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It pays to know the law on wages

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Alexa Brenneman, a former member of the Ben-Gals Cheerleading Squad, has filed a class action lawsuit in the United States District Court for Southern Ohio, claiming the NFL football organization, the Cincinnati Bengals, Inc., failed to pay her and other team cheerleaders for hours of worked.

Brenneman claims the Bengals paid her and other cheerleaders $90 per home game, but failed to pay for mandatory practices, public appearances, and pregame events. Brenneman claims her effective rate of pay was less than $2.85 an hour. Ohio’s 2013 minimum wage rate was $7.85.

In her lawsuit, Brenneman seeks compensation under the federal Fair Labor Standards Act (FLSA) and under the Ohio Minimum Fair Wage Standards Act. She also seeks to certify a class action lawsuit on behalf of other Ben-Gals who Brenneman alleges the Bengals also failed to pay.

Brenneman’s lawsuit provides a good example of how some employers may violate federal and state wage laws, sometimes with a good faith belief the employer is in full compliance with the law. While the details of the Bengals’ defense to Brenneman’s claims are not yet known, the Bengals could have an uphill battle, if Brenneman was not paid for hours worked, and she was not a volunteer or otherwise exempt from federal or state wage laws.

Below is a brief summary of some key provisions to both the FLSA and Washington state’s wage and hour law.

Both the FLSA and Washington state’s wage and hour law require a person be paid a minimum wage for all hours worked, and overtime for any hour worked in excess of 40 hours in a seven-day work week. When paying overtime, an employer must pay at least one and one-half times the worker’s regular hourly rate. The FLSA’ minimum wage is currently $7.25 per hour, and Washington state’s minimum wage is currently $9.32 per hour. Employers in Washington state are subject to and must pay the higher of these two minimum wages, namely they must pay the Washington rate of $9.32 per hour.

There are some exceptions to the FLSA and Washington’s minimum wage and overtime requirements. The following are examples of some exempt job positions that do not require an employer pay overtime:

Executive, administrative, and professional employees, outside sales employees, and certain skilled computer professionals

Employees of certain seasonal amusement or recreational establishments

Employees of certain small newspapers and switchboard operators of small telephone companies

Seamen employed on foreign vessels

Employees engaged in fishing operations

Employees engaged in newspaper delivery

Farm workers employed on small farms (i.e., those that used less than 500 “mandays” of farm labor in any calendar quarter of the preceding calendar year)

Casual babysitters and persons employed as companions to the elderly or infirm

Employers, however, should be cautions when classifying a position as exempt, and not paying overtime. Most jobs require overtime pay, and the ramifications of a misclassification can be severe. An employer could be obligated to pay past due overtime, based on the 40 hour per week, at per hour pay rate set by the employee’s salary.

This could be true even if the employer would have paid the employee a reduce hourly wage, rather than a higher salary, if the employer had properly classified the employee. The employer could also be liable for the employee’s legal fees and litigation costs, and potentially double the amount of the unpaid wages, if the violation of the law is found to have been willful.

For example, some employers mistakenly believe a salaried employee is automatically an exempt employee, and that no overtime is due. Being a salaried employee does not, alone, avoid wage and overtime obligations or make the employee’s position exempt. The legal analysis is more complicated.

The question often becomes whether the employee’s job functions could permit the employer to properly classify the employee as an executive, administrative, or professional employee. These are three of the more common “white-collar” exemptions, and each is briefly summarized below:

In general, an executive employee must be paid at least $455 per week on a salaried basis, primarily perform a management function, and supervise at least two full-time employees.

An administrative employee is generally one who is paid at least $455 per week on a salaried basis, primarily performs office or non-manual work related to management or business operations, and exercises discretion and independent judgment with respect to matters of significance.

The professional exemption generally requires a salary paying at least $455 per week, work that requires advanced knowledge in the field of science or learning (predominantly intellectual in character and requiring consistent discretion and judgment), and the employee gained the advanced knowledge by a prolonged course of specialized intellectual instruction. Examples of a profession exempt employee could include software engineers, college professors, stock brokers, architects, marketing consultants, and attorneys.

Examples of some non-exempt positions could include customer service representatives, administrative assistants, office clerks, skilled tradesmen, maintenance workers, retail salespersons, and assembly-line workers.

It will be interesting to see how the Bengals respond to Brenneman’s lawsuit. But, regardless of merits of Brenneman’s claim, employers can learn from Brenneman’s lawsuit. Employers should use caution when analyzing their wage and hour obligations to their employees, and carefully determine whether a person’s job is exempt from federal and state wage and hour laws.

Brian A. Walker represents businesses and individuals in commercial, business, employment, and real estate related litigation and transactions from the Wenatchee office of Ogden Murphy Wallace PLLC.

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