Working 9-to-5 vs. On Call 24/7: What Texas Employers Should Know According to Epste

By: Legal - Law News

Employers could face serious risks by unknowingly violating the Fair Labor Standards Act (FLSA). The biggest risk is from multi-million dollar lawsuits by employees who allege they were deprived of overtime pay required by the FLSA, according to Marty Wickliff and Gayla Crain of Epstein Becker Green Wickliff & Hall, P.C.

There is a potential bright spot for employers although Congress is currently moving to overturn the May 2007 U.S. Supreme Court ruling in Lilly M. Ledbetter v. Goodyear Tire & Rubber Company, Inc, which in effect held that an employee can challenge only the most recent pay decisions, not those made throughout an entire career.

Expecting employees to be reachable by cell phone or PDA at home, or to attend training classes during the lunch hour, are key concepts in today’s workplace. Yet they may violate the FLSA’s requirement that all non-exempt employees (typically those not considered to be salaried, white-collar managers) be paid a minimum wage and overtime compensation at 1.5 times the normal rate when working over 40 hours per week.

“Employers are increasingly being sued by non-exempt employees who claim they are being forced to work ‘off the clock,’ without pay, by performing work tasks, undergoing training, or responding to supervisors before or after regular working hours,” says Gayla Crain, Member of the Firm, Epstein Becker Green Wickliff & Hall in the Dallas office. "Such allegations can be a major problem for employers to counter because FLSA standards can be ambiguous."

Texas state and federal courts as well as the U.S. Fifth Circuit Court of Appeals have ruled both for and against employers, when salaried employees sue, alleging that company policies have created a situation where the white-collar exemption no longer applies to them.

The FLSA standard that is most often the focus of litigation seeks to identify whether an employee’s “primary duty” is sufficiently independent from supervision to justify a white-collar exemption.

“Simply measuring how much time employees devote to such activities leaves plenty of gray areas, because an employee’s primary duty will usually be what he or she does that is of primary value to the employer, not collateral tasks also performed, even if they consume more than half of the employee’s time.” says A. Martin Wickliff, managing partner, Epstein Becker Green Wickliff & Hall’s Houston office.

Exempt employees can work in executive, administrative, professional, outside sales or computer-related jobs, but proving that their “primary” duties make them exempt from overtime can be difficult. For example, one 2006 Fifth Circuit case held that insurance adjusters were exempt, while another ruled that physician assistants and nurse practitioners were not.

“The only sure protections for employers to avoid FLSA litigation are keeping scrupulously accurate working time records on employee activities and ensuring that job responsibilities reflect FLSA requirements as closely as possible,” added Crain.

Founded in 1973, Epstein Becker & Green, P.C., is a law firm with more than 380 attorneys practicing in 11 offices throughout the U.S. -- Atlanta, Chicago, Dallas, Houston, Los Angeles, Miami, New York, Newark, San Francisco, Stamford, and Washington, D.C. -- and affiliations worldwide. The firm’s size, diversity, and global affiliations allow our attorneys to address the needs of both small entrepreneurial ventures and large multinational corporations on a worldwide basis. EBG focuses on Business Law, Health Care and Life Sciences, Labor and Employment, Litigation and Real Estate. www.ebglaw.com