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Houston Employment Law Blog

3 ways your employer may cheat you out of overtime

Ever feel like you are not getting your rightful overtime pay? The law requires most employers to pay its employees extra for working over 40 hours in one week. However, your employer may be doing sneaky things to avoid giving you the payment you rightfully deserve.

Your employer may take advantage of the fact you do not know much about overtime laws to cheat you out of overtime pay. Watch out for these strategies your employer may use.

Over $1 billion recovered for workers in 2017

During fiscal year 2017, the Employee Benefits Security Administration, or EBSA, closed 1,707 civil cases. Furthermore, there were 1,303 applications to take part in the Voluntary Fiduciary Correction Program. The Abandoned Plan Program was able to return $27.9 million to participants in 586 plans that had been terminated. Overall, more than $1.1 billion was put back into worker health care, retirement and other Employee Retirement Income Security Act, or ERISA, plans.

EBSA was able to recover $418.7 million by resolving informal complaints. Investigations led by the agency led to 113 people being indicted during fiscal year 2017. Those indictments involved people such as corporate officers or plan officials. During that same time period, there were 22,139 annual reports received as part of the Delinquent Filer Voluntary Compliance Program. Anyone who wants to learn more about ERISA or what EBSA does can visit its website or read its publications.

Travel bonus not deemed to be compensation

Texas employers may not be able to deduct travel bonuses from damages assessed if they violate the Fair Labor Standards Act. This was the decision reached by the U.S. District Court for the Western District of Virginia. An investigation into the pay practices of Mountain Masonry revealed that 112 workers were not paid overtime rates when they worked more than 40 hours a week.

Instead, they were paid at their regular rate, which meant that they had lost out on $98,198.11 in back wages between October 2013 and June 2016. Workers were also given $3 an hour for hours worked at remote job sites, which was given to them in a separate check. The company deemed these to be a travel bonus or per diem payment. Since the payments were not intended to be compensation, it was ruled that the company couldn't deduct them from back wages owed.

Revealing workers' EEOC complaints may be an ADA violation

For employees in Texas and across the country, the right to communication with the Equal Employment Opportunity Commission is protected under federal law. One of the EEOC's enforcement priorities is preserving access to the system for employees facing discrimination on the job. There are a number of actions that employers can take that can chill employees' freedom to report discrimination to the EEOC, and those actions are unlawful.

In one case, a company issued a letter from its in-house attorney to employees regarding an EEOC lawsuit alleging that the company violated the Americans with Disabilities Act. The letter included the employee's name who filed the EEOC complaint, the specific allegations made by the employee, the employee's disability and the accommodations that the worker sought to continue in their job successfully.

Labor Department adopts test for internship legality

Many people in Texas have worked as interns, whether over summer vacation from school, after graduation or as way to get offered a full-time job. However, there have been significant questions about proper differentiation between interns and employees, especially when interns receive no pay or just a stipend that falls below minimum wage. There has been a change in the Department of Labor's test to assess the correct classification of interns. It now aligns with the majority of U.S. appellate courts.

If an intern is deemed to be misclassified while doing the job of an employee, that person is entitled to receive pay of at least minimum wage, including overtime pay. The test that has been adopted by the Department of Labor is known as the "primary beneficiary" test. As implied in the name, this test looks at a series of factors to determine whether the employer or the intern gains a more substantial benefit from the relationship.

4 subtle signs of age discrimination at work

If you are 40 years old or older, you may face age discrimination at work. According to the Equal Employment Opportunity Commission, it is illegal for employers to discriminate against older workers. However, sometimes discriminatory practices are not always obvious. 

Just because you are not fired because of your age or you do not experience insults daily does not necessarily mean you are free from age discrimination. Here are some subtle ways your employer may be discriminating against you.

Poll finds women may be treated differently at work

Women who work in STEM jobs are more likely to experience inequality in their workplaces in Texas and around the country. This was one of the key findings from a Pew Research poll conducted in 2017. According to the poll, 50 percent of women respondents who worked in STEM jobs said that they experienced discrimination. Discrimination was defined as actions such as being paid less for similar work or being passed over for important jobs.

This is compared to 41 percent of respondents in other jobs, and only 19 percent of men said that they experienced discrimination at work. Of those who worked in what were labeled as computer jobs, 74 percent of women said that they have been victims of gender discrimination. Only 16 percent of men said that they were discriminated against mainly based on their gender. Men and women also had different opinions as to whether women had a genuine chance to advance in their careers.

DOL adds flexibility to rules governing unpaid internships

The Department of Labor has updated its guidance for unpaid internships. The new approach grants employers at for-profit companies in Texas more flexibility. Previous rules established by the department in 2010 insisted that an employer had to meet all six requirements to avoid paying minimum wage or overtime. The new test includes seven points of consideration meant to determine whether the arrangement benefits the intern's education or actually benefits the employer.

Labor regulations still clearly require that an unpaid internship must benefit the intern more than an employer. An unpaid internship that meets this standard should not displace a paid employee or interfere with the intern's academic schedule. Additionally, the relationship must make clear to the intern that the position does not involve compensation. The intern's duties should also add to their educational experience and result in course credit.

The links between sexual harassment and lower pay

Everyone in Texas faces challenges at work from time to time, but women predominantly experience sexual harassment that can reduce how much they earn. According to the Equal Employment Opportunity Commission, power disparities in the workplace could encourage harassment. Unequal pay creates a power disparity, and sexual harassment sometimes causes victims to leave potentially lucrative careers or suffer the consequences of reduced job performance.

A study director from the Institute for Women's Policy Research described how sexual harassment lowers women's lifetime earnings. A phenomenon called occupational segregation places pressure on women to leave hostile industries and seek employment in female-dominated job sectors, where the pay tends to be less. She added that a victim might lose focus at work due to harassment. The perceived inability to meet the demands of the job could reinforce the cultural notion that women do not deserve pay equal to men.

Migrant farm workers are often subjected to employer abuse

When you came to America, you did so with the hope of creating a better life for you and your family. Working on a farm is one of the most common ways for migrants to make a living and get a good start in our country. You and other farmworkers in Texas need to understand that, just like natural-born citizens, you have the right to fair and humane treatment by your employers. Unfortunately, the opposite is true for far too many migrant workers across the country.

According to the National Farm Worker Ministry, about six out of every 10 farm workers are undocumented foreigners, most from Mexico. This fact gives unscrupulous employers an opportunity unseen in nearly any other industry to inflict inhumane and unacceptable conditions on their workers. If you or your friends are undocumented, your employer might subject you to the following:

  • Being forced to work long hours in dangerous conditions, such as spending all day in the sun without water, shade or protective clothing
  • Receiving pay that is a fraction of the minimum wage, or not receiving payment at all despite promises
  • Threats of deportation or reporting to immigration authorities if employees speak out against injustices
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Warren & Siurek, L.L.P.
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Houston, TX 77098

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