South Florida Personal Injury Blog

Florida overtime attorneys Alitowksi & Moore provide answers to questions about employment law.

Overtime case Regarding Dozer Operator in Florida.

Recently, in February of 2010, the United States District Court for the Middle District of Florida decided a case that dealt with the Fair Labor Standards Act (FLSA) for unpaid overtime wages and retaliation claim. (See Bond v. Ripa & Associates, LLC, 2010 WL 457324 (M.D.Fla.). In Bond, Plaintiff worked for a Tampa-based civil construction company from June 2002 through August 2008. He was a foreman then Assistant Superintendent then back to a Foreman and finally he was fired because of a valid reduction in force firing by the company because the business was slow. Id.
On October 15, 2008, Plaintiff filed his complaint for unpaid overtime and for retaliation. As stated, an employee is “generally entitled to receive overtime pay at one and one-half times their regular rate for all hours worked in excess of forty per week as provided by the FLSA.” (cites omitted). Id. “Exempted from overtime pay requirements is “any employee employed in a bona fide executive, administrative, or professional capacity.” (cites omitted). Id.
“To qualify for the executive exemption an employee must: 1) be compensated on a salary basis at a rate of not less than $455 per week; 2) be an employee who “primary duty” is management of the enterprise that employs him, or a customarily recognized department or subdivision thereof; 3) customarily and regularly direct the work of two or more other employees; and 4) have the authority to hire or fire other employees or whose suggestions and recommendation as to the hiring, firing, advancement, promotion or other change of status of other employees are given “particular weight.” (cites omitted). Id.
In this case, Plaintiff concedes that the first and third requirement are met. He does argue that the other two are not. Id. As to the “primary duty,” the factors to be considered include: “1) the amount of time spent performing management duties; 2) the relative importance of the management duties compared with other types of duties; 3) the frequency with which an employee may exercise discretionary powers; 4) the employee’s relative freedom from direct supervision; and 5) the relationship between the employee’s salary and the wages paid to other employees for the kind of non-management work performed by the employee.” (cites omitted). Id. One must look beyond the employee’s title and look at the specific duties performed by the employee. Id.
Pursuant to Plaintiff’s deposition, Plaintiff in this overtime case spent 80% of his time running heavy equipment, a non-managerial duty. Id. “An employee who does not spend more than 50% of their time performing exempt duties may, nonetheless, meet the primary duty requirement if the other factors support such a conclusion. (cites omitted). Id. “However, where an employee spends the majority of his time on non-exempt work and has admittedly few managerial-type obligations, there is at least a factual question as to whether the non-exempt duties are comparatively more important than the exempt duties.” Id. Plaintiff testified that his non-managerial duties took up most of his time and that he infrequently exercised his discretion. Id.
As to an Administrative Exemption for FLSA overtime, to qualify an employee must: “1) be compensated on a salary basis at a rate of not less than $455 per week; 2) be an employee whose primary duty is the performance of office or non-manual labor directly related to the management or general business operation of the employer or its customers; and 3) be an employee whose primary duty included the exercise of discretion and independent judgment with respect to matters of significance.” (cites omitted). Id.
As before, in the case at hand, Plaintiff argues that the Florida unpaid overtime wages he was entitled to were not defeated by the Administrative Exemption. He was not an Administrator. But, since there were questions of fact, the Defendant’s Motion for Summary Judgment was denied. Id.
As for the overtime retaliation claim, under the FLSA, “a plaintiff must show “1) that he engaged in an activity protected by the FLSA that was known to his employer; 2) that he suffered an adverse employment action, and 3) that there is a causal connection between his participation in the statutorily-protected activity and the adverse employment action.”” (cites omitted). Id. As to this FLSA claim, Plaintiff’s claim was dismissed because he did not put forth any evidence that showed that his protected activity was known to his employer or that there was a causal connection. Id. And, the Court when on to say, even if he could prove it, the defendant had a legitimate reason for firing him in that his job was eliminated or consolidated due to a severe decrease in work. Id.
If you have been involved in an Florida FLSA overtime unpaid wages case that you would like to find out the answers to, please call and speak to Florida FLSA overtime unpaid wages lawyers Andrew S. Alitowski or William Ryan Moore at 888-ASK-ANDREW (275-2637). We are available 24 hours a day, 7 days a week.
If you are injured…Ask Andrew!!!