Former Marshalls assistant managers sue TJX Cos.

Two former assistant store managers who worked at Marshalls have filed suit in US District Court in Massachusetts against The TJX Companies and related entities, alleging that the company violates wage and hour laws.
The suit, filed Dec. 11, names Marshalls of MA, Inc.; Marmaxx Operating Corp., doing business as Marshalls HomeGoods; Marshalls; T.J. Maxx HomeGoods; and HomeGoods, Inc. The plaintiffs are seeking class action status and are seeking compensation for allegedly unpaid wages, damages and attorney’s fees.
According to the suit, Celina Roberts worked an assistant store manager at Marshall’s in Laredo, Texas. She was hired in May 2008 and promoted in June to the assistant manager position, the suit states. Roberts worked 60 to 70 hours a week and often worked six or seven days a week, according to the suit. As an assistant store manager, she did not receive overtime for working more than 40 hours, the suit said.
Her work was “largely unrelated to the management of the store,” the suit alleges. Rather, Roberts on a daily basis stocked merchandise, cleaned, worked the register, unloaded delivery trucks and the like, the suit alleges.
Roberts alleges she complained to the store manager and to a district manager that she should be paid for the hours she was working and said that, if she had known she would end up working as many hours as an assistant manager, she would have remained a back room coordinator, “performing almost identical duties, and receiving overtime pay,” the suit states.
Plaintiff Anthony Sciotto was hired as an operations assistant store manager at Marshalls in Westbury, N.Y., the suit states, and worked at various other Marshalls locations in New York. The suit alleges that Sciotto worked a minimum of 10 hours a day, five days a week, and at times, up to 70 hours a week.
Like Roberts, the suit alleges, Sciotto largely was not performing managerial duties and was instead performing routine tasks such as stocking merchandise, unloading trucks “and other duties typically expected of hourly employees.”
Sciotto and other assistant store managers “had to perform such non-exempt duties because there were an insufficient number of hourly employees available to perform such tasks,” the suit said.
The suit alleges that Marshalls and HomeGoods stores operate under the same corporate policies and all assistant managers share the same uniform job descriptions.
A spokeswoman for The TJX Companies declined comment, citing company policy regarding pending litgiation.
The lawsuit in Massachusetts mirrors a separate case against T.J. Maxx in U.S. District Court for Eastern New York, which was filed in early 2011 by a former assistant manager in New York. Last November, a federal court judge in New York granted conditional certification for a collective action lawsuit, which is similar to a class-action suit, in that case.
The Massachusetts case against focuses on Marshalls and HomeGoods, rather than T.J. Maxx, but makes similar allegations against the Framingham company.
– Staff Writer Mary Moore, Boston Business Journal
Read the original article from Boston Business Journal here

Overtime Pay for Home Health Care


overtime pay home healthWith the approach of the retirement of a huge number of Baby Boomers, the home health care industry is quickly becoming one of the fastest-growing and most scrutinized young industries in the country. Among the features of the industry that might soon be changing is its exemption from overtime pay laws. There are valid arguments on both sides of the issue, and only time (and a healthy dose of politics) will decide the issue.
The Controversy
Since its solidification as a large-scale field of work, in-home care has been exempt from some of the laws that other employers and employees must follow. While this has given caregivers a great amount of flexibility in the way they are paid by clients and the way they record their work, it has also drawn the attention of some who claim that the employment rights of caregivers are not being protected. Some caregivers might find themselves working excessive hours under difficult conditions, with no promise of extra compensation in return.
View #1
Those advocating the removal of the industry’s exemption from overtime law say that the problem is clear: In-home caregivers should have the same protections that most other employees enjoy. Nurses, doctors, and even housecleaners receive overtime pay, and non-medical caregivers should get the same. In many cases, there is a concern that family members of seniors could take advantage of the exemption and ask caregivers to do more work, possibly on their own time, without paying them more.
View #2
The opposite side—including many members of the caregiving field itself—argue that the overtime exemption is important and valuable. It gives caregivers the liberty to do the job that needs to be done without keeping cumbersome logs. The nature of the job is so complicated that overtime does not work the way it does in other industries. For example, if a caregiver wants to take some of the client’s laundry home and do it there, would she have to log the time she spends doing it and claim overtime pay for it?
At this point, and certainly in the near future if these questions continue to swirl, in-home caregivers are in a legally murky situation. If you have confusion about what your rights are in your situation, let Valli, Kane & Vagnini help you figure it out. We look forward to meeting you and helping you with your legal needs.

Working Off The Clock? Think Again


working off the clockWith the American economy in the midst of its worst downturn in decades, corporations are trying to squeeze that last buck out of every corner they can. Job satisfaction is going down across the board. One largely unsung issue that may be elevating to epidemic proportions is “Off the Clock” work.
For many, going unpaid for the work you perform for your employer is illegal.  Many corporations in the U.S. are, unfortunately, asking their workers to buck up and work without minimum wage or overtime pay.  This violates both New York and Federal law. The plain fact of the matter is that the laws are designed to protect during the bad times as well as the good. Just because there is not as much money to go around does not mean that it is all right to ask workers to work off the clock without compensation.
Full Time Employees in New York
For the most part, New York State follows Federal guidelines when it comes to minimum wage and overtime. If a non-exempt employee is performing work of any sort for their employer, they are to be paid at least minimum wage for their work.  If they are working over forty hours in a work week, then any time worked above that is eligible for overtime pay. Live in employees may claim overtime after forty-four hours as well. Naturally, standard exemptions apply to certain types of employees, including certain interships.
However, a controversial case is brewing in New York that might potentially change how the law sees interns nationwide. An intern is suing Harper’s Bazaar, claiming that minimum wage is due to all intern workers and that internships are exploitive. We will follow this case closely and continue to report on its significant role in the wage and hour litigation world.
Full Time Workers That Receive Tips
If your employer claims that you are not entitled to overtime pay because you receive tips in your line of work (such as a restaurant server, delivery driver, dancer, etc.), then your employer is out of compliance with New York and Federal law. All work performed by these types of workers are subject to minimum wage and overtime law.
If you are a non-exempt, hourly worker, an employer cannot refuse to pay you time working off the clock.  You are entitled to be paid for all hours work at minimum wage or an overtime rate if over 40 hours in a work week.  If you feel you are being forced to work “off the clock” meaning you are not being paid for your time, then you should contact an attorney familiar with these laws immediately.  For a free consultation, contact the law offices of Valli Kane & Vagnini, LLP at (866) 441-2873.  You need a talented lawyer that is not afraid to take on exploitive employers that disregard the law.

Misclassification as an Exempt/Salaried Employee: What it Means to You

Wages and the Law
Starting early in the new millennium, around 2003, article after article appeared in business journals telling businesses to brace themselves. These articles warned employers that if they have been misclassifying employees, and not giving them all the pay they have earned, they should expect wage and hour lawsuits.  These articles, which appeared in high profile business journals such as the Wall Street Journal and Kiplinger’s, proved to be prophetic. Since 2003, wage and hour collective actions have exceeded employment discrimination class action lawsuits. One of the more common violations of wage and hour law is employers classifying an employee as “exempt” when in fact they are not. Exempt employees, as the name suggests, are not subject to certain wage and hour laws. When a salaried employee is misclassified as exempt, they are often unaware that they may be entitled to overtime pay.  Many time, the misclassification by the employer is a method of saving a bundle in overtime and “off the clock” pay.  While most states have a wage and hour law on the books, the federal law applied across the nation is known as the Fair Labor Standards Act (FLSA). Since the most visible impact of the FLSA has been on overtime, it is sometimes referred to as the “overtime law”.  Besides overtime and off the clock work, areas covered by the FLSA are minimum wage, child labor, and equal pay.
Excemptions to the FLSA
As discussed, some jobs are exempt from the FLSA.  Employees who legitimately fall into these exempt jobs are not entitled to minimum wage or overtime as long as the requirements for these exemptions are met.  Examples of jobs excluded from overtime rules are movie theater employees, agriculture employees, and certain commissioned retail sales positions.
There are at least three major exemptions to the overtime law under the FLSA, the Executive/Management, Professional and Administrative Exemptions. Traditionally, the positions falling into these categories are classified as exempt, salaried positions.  However, often they are not.  The exemption that creates the most legal controversy is the Executive/Management Exemption.  Many employers assume that if they classify an employee as management and that employee is salaried at a minimum of $23,600 per year, that employee is exempt. This is a misconception. In addition to the employee merely being classified as management, the employer has to demonstrate the employee is truly working in management and actually has authority and supervises at least two individuals. In fact, an employee is subject to a duties test to determine whether they fit into the exemption. This test involves meeting objective standards to determine if that employee is truly part of management and is not being passed off as management to avoid overtime pay and other FLSA requirements. If the test finds that an employee classified as management has primary duties not involving management, there has been a misclassification as a salary employee and that employee is not exempt from being governed by the FLSA. As such, such an employee would be entitled to be paid for any hours of worked performed over 40 in a work week at the rate of time and half.  Under the FLSA, the employee is also entitled to liquidated damages equaling the amount of overtime pay withheld from the employee, as well as interest and attorney’s fees.
If you think you have been misclassified or are owed overtime pay or minimum wage, you can contact the U.S. Department of Labor, Wage and Hour Division or Valli Kane & Vagnini, LLP to learn what your rights are.

Kudo v. Panda Express

This action was instituted to address a failure to pay overtime to General Managers of Panda Express Restaurants nationwide. The complaint alleges that General Managers across the country were required to work in excess of 40 hours per work week without overtime pay. The complaint further alleges that Panda Express misclassified these managers as exempt based on their titles alone and required them to perform the tasks of hourly workers such as ringing registers, serving food and cleaning the restaurant.
Downloads:

  1. Panda Express Overtime Complaint
  2. Court Order Conditionally Certifying Overtime Class
  3. Notice to join Panda Express Lawsuit (English)
  4. Notice to join Panda Express Lawsuit (Chinese)