimum Wage $6.55; Florida Minimum Wage $6.79
  • 01/01/2009-07/23/2009: Federal Minimum Wage $6.55; Florida Minimum Wage $7.21
  • 07/24/2009-12/31/2009: Federal Minimum Wage $7.25; Florida Minimum Wage $7.25
  • 01/01/2010-12/31/2010: Federal Minimum Wage $7.25; Florida Minimum Wage $7.25
  • 01/01/2011-05/31/2011: Federal Minimum Wage $7.25; Florida Minimum Wage $7.25
  • 06/01/2011-12/31/2011: Federal Minimum Wage $7.25; Florida Minimum Wage $7.31
  • 01/01/2012-12/31/2011: Federal Minimum Wage $7.25; Florida Minimum  Wage $7.67
  • 01/01/2013-12/31/2013: Federal Minimum Wage $7.25; Florida Minimum Wage $7.79
  • 01/01/2014:  Federal Minimum Wage $7.25; Florida Minimum Wage $7.93
Tipped Employees

Employees subject to a tipped minimum wage  will see an increase to a direct wage of $4.91 an hour.

Can We Assist You?

If your employer is not currently paying you at least $7.79 per hour, or fails to pay you at least $7.93 per hour starting on January 1, 2014, or has not paid you in accordance with the Florida minimum wage history above, you may have a claim. Please call Militzok & Levy, P.A. at (954) 727-8570, or fill out the form on the right side of this page. for a free consultation to learn more.

DISCLAIMER:

All data and information provided on this site is for informational purposes only. Militzok & Levy, P.A. makes no representations as to accuracy, completeness, currentness, suitability, or validity of any information on this site and will not be liable for any errors, omissions, or delays in this information or any losses, injuries, or damages arising from its display or use. All information is provided on an as-is basis.

Overtime Pay and Minimum Wage Protection Extended to Direct Care Workers

Direct Care WorkerThe home health care industry scored a victory this week as the United States Department of Labor entered a Final Rule on September 17, 2013 extending the minimum wage and overtime pay provisions of the Fair Labor Standards Act to direct care workers.

Direct care workers are workers who typically provide home care services, such as certified nursing assistants, home health aides, personal care aides, caregivers, and companions.

Direct care workers were previously deemed exempt positions under the Fair Labor Standards Act’s Companionship Exemption.

Nearly two million home health and personal care workers, who previously were not entitled to the minimum wage or overtime pay, will now be protected under the Fair Labor Standards Act, entitling them to the minimum wage and overtime pay.

The regulations will become effective January 1, 2015.

The Final Rule extends the Fair Labor Standards Act protections to workers who are employed by home care agencies and other third parties.

Direct care workers, who are hired by the individual or family directly receiving the services, remain exempt from the overtime pay and minimum wage provisions of the Fair Labor Standards Act.

The United States Department of Labor has created a new web portal providing additional information so that employers, workers, and families can better understand the new requirements.

DISCLAIMER:

All data and information provided on this site is for informational purposes only. Militzok & Levy, P.A. makes no representations as to accuracy, completeness, currentness, suitability, or validity of any information on this site and will not be liable for any errors, omissions, or delays in this information or any losses, injuries, or damages arising from its display or use. All information is provided on an as-is basis.

Calculating Overtime Pay Under the Fluctuating Workweek Method

Overtime Overtime Pay Overview

Generally, employees are entitled to overtime pay for all hours worked over 40 hours per workweek under the Fair Labor Standards Act, notwithstanding exemptions for administrative, executive, creative, highly compensated, and certain computer employees.

Salaried Employees May Be Entitled to Overtime Pay

A common misconception is that an employee is automatically exempt (not entitled to overtime) if the employee is being compensated on a salary basis.  Under the Fair Labor Standards Act, how an employee is paid is not the determining factor as to whether the employee is exempt (not entitled to overtime pay) from the overtime provisions of the Fair Labor Standards Act. Rather, the employee’s usual job duties is the determining factor as to exemption. However, most exemptions from the Fair Labor Standards Act do require a salary basis of compensation for the employer to apply an exemption.

Fluctuating Workweek Method Or Time-And-A-Half?

When an employee is compensated by on a salary basis, but is classified as a non-exempt employee (entitled to overtime), the issue arises as to how the calculation for overtime pay is to be made.  Either the employee’s salary is intended to cover all hours worked in each workweek as “straight time” pay, called the “fluctuating workweek” method (also referred to as the “half-time method” or “Chinese overtime”), regardless of the amount of hours that the employee works, or the salary is intended to cover a specific amount of hours (i.e. the first 40 hours worked), called the time-and-a-half method. By using the fluctuating workweek method, the employer stands to save on payroll on employees who regularly work overtime hours.

Requirements of the Fluctuating Workweek Method

In order for an employer to use the fluctuating workweek method to calculate overtime, the requirements are as follows:

  1. The employee must be on a guaranteed agreed-upon weekly salary which is mutually understood to be paid to the employee as long the employee performs any work in the workweek, regardless of the amount of hours actually worked;
  2. The hours worked by the employee must actually fluctuate from workweek to workweek; and
  3. The regular rate of pay must equate to at least the minimum wage (currently $7.79 in Florida).
Should the employee work the same hours weekly or does not receive a fixed salary (due to commissions or bonuses paid, for example), the default “time-and-a-half” calculation must be used.

 

How Employers Can Save on Overtime Pay under the Fluctuating Workweek Method

Using an example of an employee who works 50 hours on average per week (the hours fluctuate weekly) and earns a weekly salary of $500.00. In this example, in order to calculate the employee’s regular rate of pay under the fluctuating workweek method, the $500.00 guaranteed salary is divided by the total amount of hours worked in that week (50 hours in our example). The employee is thus said to have a regular rate of pay of $10.00 per hour ($500.00 / 50 hours). To be in compliance with the Fair Labor Standards Act, the employee must be paid an additional half-time rate for all hours worked over 40 hours in each workweek in order to compensate the employee  at a rate of time-and-a-half the employee’s regular rate of pay. In this example, the employee must be paid an additional $50.00 in overtime pay for that workweek ($5.00 half-time rate x 10 hours of overtime worked).

In contrast, an employer who is unable to utilize the fluctuating workweek method for a non-exempt salary employee must compensate the employee the agreed upon salary for the first 40 hours (or another agreed-upon amount of hours), and then compensate the employee at a rate of time-and-a-half for each hours worked over 40 hours in each workweek. Using the same example above, the employee is compensated the agreed-upon salary of $500.00 to cover the first 40 hours worked. The employee’s regular rate of pay would thus be $12.50 per hour (instead of $10.00 per hour under the fluctuating workweek method). Therefore, the $12.50 would be considered the employee’s “straight time” pay for all hours up to 40 hours.  Because the salary does not cover any additional hours under this method, the employee must be paid an additional $187.50 ($18.75 time-and-a-half rate x 10 hours of overtime worked), to be compliant with the overtime provisions of the Fair Labor Standards Act.

In this example, the employer saves $137.50 in overtime pay under the fluctuating workweek method. For an employee who regularly works overtime, this can result in significant payroll savings for the employer.

DISCLAIMER:

All data and information provided on this site is for informational purposes only. Militzok & Levy, P.A. makes no representations as to accuracy, completeness, currentness, suitability, or validity of any information on this site and will not be liable for any errors, omissions, or delays in this information or any losses, injuries, or damages arising from its display or use. All information is provided on an as-is basis.

Apple Sued by Former Employees for Unpaid Wages

Apple StoreTwo former Apple employees have filed a collective action lawsuit against the global technology giant for unpaid wages and unpaid overtime pay under the Fair Labor Standards Act, amongst various state labor laws.

The lawsuit was filed in the Federal District Court in the Northern District of California on behalf of the two named plaintiffs, as well as on behalf of all other non-exempt Apple employees.  The categories of positions included in the collective action lawsuit include hourly-paid Specialists, Lead Specialists, Expert Specialists, Managers, Senior Managers, Developmental Managers, and Business Mangers.

The lawsuit alleges that Apple implemented a policy amongst it’s nationwide retail stores requiring Apple’s hourly employees to undergo a mandatory “off the clock” bag search each time the employee left the retail store, which was not compensated for by Apple.  The employees allege that at least 50 minutes to 1.5 hours weekly was spent “off the clock” by each employee for their bag checks to be completed.

The employees estimate that approximately $1,500.00 is owed in unpaid wages and unpaid overtime pay for each Apple hourly employee.  The lawsuit further alleges that these “off the clock” bag checks for stolen items was a company-wide policy and there are likely “thousands” of employees who were affected by the policy.

The Fair Labor Standards Act provides that all covered non-exempt employees must be paid at a rate of not less the minimum wage and overtime pay for all hours worked over forty hours in each work week.

DISCLAIMER:

All data and information provided on this site is for informational purposes only. Militzok & Levy, P.A. makes no representations as to accuracy, completeness, currentness, suitability, or validity of any information on this site and will not be liable for any errors, omissions, or delays in this information or any losses, injuries, or damages arising from its display or use. All information is provided on an as-is basis.

Striking of DOMA Likely to Affect Federal Employment Laws

DOMA

On June 26, 2013, the United States Supreme Court, in a 5-4 decision, ruled that the Defense of Marriage Act (DOMA) is unconstitutional.

DOMA, signed by President Bill Clinton in 1996, prevented same-sex couples, whose marriages were recognized by their home state, from receiving benefits available to other married couples under federal law.  Section 3 of DOMA defined marriage as  “the union of a man and woman”.  The Supreme Court concluded that DOMA  violated the constitutional right to equal protection under the law. (United States v. Windsor, U.S. Supreme Court, 12–307, 2013).

The striking of DOMA means, in states where same-sex marriage is legal, that all federal laws providing benefits to married couples must now provide them to same-sex couples too.

One of the federals laws likely being affected is the Family and Medical Leave Act (FMLA) which provides for twelve (12) weeks of unpaid leave for, in part, for the care of a “spouse”.  The definition of “spouse”, in light of the DOMA decision, will likely have to be revised to clarify whether the leave covers care for a same-sex spouse, particularly in the states that do not recognize same-sex marriages.

The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that sets minimum standards for pension plans in private industry.  DOMA is likely to affect any pension plans, under ERISA, that provide for “spousal” benefits.

The decision striking DOMA will likely have wide-reaching implications on federal employment laws and employers should follow these issues closely accordingly.  Within minutes of the Court’s decision, President Obama ordered the Justice Department to begin reviewing the many federal rules that will need to be changed to accommodate same-sex couples.  The federal agencies governing these laws will likely also be revising their regulations and employer guidance materials in short order to reflect this landmark decision.

CONTACT US

If you are experience an issue in the workplace, please contact us for a free and confidential consultation.

DISCLAIMER

All data and information provided on this site is for informational purposes only. Militzok & Levy, P.A. makes no representations as to accuracy, completeness, currentness, suitability, or validity of any information on this site and will not be liable for any errors, omissions, or delays in this information or any losses, injuries, or damages arising from its display or use. All information is provided on an as-is basis.

Florida Unemployment Rate Lowest Since 2008

Unemployment

Unemployment Continues To Drop in Florida

The unemployment rate in Florida continued to decline as it dropped to 7.2% in April 2013, the lowest rate in the state since September 2008, according to the United States Department of Labor.  The unemployment rate has decreased each month since the unemployment rate reached a high of 11.9% in December 2009.

Employment in South Florida, in particular, is thriving according to the latest data from the United States Department of Labor.  Miami-Dade County saw an annual increase of 1.9%, Broward County increased 2.6%, and Palm Beach County increased 2.2%.  Florida had an annual increase of 1.9%.

Interestingly, during this same period of time in South Florida, however,  the average weekly wages actually decreased.  Annual wages earned in Miami-Dade County decreased by 2.5%, Broward County decreased by 2.6%, and Palm Beach County decreased by 1.4%.  The state average for this period of time was a decrease of 1.4%.

The latest data released by the United States Department of Labor would indicate that more positions are being filled, but at a lesser rate of pay.

CONTACT US

If you are experience an issue in the workplace, please contact us for a free and confidential consultation.

DISCLAIMER

All data and information provided on this site is for informational purposes only. Militzok & Levy, P.A. makes no representations as to accuracy, completeness, currentness, suitability, or validity of any information on this site and will not be liable for any errors, omissions, or delays in this information or any losses, injuries, or damages arising from its display or use. All information is provided on an as-is basis.

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Usher Sued By Nanny For Unpaid Overtime Pay

 

UsherUsher Raymond, R&B star and current judge of The Voice, has been sued by his former nanny of two years, Cecilia Duncan.  Ms. Duncan allegedly began her employment as a part-time nanny caring for Usher’s children, however, it is alleged that Ms. Duncan began routinely working more than 40 hours per week without any additional compensation.  Ms. Duncan has reportedly filed suit against Usher for unpaid overtime pay under the Fair Labor Standards Act and for wrongful termination, and is seeking in excess of six figures.  Ms. Duncan further alleges that prior to filing suit, she first brought her complaints to Usher who ignored them for a period of at least one year.

The Fair Labor Standards Act generally states that most employees in the United States are entitled to the minimum wage.  Additionally, most employees are entitled to overtime pay at a rate of time-and-a-half the employee’s regular rate of pay for all hours worked over 40 hours in each work week, unless they are subject to an exemption.

Typically, nannies (referred to as “babysitters employed on other than a casual basis” by the Fair Labor Standards Act) who “live in”, are entitled to the minimum wage for each hour that the nanny actually works, but are usually exempt from overtime pay entitlement.  Nannies who do not “live in” but work more than 40 hours per work week are usually entitled to overtime pay as well as the minimum wage for all hours worked.

CONTACT US

If you are a nanny and are not being paid the minimum wage and/or overtime pay, please contact us for a free and confidential consultation.

DISCLAIMER

All data and information provided on this site is for informational purposes only. Militzok & Levy, P.A. makes no representations as to accuracy, completeness, currentness, suitability, or validity of any information on this site and will not be liable for any errors, omissions, or delays in this information or any losses, injuries, or damages arising from its display or use. All information is provided on an as-is basis.