Two former employees of Grand Canyon University have brought suit against Grand Canyon University “GCU” alleging that the University failed to pay them for time they worked over 40 hours per week. In a recent filing in the District of Utah federal court, the plaintiffs, Jason Binks and Kevin Jolley, allege that for the time they worked at the Grand Canyon University call center in Utah, they and other employees were given quotas on the number of students they were required to enroll. (A whistle blower action alleging the same conduct was filed several years ago in Arizona and, according to AZ Central.com, was only just recently settled for $5.2 million.)

The Utah unpaid overtime complaint states that GCU “enrollment counselors” who failed to meet these set quotas were put on “performance plans” and were told and/or understood that if their enrollments didn’t go up from there, they would be terminated or otherwise disciplined. In this way, claim the plaintiffs, Grand Canyon University employees were pressured to work hours in excess of 40 per week to make sure they were able to meet the set quotas and to otherwise qualify for incentive-based raises and/or keep from losing a previously-allowed raise. Plaintiffs allege that they should have been paid time and a half for all hours worked over 40 per week — even if they were considered salaried employees — and have sued to recover for the unpaid overtime they say should have been paid them.

A copy of their complaint can be ordered here.

The complaint was filed by Bink’s and Jolley’s attorneys, the Kramer Law Group and the firm of Strindberg and Scholnick, as a “collective action” and is meant to include all other similarly-situated persons who ever worked for Grand Canyon University as enrollment counselors and who were not paid overtime. Former Grand Canyon University employees who want to take part in this action, however, will be required to “opt in” by signing and filing a “consent form.”

A question often arises in unpaid overtime cases, such as is alleged here, where the employee may have signed a severance or separation agreement which appears to prohibit the employee from making any claim under the Fair Labor and Standards Act for unpaid overtime. Long standing case law, however, protects such employees even where the severance agreement is strongly worded to state that any such overtime claims are not allowed. The clear consensus is that any contracts, severance or separation agreements that attempt to cut-off an employee’s claim for unpaid overtime, are void and/or illegal.  Click here for more information on this subject.

Employees who wish to make a claim for unpaid  overtime wages in a case that has already been filed, must affirmatively file a “consent agreement” in order to get unpaid overtime going back two years. However, if the employee can show that the company “willfully” violated the Federal Labor and Standards Act, then they have an extra year under 29 U.S.C. section 255(a), for a total of three years.

Are you a Utah employee entitled to paid overtime? There is a common belief that if you are on salary, then you are not. The truth is that if you can be considered an “exempt” employee, then your are not entitled to overtime. If you are “non-exempt,” however, then you are entitled to overtime pay.

First of all, overtime is defined under Federal law, in the Federal Labor Standards Act (FLSA), as compensation paid to an employee who works more than 40 hours in a work week. The amount to be paid for hours greater than 40 is 1.5 times the normal hourly rate. For example, an employee who made $10 per hour should be paid $15 per hour for all hours over 40 to that work week. A workweek is defined by the FLSA as seven consecutive 24-hour periods, or 168 hours (24X7). The workweek can start on any given day of the week .

Exempt Employees (No Overtime Paid)

The following are employees who would be considered exempt from overtime pay requirements:
-Commissioned sales employees of a retail or service business if more than one-half of the employee’s earnings come from commissions and the employee makes over 1.5 times the going minimum wage;
-Computer professionals: Under the FLSA, section 13(a)(17), certain computer professionals who are paid at least $27.63 per hour are exempt from Federal overtime provisions;
-Drivers, driver’s helpers, loaders and mechanics are exempt from the overtime pay requirements of the FLSA if they are employed by a motor carrier, and if the employee’s duties affect the safety of operation of the vehicles in transporting people or goods across state lines;
-Farmworks that are employed on small farms are exempt overtime pay (as well as minimum wage provisions of the FLSA).
-Salesmen, partsmen and mechanics that are employed by auto dealerships are exempt;
-Seasonal and recreational businesses: these employees are exempt from overtime and minimum wage laws;
-Executive, administrative, professional and outside sales employees. Those that fit in this category are exempt from receiving overtime.

Non-Exempt Employees (Overtime Paid)

Generally speaking, non-management or “blue-collar” employees, on hourly or salary pay, are entitled to overtime. “White-collar” type employees who make less than $455 per week are also generally eligible for overtime. In determining overtime, job titles are irrelevant. Overtime pay eligibility is based on the occupation, wages and job duties.

Other exemptions may apply, and you should check with a lawyer if you have questions about your specific job.

A problem (for employers) arises when the employer “misclassifies” the employee as being exempt, so as to avoid paying overtime. This is called overtime misclassification. For example, an employer cannot call a lower-level employee a “manager” if that person has no real managerial duties. Federal law look to what the employee actually does versus what they may be called.

Federal law requires employers to pay overtime if they call in employees who might have been on “standby” and they end up working more than 40 hours in a workweek. Federal law also will generally require the employee to pay for mandatory training time if this exceeds 40 hours a week as well as “preparation” time, such as putting on a company uniform there at the facility, inspecting their patrol car, checking items in or out, or simply doing company-related paperwork.

Some employers offer or give “comp” time in place of overtime that the employee might be entitled to. This practice violates the FLSA, however, as the employee is in essence only getting 1x their normal hourly rate.

Finally, in this economy, an employee may be understandably reluctant to complain about an unpaid overtime they might have. They are basically worried that they will lose their jobs. Federal law, however, protects the employee by making it illegal for an employer to retaliate against an employee who exercises their rights under the FLSA. While this restriction against retaliation may not prevent an employer from firing an employee, at the point that they do, then that employee also has an additional claim against them for retaliation.

If you have any further questions, please contact the Utah labor and wage attorneys at the Kramer Law Group to discuss your specific case.

If you signed a severance agreement in Utah where you agreed to waive your right to bring a claim for unpaid overtime in exchange for money, you should know that such releases or waivers of your unpaid overtime claims are invalid under the Fair Labor Standards Act (FLSA). In Utah, as well as elsewhere, employers are generally not allowed to base the payment of severance benefits on your agreement to release your claim for unpaid overtime wages. Bottom line: all private employees have a right to minimum wages and to overtime wages under the FLSA – even if they signed a waiver.

Under federal law, your rights to collect unpaid overtime wages are exactly the same as if you had never signed the waiver in the first place. In fact, the only way that these waivers are enforceable is if the waiver or release was supervised by a court or by the U.S. Dept. of Labor. This principle was established in the U.S. Supreme Court case of  Brooklyn Savings Bank v. O’Neill, 324 U.S. 697 (1945).

Even as recently as 2002, this long-standing principle was upheld and even extended to include a state wage and hour claim. See O’Brien v. Encotech Constr. Serv. Inc., 183 F. Supp.2d 1047 (N.D. Ill. 2002). In the O’Brien case, the court invalidated overtime waivers under both the FLSA as well as Illinois law and allowed an overtime class action to proceed. The court found that the public policy of invalidating releases under the FLSA also applied to Illinois wage law claims. By extension, these principles extend to claims brought under Utah’s Payment of Wages Act, Utah Code section 34-28-1.

Since employees are allowed under the FLSA to make a claim for unpaid overtime, it goes without saying that they are entitled to consult with legal counsel of their choice regarding the bringing of such a claim. Any clause in the severance agreement which forbids an employee to speak to others about their claim in either an individual, collective or class context, would be in invalid, just as the overtime waiver is. Furthermore, any provision that requires the employee to aid and assist the employer in defending the non-payment of overtime would likewise be invalid and contrary to rights the employees have under the FLSA.  In short, any clause or provision that either directly or indirectly attempts to dampen or stifle an employee’s ability to bring an unpaid overtime claim would not be upheld if challenged in court.

A claim for unpaid wages and/or overtime wages, must be filed in court within two years. However, where you can show that the Utah employer “willfully” violated the Federal Labor and Standards Act, then you have an extra year. See 29 U.S.C. section 255(a).

In order to prove that the violation was willful, a claimant must show that the employer “knew or showed reckless disregard” for whether the wage and labor conduct was prohibited by the FLSA. See Reich Bay, Inc. 23 F3rd 110, 117 (5th Cir. 1994). If the court does find a willful violation, the award may include the unpaid overtime wages for three years, liquidated damages in an amount equal to the unpaid overtime pay and attorney fees of the aggrieved party.

In this economy, employers are trying to squeeze more work out of employees for less pay. Some even force  their employees work overtime and fail to pay them the time and a half that is required under U.S. Federal law. According to the Fair Labor Standards Act, or FLSA, an employer is required to pay any hourly or “non-exempt” salaried employee time and a half for those hours worked over 40 in a work week.

Employers that don’t follow this law can find themselves on the losing end of a federal wage and hour lawsuit. Under the FLSA, the employer can be on the hook for considerably more than the overtime they chose not to pay their employee. That is because under the law, an employee who was not paid overtime when it was due can bring a claim against her employer not only for her unpaid overtime, but also for what is called “liquidated damages,” which is usually equal to the amount the employer should have paid their employee.

Under the FLSA, an employer is also liable to pay for the employee’s attorney fees and costs. Of course, if they go the distance, they will also pay for their own attorney fees and costs. A simple failure to pay overtime when due could end up costing the employer so much more.

Some instances where unpaid overtime may occur include:

-Working over 40 hours per week without additional payment;
-An employer classifying their employee as a “non-exempt” employee when the employee does not meet the criteria under the FLSA;
-Being required to work through breaks;
-Being required to clock our for short breaks;
-Being required to be on-call, or complete work-related items at home or when you are not on company property working;

So how long does an employee have to bring a claim? The statute of limitations to bring a Utah unpaid overtime claim is two years. However, if the conduct was seen as willful (if the employer knew full well what they were doing), then that federal statute of limitations is increased to 3 years. Further, the statute could be as long as 4 years under Utah law for an unpaid overtime claim. This does not mean you should wait, however. Once you figure out you have an unpaid overtime wage claim, you should meet with a lawyer as soon as possible to discuss the remedies available.

In short, don’t let your employer cheat you out of what is rightfully yours under Utah and federal law. Hold them accountable! Contact a Utah wage and labor attorney today to see what remedies you might have for an unpaid overtime violation.