Hanover Law was contacted by a local business owner who was suffering from an FLSA problem. I share this hear, as it may be helpful to others suffering from the same issue.
I am a deli owner and one of my employee sued me for minimum wage and overtime. She wants us to pay over ten thousand.However, there was an agreement on the amount of her wage because our employee wanted the paycheck in cash. We do have the recording of it, and I just wanted to know if there is anything we could do in defense.
Fair Labor Standards Act (FLSA) violations can be nasty, and you need a lawyer to get your through this with a minimum of pain. By way of overview — generally, if you did not pay an hourly employee the appropriate number of hours, you can be liable for up to three times the missing amount (including overtime). Where the failure to pay was not willful (and that’s another kettle of fish as to how the Government defines willful), the amount owed is two times the missing amount. Additionally, you will be responsible for all attorney fees (by statute). See 29 U.S.C. 203(m) [definition of “wage”], 29 U.S.C. 211(c) [description of record keeping requirements], 29 U.S.C. 216(B) [penalties for failure to comply].There is a formulary for handling these types of cases. It appears you tried to classify someone incorrectly. Because the FLSA is a statute, you cannot “contract” out of it. Either your employee meets the definition, or he/she does not. While independent contractors have traditionally be defined by the US Tax Code, as a rule, the hallmark of independent contractor is the degree of control. Did you instruct your employee on what he/she was required to do, and how? Did you provide the means to do the work?
You need to nip this quickly to keep potential liability down. If you have a grounds for defense, I’m happy to discuss it — but that is not common in most instances. Usually you get in this situation because the owner sought to keep expenses down, etc. What we do as your attorney is minimize damage and prevent a formal lawsuit that will cost you even more in attorney fees.