Miami Employment Lawyer Blog

Now that summer is coming, many clients that come into our Miami office have asked whether or not summer interns must be paid the federally mandated minimum wage as well as overtime compensation. The U.S. Department of Labor has recently answered that question in the affirmative and has stated that it is increasing its enforcement efforts aimed at unpaid internships.

Under the Fair Labor Standards Act (FLSA), a student intern must be paid the federally mandated minimum wage of $7.25 per hour and overtime compensation of one and one-half the regular rate for all hours worked over forty (40) per week. However, if the internship is similar to an "educational environment" and is merely an extension of the student's academic educational experience, then the FLSA would not apply and neither the minimum wage nor overtime pay would be required. The following six factors are used to determine whether or not there is truly an "educational environment" so that the FLSA would not apply:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

2. The internship experience is for the benefit of the intern;

3. The intern does not displace regular employees, but works under close supervision of existing staff;

4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

5. The intern is not necessarily entitled to a job at the conclusion of the internship; and

6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If the factors listed above are all met, then it is deemed that an employment relationship does not exist under the FLSA, and therefore, the employer need not pay minimum wage and overtime compensation.

Continue reading "Student Interns Must Be Paid Minimum Wage and Overtime Pay" »

A recent opinion of the Deputy Administrator of the U.S. Department of Labor states that mortgage loan officers are not exempt workers and must be paid the minimum wage and overtime pay as required by the Fair Labor Standards Act (FLSA). A previous opinion stated that mortgage loan officers were exempt administrative employees and therefore employers were not required to pay them the minimum wage and overtime pay.

However, the recently issued opinion states that mortgage loan officers are more like "production" employees that actually produce the primary output of the business as opposed to "administrative" employees that perform work directly related to the management of the business. The opinion identified the following duties performed by mortgage loan officers: (i) responsible for receiving internal leads and contacting potential customers or receiving contacts from customers generated by direct mail or other marketing activity; (ii) collect required financial information from customers they contact or who contact them, including information about income, employment history, assets, investments, home ownership, debts, credit history, prior bankruptcies, judgments, and liens. (iii) run credit reports; (iv) enter the collected financial information into a computer program that identifies which loan products may be offered to customers based on the financial information provided; (v) assess the loan products identified and discuss with the customers the terms and conditions of particular loans, trying to match the customers' needs with one of the company's loan products; (vi) compile customer documents for forwarding to an underwriter or loan processor, and (vii) may finalize documents for closings.

Based on the foregoing duties, the Deputy Administrator's opinion states that mortgage loan officers are generally non-exempt production employees that are covered by the FLSA and, as such, must be paid the federally mandated minimum wage and one and one-half times their regular rate for all hours that they work over forty (40) in a workweek unless another exemption applies.

Continue reading "Department of Labor Opinion Holds that Mortgage Loan Officers Are Not Exempt and Must be Paid Minimum Wage and Overtime Compensation" »

We continue to see clients come into our Miami office alleging the failure of their employer to pay the federal minimum wage. Apparently, this is not unusual, especially in low wage industries, such in the food service, child care, construction and janitorial industries. Indeed, yesterday the U.S. Department of Labor announced that it will increase enforcement efforts in those industries, especially in western States in order to curb minimum wage and overtime pay violations.

Under the Fair Labor Standards Act of 1938 (FLSA), covered employers must pay a minimum wage of $7.25 per hour and, when their employees work over forty (40) hours per week, employers are required to pay at least one and one-half times the minimum wage for all such hours over forty. Tipped employees, meaning those who receive more than $30 per month in tips, may be paid a reduced direct wage of $4.23 per hour. However, certain other rules apply in order for an employer to take advantage of this so-called "tip credit." Specifically, the law provides that the employer must inform each tipped employee that it will be taking the tip credit before the "tip credit" is taken and must allow all tipped employee to retain all of their tips. In this respect, the practice of requiring tipped employees to "tip-out" other non-tipped employees (such as kitchen workers) could be a violation of the law. In addition, reductions for mistakes, such as breakages, spills, etc., could also result in a violation of the law if it causes the direct wage to be reduced below the federal minimum wage.

Continue reading "Failure to Pay Minimum Wage is Still a Problem According to U.S. Department of Labor" »

Under a new Miami-Dade County Ordinance (Chapter 22 of the Miami-Dade County Code of Ordinances), if an employer fails to pay its employees within a "reasonable time" after they performed the work; the employer will be guilty of "wage theft." The ordinance goes on to provide that a "reasonable time" shall be presumed to be no later than 14 days from the date that the work is performed. Although the time period can be modified to no more than 30 days, there must be an express agreement in writing between the employer and the employee to do so.

If an employer is found to have violated the ordinance, that employer may be required to pay the employee an amount equal to three times the amount of back wages that the employer failed to pay. An employer may also be required to pay reasonable attorneys' fees costs in connection with an action brought to recover wages under the ordinance.

An employee may file a complaint with the county or may also bring a private action in a court of competent jurisdiction to redress a violation of the ordinance. With respect to records, where an employer has failed to show that it has maintained appropriate records of the hours worked by its employees, the ordinance provides that the employer shall have the burden of negating the evidence presented by the employee of the hours the he or she worked.

Continue reading "Miami-Dade County Wage Theft Ordinance Requires Workers to Be Paid No More 14 Days After They Perform the Work" »