Failure to Pay Wages or Overtime Pay

Dock and shipyard workers may be legally entitled to overtime pay under Federal law.

Employees who work at shipyards or city ports—or on tankers, oil rigs or similar locations—are often wrongfully denied overtime wages which they are legally entitled to receive. The employers typically argue that the employees are not entitled to overtime under the “seaman exemption” to the Fair Labor Standards Act (“FLSA”). However, the employer is not always right. And with the long hours often required in this line of work, the denial of overtime wages can result in employees being cheated out of thousands of dollars in unpaid wages which they are owed. There are various positions which may result in employees being denied their overtime wages. By way of example, it can include workers on docks, tankers, shipyards, and oil rigs. For industrial work, it may include those who perform dredging, forestry or lumbering services. In terms of construction, examples include those who build docks, levees or other types of structures and buildings. Despite employers arguing otherwise, these categories of employment often do not qualify for the “seaman exemption. And when the exemption does not apply, the employees who work in these fields may be legally entitled to receive overtime pay at the rate of time-and-one-half (1.5). Section 13(b)(6) of the FLSA provides an exemption from overtime pay for “any employee employed as a seaman.” The federal regulations interpreting the FLSA provide:  An employee will ordinarily be regarded as “employed as a seaman” if he performs, as master or subject to the authority, direction, and control of the master aboard a vessel, service which is rendered primarily as an aid in the operation of such vessel as a means of transportation, provided he performs no substantial amount of work of a different character. This is true with respect to vessels navigating inland waters as well as ocean-going and coastal vessels. 29 C.F.R. § 783.31. When deciding whether an employee is “employed as a seaman,” the duties of the employee must qualify as “service which is rendered primarily as an aid in the operation of such vessel as a means of transportation.” Id. Employees who make repairs to vessels between navigation seasons would not qualify as seamen. 29 C.F.R. § 783.33. An employee may be regarded as “employed as a seaman” if the work performed as a whole meets the test stated in 29 C.F.R. § 783.31, even though during the workweek the employee performs some work of a nature other than that which characterizes the services of a seaman, if the amount of such other “non-seaman’s” work is not substantial. 29 C.F.R. § 783.37. Such differing work is typically considered “substantial” when it occupies more than 20 percent of the time worked by the employee during the workweek. Id. Because the workweek is the unit of time used in determining the applicability of this exemption, the workweek is the period of time used in determining whether a substantial amount of non-seaman’s work has been performed so as to make the exemption inapplicable. 29 C.F.R. § 783.49. If you believe you have been wrongfully denied your earned overtime, you could have a significant claim against the company for unpaid wages. The exact value of your claim will vary depending on a number of factors. If you are interested in learning more, please contact our law firm to speak with an attorney.

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Employer’s Authorization Before Working Overtime in Maryland

Maryland overtime attorney Bruce Luchansky answers the question: “Does it matter that I did not obtain my employer’s authorization or prior approval to work overtime?” This question involves one of the many confusing wrinkles of overtime law – and it works in favor of the employee. The answer is NO, it does not matter (for purposes of being entitled to be paid) that the employee did not obtain the employer’s authorization or prior approval before working overtime. As long as the work is for the employer, the employee is entitled to be paid for it. Be aware, however, of the wrinkle. If a company has a policy against working overtime without obtaining prior approval, the company is permitted to discipline you – even fire you, if that is the company’s policy. But your employer cannot elect not to pay you for the time you worked just because you did not obtain prior approval. Overtime issues are confusing, and it makes sense to speak with an experienced Maryland overtime claims lawyer. If you believe that your employer owes you overtime or other wages, feel free to give us a call at Luchansky Law, and an Maryland overtime violation lawyer will explain clearly what your rights are.  

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How Long Do I Have to File an Overtime Pay Claim?

Maryland employees generally have two years to file a claim for unpaid overtime wages against their employer or former employer. That period can be extended to three years if the employee can prove that the employer’s failure to pay overtime was “willful.” These time frames are very important, particularly for long-time employees who have terminated their employment. Here’s why. Assume that you have been working as an hourly employee for a company for 5 years. You regularly have worked 45 – 50 hours a week, but you and your employer agreed that you would receive only straight time for all hours. Suddenly, a new supervisor comes on the scene, takes a disliking to you, and fires you. You now decide you want your overtime pay. How much can you recover? Assuming for this example that the failure to pay overtime was willful, you can “go back” three years from the date you file your lawsuit. Therefore, if you were to be fired on June 1, 2013, your claim can “go back” for the period that games for girls began on June 1, 2010. But keep in mind that the “look back” period begins from the date that you file your lawsuit, not from your last day of employment. So, if you wait to file your lawsuit until July 1, 2013, you can only sue for the period from July 1, 2010 through July 1, 2013. So what’s the problem? Since you no longer are working, your three-year period covered by the lawsuit includes a month in which you were not working and for which you have no overtime claim. Meanwhile, the June 2010 month for which you had a claim when you were fired has “fallen off” the back end of the claim period. Similarly, if you file your lawsuit on August 1, 2013, then the claim period covers August 1, 2010 through August 1, 2013, and two months of that three-year period do not contain wages. Your claim for overtime continues “dropping off” the back end of the period. The lesson is that time is of the essence when it comes to overtime claims. If you suspect that you are entitled to overtime, contact our Maryland overtime attorneys right away. Our employment law attorneys can assess your situation, let you know if your rights have been violated, and can pursue a claim on your behalf to recover the full compensation to which you are entitled.  

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Proving Overtime Calculations

Maryland overtime attorney Bruce Luchansky answers: “How can I prove that my overtime pay calculation is accurate and that I actually worked the hours that I spent working overtime?” It is the employer’s obligation to keep track of an employee’s hours worked, not the employee’s.  All employers must implement a system for keeping track of those hours, which may be a time sheet, a time clock, or any other method of accurately recording the hours worked.  You always should record all hours worked on the employer’s time keeping system.  Nevertheless, if you suspect that you are not being paid properly for overtime, keep track of your overtime hours in a separate notebook, on your calendar, or any other note keeping system.  In fact, the Department of Labor has produced a smart phone app for that very purpose. Go to https://itunes.apple.com/us/app/dol-timesheet/id433638193?mt=8 for a screen capture of the iTunes page describing the app.  Even if you haven’t kept these records, don’t worry – an employee’s testimony goes a long way in overtime cases, especially if the employer has not met its responsibility of keeping accurate time records.   If your employer is shortchanging you for overtime hours worked, call a Maryland overtime violation lawyer with experience in FLSA wage and hour cases to assist you in recovering the unpaid wages you earned.

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Maryland Overtime

Maryland overtime attorney Bruce Luchansky answers: “What is overtime in Maryland?” In Maryland, “overtime” is an employee working more than 40 hours in a single workweek.  Contrary to popular belief, working more than 8 hours in one day does not constitute overtime in Maryland.  Therefore, if an employee works three 12-hour shifts in a single workweek, the employee only has worked a total of 36 hours in the week.  Even though s/he worked 12 hours per day, s/he has not worked overtime.  When a non-exempt employee does work more than 40 hours per week, the employee must be paid at the rate of 1 ½ times the employees regular wage for all hours worked above 40.  When the employer is a private company (i.e., not a governmental agency) the employer may not substitute additional paid leave in lieu of wages – a common mistake that employers make.   If you have questions about what overtime is, how you calculate it, and whether you are entitled to recover unpaid wages, contact an experienced employment law attorney.

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Is there a law that governs the wages and hours in my workplace?

Maryland wage and hour claim attorney Bruce Luchansky answers the question: “Is there a law that governs the wages and hours in my workplace?” There are several important laws that govern the wages and hours that an employer must pay to its employees. Nevertheless, these laws often are violated by employers.  For example, employers often claim that certain employees are exempt from receiving overtime pay when those employees actually are eligible to receive overtime pay.  In legal terms, that occurs when employers misclassify employees as “exempt” when they should be classified as “non-exempt.” Another common violation occurs when employers deduct a half hour or more for lunch, yet require the employees to work (or be available to work) during their lunch break.  If the employee works during lunch (or even is available to work), the employee must be paid for that time.  Employers who violate these wage and hour laws may be subject to claims for the unpaid wages in amounts of up to 2 or 3 times the unpaid wage, plus attorneys’ fees.  Employees should take the steps necessary to make sure they are receiving the full amount of wages that they earned. Schedule a Consultation with a Maryland Wage & Hour Attorney Contact us at (410) 522-1020 to schedule a consultation.

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Filing an Overtime Claim in Maryland

Towson, Maryland overtime claim attorney Bruce Luchansky answers the question: “According to the rules for overtime pay in Maryland, how long do I have to file an overtime pay claim?” Under applicable law, you are able to recover unpaid overtime for a period of 2 years.  That period is extended to 3 years if it is determined that the employer’s failure to pay overtime was “willful.”  In most cases, therefore, it is important to act quickly if your employer systematically has not been paying you overtime for a substantial period of time.  If, for instance, the employer recently fired you, and the employer has not been paying you overtime for years, then with each day that goes by, the 2 year (non-willful) period loses another day in the covered period.  For example, if your employment ends on June 1, 2013, then as of that day, you may go back to claim overtime for 2 years, back to June 1, 2011.  However, on June 2, 2013, you may go back 2 years to June 2, 2012.  On June 3, 2011, you may go back 2 years to June 3, 2013 – and so on.  The quicker you act, the more unpaid overtime compensation you may be able to recover.

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Interrupted Lunch Breaks

Baltimore County, MD employment law attorney Bruce Luchansky answers the question: “My employer gives me a half hour lunch break and deducts a half hour of pay for that time, but I often interrupt my lunch to do work-related things.  Should I be paid for that time?”   Absolutely.  An employer only is allowed to deduct for a lunch period if you are relieved of all duties during that time.  For example, if you eat your lunch at your desk and are expected to answer the phones if they ring, then you must be paid for that time, even if the phone does not ring during lunch.  Many employers make this mistake, and employees often are cheated out of money they have earned for unpaid lunch periods.  Schedule a Consultation with a Maryland Employment Law Attorney If your employer does not pay you for your lunch period, consider contacting an experienced employment lawyer to discuss whether you are owed wages.

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Maryland Court Rules in Favor of Personal Liability of Employers for Wage Payment Claims

Imagine the following scenario. You work for a small company, ABC Widgits Corp., where the owner is involved in the day-to-day operations of the Company.  She hired you, she established your hourly rate, and she set your schedule.  And when she fired you, she refused to pay you your last paycheck, claiming that you don’t deserve it because of your poor performance. Obviously, you can sue the company for your last paycheck.  The claim would be filed under the Maryland Wage Payment and Collection Law, which permits you under certain circumstances to recover up to treble damages plus attorney’s fees for unpaid wages. The question is – can you sue the company’s owner as well?  In other words, is the owner herself also considered to be an “employer” under the Maryland Wage Payment and Collection Act, just like the company, ABC Widgits Corp.? The Maryland Court of Special Appeals, in a case of first impression, recently said, Yes.  In the case of Campusano v. Lusitano Construction LLC, the Court ruled that when answering the question, “Who is the employer?” under the Maryland Wage Payment and Collection Law, the answer is determined by the “economic realities” of the situation.  Therefore, an owner or supervisor of an employee may be considered an “employer” (and, therefore, can be sued individually) when that individual “controls” the employment relationship.  Although the test for “control” is not supposed to be applied “mechanistically,” the Court identified the following 4 factors, which may be considered for identifying an “employer.”  Those factors are: whether the alleged employer (1) had the power to hire and fire the employees; (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.  If these factors are met, an owner or supervisor may be held personally responsible for unpaid wages, including a claim for up to treble damages and attorneys’ fees. Schedule a Consultation If you have questions about issues that arise in the Maryland workplace, call the employment law attorneysat Luchansky Law for guidance.  Bruce M. Luchansky and Judd Millman have decades of experience in handling employment law matters, and they regularly assist employees and employers sort through legal issues that arise in the workplace.  Call them at 410.522.1020 to schedule a consultation.

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