Frequently Asked Questions

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What is the FLSA?

The Fair Labor Standards Act or FLSA is the federal labor law that provides for overtime wages. It also has provisions on the minimum wage, Equal Pay Act, child labor restrictions, and a variety of other federal labor and employment sections. A key provision of FLSA is that most employees must be paid time and a half for all overtime hours worked.

 

Why do current and former Battelle employees have to join in the lawsuit to be covered by the FLSA wage claim?

The federal wage and hour law (FLSA) will only let employees recover unpaid wages if they are named as plaintiffs in the lawsuit. That is, FLSA requires that each employee that wants to recover unpaid wages has to individually sign a consent form and join the lawsuit and become member of the class.

 

If I don't join the lawsuit, could I still ask for back pay and if the company doesn't pay, could I bring a lawsuit claiming discrimination?

FLSA requires that anyone who wishes to recover back wages  must join the "collective action (class action lawsuit) by filing a written consent to join. If one does not join the class action, he or she will not be able to collect from the recovery in the class action lawsuit. A later suit probably cannot be based on a claim that one is being discriminated against by not being able to recover from the class action recovery, because the Court will allow a certain time and all the current and former employees will be given notice of the class action and an option to file a written consent to join. Therefore, if you wish to get paid from any class action recovery, you must file a written consent to join.

 

Should I be concerned that if I join the class action, the company may change its policies or institute tougher policies that would make life difficult at work?

Under the FLSA the company is prohibited from retaliating against any employee who files a complaint or institutes any proceeding under FLSA or who has or is about to testify in any such proceeding.  Anti-retaliation provisions of FLSA are interpreted broadly in favor of employees.  An employer who retaliates or discriminates against an employee in violation of this statute is potentially subject to fines or even criminal prosecution, and the affected employee is entitled to legal or equitable relief.  In appropriate cases, courts can also award punitive damages.

 

In response to the lawsuit the company, within legal bounds, can establish new policies that may affect the way things are done thereby making life at work more difficult for employees. But, the company cannot under the anti-retaliation provisions of the FLSA and Utah law enforce the new policies only against the employees who join the lawsuit. Thus, if the company implements any new policies, they will affect all employees whether they join the lawsuit or not. 

If I want to be part of the FLSA claim, how do I join?

You have to send a completed Consent to Join form to the class counsel to filed with the District Court.

• Click here for the Consent to Join form in PDF format. Click here for the Consent to Join form in MS Word;

• Print out and completely the Consent to Join form. Remember to sign and date at the bottom.

• Mail the completed, signed Consent to Join form to the following address:

Battelle Class Counsel

716 East 4500 South, Suite N-142

Salt Lake City, UT 84107

How many employees have joined the Class Action?

Currently there are over 125 employees who have sent us a signed consent form.

 

Can the employees who work "day shift" also join the Class Action?

The employer is required to pay for all the time that an employee "works." An employee who is working an "8-hour day shift," but spends more than 8 hours a day working, then the employer must compensate that employee for all the hours worked. And if in a week the employee work over 40 hours, then the time over 40 hours must be paid at overtime at rate of time-and-a-half of his or her regular wage.

 

For example, you work on a "8-hour day shift," but you spend additional half an hour a day performing job-related activities before the start and after the end of your official shift time, and you spend half an hour of your lunch time performing job-related activities.  and end your shift.  Under FLSA you may have performed additional hour a day of work. In that case, you should be compensated for 9 hours a day. Additionally, if you work five days a week for a total of 45 hours, then you must receive overtime for 5 hours in that week.

 

 

What is "hours worked" under FLSA? or What activities qualify as "work"?

The courts have held that work time under the FLSA includes all time spent performing job-related activities which: (i) primarily benefit the employer, (ii) which the employer "knows or has reason to believe" are being performed by an employee, and (iii) which the employer does not prohibit the employee from performing. The activities performed during "off-the-clock" time can be "hours worked."

Courts have held that many activities including; the time spent  "off-the-clock" by employees donning and doffing clothes or safety gear required by the employer (or for employers benefit), staying late after normal work hours without prior authorization or "putting in" for overtime, working through meal periods, and other such activities to be "hours worked" and therefore compensable time.

 

"Early to Work" -- "Late after Work." Employees must be paid FLSA overtime based on all the work they actually do, including performing work ("suffered or permitted" by the employer) outside of normal shift hours.

 

What is "overtime"?

Generally, hours worked in excess of 40 hours per week are considered overtime under FLSA and must be paid at time and a half of the regular wages.  However, some medical and government employees have different threshold of when overtime is triggered. FLSA applies on a workweek basis. An employee's workweek is a fixed and regularly recurring period of 168 hours -- seven consecutive 24-hour periods. It need not coincide with the calendar week, but may begin on any day and at any hour of the day. Different workweeks may be established for different employees or groups of employees. Averaging of hours over two or more weeks is not permitted. Normally, overtime pay earned in a particular workweek must be paid on the regular pay day for the pay period in which the wages were earned.

 

 

At what rate must FLSA overtime be paid?

Overtime must be paid at a rate of at least one and one-half times the employee's regular rate of pay for each hour worked in a workweek in excess of the maximum allowable (generally 40 hours in a week) in a given type of employment. The employers may knowingly or unknowingly miscalculate the "regular hourly rate." Generally, the regular rate includes all payments made by the employer, including longevity pay, hazard pay, shift differentials, and similar nondiscretionary wage augments.

 

The following examples are based on a maximum 40-hour workweek.

• Hourly rate -- (regular pay rate for an employee paid by the hour). If more than 40 hours are worked, at least one and one-half times the regular rate for each hour over 40 is due.

Example: An employee paid $8.00 an hour works 44 hours in a workweek. The employee is entitled to at least one and one-half times $8.00, or $12.00, for each hour over 40. Pay for the week would be $320 for the first 40 hours, plus $48.00 for the four hours of overtime--a total of $368.00.

• Piece rate -- The regular rate of pay for an employee paid on a piecework basis is obtained by dividing the total weekly earnings by the total number of hours worked in that week. The employee is entitled to an additional one-half times this regular rate for each hour over 40, plus the full piecework earnings.

Example: An employee paid on a piecework basis works 45 hours in a week and earns $315. The regular rate of pay for that week is $315 divided by 45, or $7.00 an hour. In addition to the straight-time pay, the employee is also entitled to $3.50 (half the regular rate) for each hour over 40 -- an additional $17.50 for the 5 overtime hours -- for a total of $332.50.

Another way to compensate pieceworkers for overtime, if agreed to before the work is performed, is to pay one and one-half times the piece rate for each piece produced during the overtime hours. The piece rate must be the one actually paid during nonovertime hours and must be enough to yield at least the minimum wage per hour.

• Salary -- the regular rate for an employee paid a salary for a regular or specified number of hours a week is obtained by dividing the salary by the number of hours for which the salary is intended to compensate.

If, under the employment agreement, a salary sufficient to meet the minimum wage requirement in every workweek is paid as straight time for whatever number of hours are worked in a workweek, the regular rate is obtained by dividing the salary by the number of hours worked each week. To illustrate, suppose an employee's hours of work vary each week and the agreement with the employer is that the employee will be paid $420 a week for whatever number of hours of work are required. Under this agreement, the regular rate will vary in overtime weeks. If the employee works 50 hours, the regular rate is $8.40 ($420 divided by 50 hours). In addition to the salary, half the regular rate, or $4.20 is due for each of the 10 overtime hours, for a total of $462 for the week. If the employee works 60 hours, the regular rate is $7.00 ($420 divided by 60 hours). In that case, an additional $3.50 is due for each of the 20 overtime hours, for a total of $490 for the week.

 

If a salary is paid on other than a weekly basis, the weekly pay must be determined in order to compute the regular rate and overtime pay. If the salary is for a half month, it must be multiplied by 24 and the product divided by 52 weeks to get the weekly equivalent. A monthly salary should be multiplied by 12 and the product divided by 52.

 

Does it matter if the employee did not request or "put in for" the time spent working?

Probably not. "Failure to ask" is not a defense for an employer in an FLSA case. Failure to ask might conceivably be relevant on the question of whether an employer knew or had reason to believe that an employee was performing off duty work, but even in this situation failure to ask would be only one factor on the question.

How does an employee prove that the employer knew or had reason to believe that off the clock work was being performed?

An employer will be held to "know" what it "could have found out" if it had paid attention to what its employees were doing. The legal standard is whether an employer could have learned of the handler's activities by making reasonably diligent inquiries. According to the courts, it is a "rare" case in which an employer will be found to lack the requisite knowledge when the activities in question are "part and parcel" of an employee's job, unless the employee has deliberately hidden the fact that s/he is performing them.

How do I prove the amount of time spent doing off-the-clock compensable activities?

It is up to the employer to control the work of its employees, and to maintain records of the time spent by employees performing compensable activities. If an employer does not maintain the required records, the employee is entitled to recover based on good faith, reasonable and realistic estimates.

 

I already get overtime. Does the FLSA apply to me?

Maybe. Many employees put in off the clock time for which they are entitled to be paid. The Act defines "work" very broadly, and sometimes employers have failed to capture or compensate a variety of "off the clock" activities which count as work under the Act.

Does it matter that I never reported the time or asked for overtime?

Probably not. It is the employer's obligation to control the work. If an employer does not wish work to be performed it must prohibit it. "Failure to ask" for overtime is usually not a defense for an employer in an FLSA case. An exception might be if the employer has a requirement that generally all time be reported and actually has enforced it, or if an employee's failure to report means that the employers did not know the work was being performed.

 

How are employees protected from retaliation from Battelle?

Under both the Fair Labor Standards Act and Utah labor laws, it is unlawful for Battelle to retaliate against any employee who pursues their legal rights.  The FLSA and Utah law make it unlawful to retaliate against an employee for asserting a claim for overtime.  In fact, under Utah law, retaliation by an employer against an employee for exercising his or her right to be paid for unpaid wages is a crime. 

 

Any retaliation by Battelle against an employee would also create additional legal claims by the adversely affected employee against Battelle and/or the Battelle employee(s) who are responsible for the retaliation, including possible claims for wrongful termination.  If you believe that Battelle has retaliated against you because you have joined this lawsuit, or have expressed an interest in this lawsuit, or simply because you have questioned whether you are entitled to overtime pay, you should contact Class Counsel immediately.

What do I get if I win?

Money. Successful FLSA plaintiffs are entitled to back pay for all unpaid overtime, usually beginning two years before the complaint is filed. In most cases, they are also entitled to double the amount of back pay. This is called liquidated damages, and is essentially in lieu of interest on the unpaid wages. The Act also requires the employer to reimburse out of pocket litigation expenses and pay an additional attorneys' fee award. Some pre-tax FLSA recoveries by employees have been quite substantial. For employees nearing retirement, back pay awards may increase pension benefits.

 

What is the effect of an FLSA recovery on a pension?

This will depend on the pension system's rules. However, at least some of an FLSA award may be considered "back pay." Therefore, if pensions are based on a percentage of wages earned or "average salary," an FLSA recovery may increase the amount of pension an officer can receive.

 

What are liquidated damages?

The FLSA provides that a successful employee is usually entitled to double the amount of unpaid back wages, called "liquidated damages." Essentially, liquidated damages are in lieu of interest. An employer can avoid paying liquidated damages only if it shows that it acted in good faith in failing to pay for off the clock work, and that it had a reasonable basis to believe that it need not pay for off the clock work. "Good faith" has a special meaning under the FLSA, and requires that employers have made specific investigation of the application of the FLSA to particular types of employees. Liquidated damages are the rule, not the exception. Employees are normally entitled to liquidated damages.

 

How do employees pay their FLSA lawyers?

This is between the individual employees and the lawyers. Many FLSA lawyers will take FLSA cases on some variation of a "contingency fee." This usually means that the employees pay no legal fees unless and until they win the case, and then fees are based on a percentage of the amount recovered. Successful FLSA plaintiffs are entitled to an attorneys' fee award from the employer in addition to any other recovery.

What actual financial costs or risks are there for an employee to bring an FLSA case?

This is between the individual employees and the attorney. If the employee hires attorneys on a contingency fee basis, there are no "up front" expenses for legal fees.

 

 

How long does an FLSA case take?

Who knows? Almost everyone understands that legal proceedings are often slow. Most FLSA cases are filed in federal courts, and how fast a case can get to trial varies from district to district (and judge to judge). Many FLSA cases settle before trial, but this is unpredictable.

 

 

What are the time limits on FLSA suits?

The FLSA normally permits recovery for work performed beginning two years before a complaint is filed in court (and continuing "forward" until the case is resolved). Recovery for this period is essentially on a "no fault" basis. An additional year's recovery period is permitted if the employer "knew" that its employment and pay practices violated the FLSA, but "disregarded" these obligations. "Third year" cases are rare, but not unheard of. Nothing but the filing of a legal complaint in court "stops the clock." (A complaint to the employer, or the Department of Labor, does not "toll" the FLSA statute of limitations.)

 

What are the later consequences of an FLSA case?

The FLSA prohibits retaliation or discrimination against an employee who brings an FLSA case. These provisions have "teeth," but do not cover "routine hassling." The FLSA does not prohibit management from changing working conditions or schedules to minimize or eliminate FLSA overtime liabilities in the future. Local laws or collective bargaining agreements may govern and limit the changes an employer may make.

 

Do all employees have to participate in an FLSA suit if one or more employees decide to sue?

Similarly situated employees are required to join an existing FLSA case by filing their consent for them to recover any unpaid overtime and other damage.  If an employee does not join an existing FLSA suit s/he will not be entitled to recover any money as a result of the suit. And as a practical matter, any downstream consequences which may result from one employee bringing an FLSA action (such as schedule restructuring) will likely apply equally to all similar employees in an organization.

 

What effect do the provisions of a collective bargaining agreement have on FLSA overtime rights?

Almost none. FLSA rights cannot be waived, by collective bargaining or otherwise. (Generally, employees are entitled to the benefits of the FLSA or their CBA, whichever is more favorable. However, a violation of a CBA would not itself be a violation of the FLSA and would not be enforced in an FLSA legal action.)

 

Where do I get more information?

Good question. If you have any other questions you would like answers to, e-mail your question to Class Counsel and we will post the answer on this page.