Category Archives: FLSA

“What to Expect During Your Employment Law Dispute” – Part 5: Mediation

The Local Civil Rules for the U.S. District Court for the District of South Carolina require that all civil cases be mediated with prior to trial. As many, if not most, types of employment cases are litigated in the federal courts, there is a good chance that you will attend mediation at some point in the course of your employment case.

Mediation is an informal and confidential method of resolving employment disputes with the assistance of a neutral third party mediator. In the setting of employment litigation, the mediator is usually an attorney and it can be very beneficial if the mediator has knowledge and experience in the field of employment law. The mediator is not a judge or an arbitrator and his or her role in mediation is not to decide who is right or wrong or to make a ruling on the merits of the underlying case. The mediator’s role is to help the parties reach an agreement on how to resolve a case. Generally, there is no requirement that the parties resolve their case in mediation and, if the parties are unable to settle, the case then moves on to or proceeds with the next stage of litigation.

Generally, the mediation will begin with both parties and their counsel in the same conference room and with the mediator explaining the process. This explanation will usually include a discussion about confidentiality and will be followed by the parties signing a mediation confidentiality agreement, which basically requires the parties to keep all settlement discussions that occur during the mediation confidential. Agreements of this nature usually prohibit the parties from utilizing statements made in the mediation as a part of the case and assure each side that the mediator will not and cannot be called as a witness in any litigation.

What happens next in the opening portion of the mediation is really up to the mediator. Some mediators will ask each party to explain their side of the case. Some mediators will ask each party to state their proposed resolution of the conflict. Some mediators do not allow opening remarks by either side and put the parties and their counsel in separate rooms after explaining the mediation process. Some mediators begin the mediation with the parties in separate rooms and explain the process separately to each side rather than with the parties together as a group. Regardless of how the mediator chooses to begin the mediation, the parties will be placed in separate rooms after the mediation gets going and the mediator will meet with each side separately to discuss the strengths and weaknesses of the case and to encourage settlement and discuss the potential ways in which the case could be resolved. The mediation will proceed with the mediator privately discussing the case and discussing potential resolutions or offers with each side. The mediator will convey any such resolutions or offers that a party agrees with to the other side and so on.

If the mediator is able to resolve some or all of the case, the mediator will generally summarize in writing the terms upon which the parties were able to agree at mediation and have each side sign the same. Such informal, and often brief, mediation agreements are typically enforceable if they are signed by all parties and contain the basic terms of the settlement agreement reached at mediation. After the mediation, if the parties reach an agreement, they will usually have to finalize the agreement in a more formal and detailed written settlement agreement.

Mediation can be a great way to resolve employment disputes before or after litigation commences. In mediation, both parties have at least some control over the ultimate outcome of the case. Such is not usually the case when matters are resolved in court by a judge or a jury.

How To Hire a Law Firm For your Employment Law Dispute

At Falls Legal we often receive questions from employees about various types of employment law issues.  These questions generally involve an employee who is experiencing a problem at work.  I find that preparing potential clients for the types of information we need to know and questions that they should ask is beneficial for everyone.  So here goes…..

1)  Don’t use legal terms of art such as “hostile work environment,” “wrongful termination,” or “retaliation.”

We often receive calls from employees who feel they have been “wrongfully terminated.”  “Wrongful termination,” “hostile work environment,” and “retaliation” are legal terms with very specific definitions associated with each.  Only after you have spoken with a lawyer, will you be able to determine whether your case falls into one of these categories.  For some previous blog posts  regarding hostile work environment, retaliation, and wrongful termination, click here.

2)  Call Multiple Lawyers

It is often a good idea to call multiple lawyers before selecting a firm to assist you with your employment matter.  Sometimes you should call other lawyers to see if they will handle your case for a different type of fee (contingency, hourly, etc.)  Other times you should call different attorneys to see if they disagree with the analysis and have other theories on your case.  Sometimes you should call other lawyers just because you did not get a good feel from the first lawyer’s office you called. We are happy to make referrals to other employee representation attorneys in the area if we cannot handle your case.

3)  Be Honest

No case is perfect and we understand that.  In order for us to fully assess your case, we need to know what the employer is going to say.  In fact, I always ask potential clients “what is the employer going to say their reasoning for the action is?”  Many times, the employee will know or have a good idea.  If you have had performance issues, suspensions, or are presently on a performance plan, I need to know that.  An attorney cannot protect you from things that he or she does not know.  If you are honest and acknowledge the weaknesses in your case, this assists in determining the best strategies to help you combat these issues.  For example, if you are having performance issues at work but other employees that are not in your protected category are also having these issues and being treated more favorably, that might have an impact on your case.

4)  Talk About Your Proof

We need to know about any paperwork, witnesses, or other evidence you have that supports your claim.  If you have a contract or Employee Handbook, we will need to see that.  If you have emails that are relevant, we will need these as well.  The names and contact information of potential witnesses are also helpful.

5)  Understand That The Process Is Slow

Employment law cases are special because, in many situations, you must first file a complaint with the EEOC before you can file a lawsuit in open court.  There are strict timeframes for doing so.  The EEOC process can take up to a year before you are even able to file in court.  If your case proceeds to court after the EEOC investigation is complete, that can take 1-2 more years.  There are some cases where the employer is willing to discuss an early resolution to the case but those cases are rare exceptions.

In sum, if you are having an employment related issue at work, you should proactively reach out to multiple South Carolina employment law attorneys to determine whether it is beneficial to proceed with some type of claim.  When you do so, be honest, lay out the facts in a concise manner, tell us what the employer is going to say, and give us a synopsis of your proof.  Also, understand that not all unfair treatment at work is legally actionable.  There are many times in which an employer is treating an employee in an unfair manner but it is not necessarily illegal treatment.

Overtime Exemption Laws may get an Overhaul

As you may have heard, President Obama has directed the Department of Labor to “modernize and streamline” overtime exemptions. The directive aims to simplify and minimize exemptions that prevent employees from receiving overtime pay under the Fair Labor Standards Act. Some of the primary areas addressed are exemptions relating to white collar employees, home health care workers, and computer professionals, to name a few. The proposed changes could mean that many American employees become entitled to overtime pay, even if they are not currently receiving it.

The FLSA requires that all non-exempt employees be paid one and one half times their normal rate of pay for every hour over forty hours worked per workweek. President Obama’s proposed changes could affect many American employees who work significant overtime hours. More to come.

If you have questions about your entitlement to overtime pay in South Carolina, you should consult a South Carolina employment lawyer to discuss.

Common Overtime Myths

Overtime laws are somewhat confusing for the weary and many employees have misconceptions about whether or not they are entitled to overtime. The Fair Labor Standards Act (“FLSA”) is a federal law that governs minimum wage and overtime issues in the United States. Some states have their own version of the FLSA governing overtime and minimum wage and such state-specific laws provide for greater employee protection in most cases than does the FLSA. South Carolina does not have a state law governing overtime pay, so the FLSA is the whole story for South Carolinians when it comes to overtime.

Some common myths and misconceptions about overtime pay are:

Myth #1: You are not entitled to overtime if you are paid a salary

Perhaps the biggest overtime myth is that salaried employees are not entitled to overtime pay. There are certain statutory exemptions for employees under the FLSA that do require an employee to be paid a salary in order to fall under the exemption, but salary is only one part of a multi-prong test in these instances. If the other criteria for an exemption are not met, then the fact that an employee is paid on a salary alone will not keep the employee from being entitled to overtime. The fact of the matter is that while there are many hourly employees who are entitled to overtime, there are also many salaried employees who are entitled to overtime as well. If you are paid a salary, you are still entitled to overtime unless you meet all of the requirements for one of the exemptions under the FLSA and the other requirements for exemption are typically more difficult to meet than the salary requirement is.

Myth #2: Compensatory time can be given in lieu of overtime pay

Unless you are employed by a public employer, such as the local, state or federal government, your employer cannot give you compensatory time in lieu of overtime pay. Private employers cannot even give their non-exempt employees a choice between overtime pay or compensatory time off under the FLSA.

Myth #3: Time spent travelling for work does not count towards hours worked for purposes of calculating overtime

While time spent commuting to and from work is not considered part of the hours worked in calculating overtime pay, employee travel that is part of the normal workday, such as travel time to and from job sites or client meetings, is compensable work time and does count towards the calculation of total hours worked for purposes of calculating overtime.

While these three myths represent some of the more common misunderstandings in regards to overtime pay, there are many, many more. It pays for employees to understand exactly how overtime laws apply to their unique situations.

Supreme Court Holds that Employees Making Oral Complaints of FLSA Violations are Protected from Retaliation

The U.S. Supreme Court’s March 22, 2011 ruling in Kasten v. Saint-Gobain resolved a long-standing question of whether oral complaints are protected from the FLSA’s anti-retaliation provision, which prohibits employers from firing an employee because the “employee has filed any complaint… under or related to the Act.”  The Court held that FLSA complaints could in fact be “filed” verbally under the meaning of the statute and that a written complaint of an FLSA violation was not required in order for a complaining employee to be protected from retaliation.  The federal appellate circuits have come to different conclusions in this regard prior to the ruling, creating a split between circuits on the issue.

The FLSA requires employers to pay non-exempt employees one and a half times their regular rate of pay for all hours worked in excess of forty hours per week.  The FLSA’s anti-retaliation provision prohibits employers from terminating or taking other adverse employment action against an employee because he or she made a complaint of a violation of the Act.

In Kasten, the employee claimed that he had made several oral complaints to his supervisors that the company’s location of time clocks was illegal under the FLSA because it prevented him and other employees from being compensated for time spent handling their work gear.  The employee claimed that his employer terminated him for making such complaints and that the termination fell under the definition of retaliation under the FLSA.

The Supreme Court agreed, stating a complaint is “filed” for FLSA purposes when “a reasonable, objective person would have understood the employee to have put the employer on notice that the employee is asserting statutory rights under the Act.”  The Court went on to state that while the Act’s language does contemplate “some degree of formality” in the filing of a complaint, the intent and purpose of the Act is to protect employees from FLSA violations, as well as to protect them from being retaliated against for complaining about violations.

The ruling provides broader protection for employees who complain about FLSA violations, such as not being paid for overtime.