Do you deserve overtime?

Posted by Kristina Cowan

Overtime suits are taking the labor-law stage by storm, according to recent news reports (BusinessWeek, New York Times), and more and more companies are finding themselves in the hot seat.

Attorneys like Mark R. Thierman are suing companies for violating so-called wage and hour laws, claiming they've not paid overtime to workers who deserve it, the BusinessWeek story says. While exact numbers aren't available, attorneys say companies recently have altogether paid over $1 billion each year to resolve the claims:

"This is the biggest problem for companies out there in the employment area by far," says J. Nelson Thomas, a Rochester (N.Y.) attorney, who, like Thierman, switched from defense to plaintiffs' work. "I can hit a company with a hundred sexual harassment lawsuits, and it will not inflict anywhere near the damage that [a wage and hour suit] will."

But isn't overtime hard to collect if you're part of the white-collar workforce?

Defying Stereotypes

Not necessarily. BusinessWeek explains:

About 115 million employees—86% of the workforce—are covered by federal overtime rules, according to the U.S. Labor Dept. The rules apply to salaried and hourly workers alike. Plenty of wage and hour lawsuits are filed on behalf of the traditional working class, be they truckers, construction laborers, poultry processors, or restaurant workers. But no one has been more successful than Thierman in collecting overtime for employees who are far from the factory floor or fast-food kitchen. His biggest settlements over the last two years have been on behalf of stockbrokers, many of whom earn well into the six figures. Thierman has teamed up with other lawyers to extract settlements totaling about a half-billion dollars from brokerage firms, including $98 million from Citigroup's Smith Barney and $87 million from UBS Financial Services Inc. 

Thierman and others are quashing the stereotype that white-collar jobs and overtime don't mix.

So deeply rooted are archaic workplace stereotypes that many college-educated, white-collar workers are resistant to the idea that they are entitled to overtime. They associate it with a labor pool that is valued for brawn rather than brains. The notion of keeping track of their hours so they can get paid for long weeks strikes them as déclassé.

Scores of plaintiffs' firms are now aggressively pursuing overtime cases, but it is Thierman whom defense lawyers consistently cite as the most successful and innovative in the business. "He seeds the clouds," and others collect the rain, says defense attorney [Kirby C.] Wilcox. Thierman has particularly made his mark in pursuit of claims on behalf of relatively well-paid workers.

While Thierman and his colleagues are raking in a windfall from the lawsuits, they're also doing the workforce a favor--by dismantling a stereotype and bringing workplaces into the modern age.

As the BusinessWeek story indicates, the white- and blue-collar divide isn't as clearly defined as it once was. It's unfair to assume all educated, corporate employees are doing managerial-level work that disqualifies them from overtime. You can have multiple degrees, a fancy title and a salary at a big corporation where you work well beyond 40 hours a week--but the work can be as rote as a factory job. Companies need to acknowledge the substance of each employee's job instead of focusing on titles and degrees.

Technology's Double-Edged Sword

The New York Times raises another important issue: technology has turned our workforce into an always-on-call operation.

It used to be, for instance, that to do personal errands (go to the bank, shop, pick up groceries), you had to leave the office at lunch. Now you can do all that while sitting at your desk. So if you are spooning your yogurt and ordering from Amazon, you are on your lunch break, right? But what if you get an I.M. from the boss? Or an e-mail message from a client? And you respond? Are you working again?

Thierman says it counts as work time, and I agree. Technology is a boon for workers and employers. But it also can be a bane, with employees responding to work e-mails in the wee hours of the night, during holidays, lunch hours and weekends. I'm all for working hard and putting in more than what's expected--in fact, I've been the worker Blackberrying on weekends and late at night. But getting paid for hard work is the other indispensable part of the equation.

• Wage Wars (BusinessWeek)
• Labor Law Time Warp (BusinessWeek)
• O.T. Isn’t as Simple as Telling Time (The New York Times)
• Handy Reference Guide to the Fair Labor Standards Act (U.S. Department of Labor)
• Workers sue to collect pay for extra hours (The Virginian-Pilot)

Comments

[Windsor L.]

This is quite an interesting article. Anecdotally I've heard that companies have a hard time properly classifying their workforces. It seems that the bulk of this stems from ignorance on the part of (line) management and the human resources group. A good resource for learning more about FLSA is to visit the Department of Labor website at: http://www.dol.gov/esa/whd/flsa/ .

Since the stakes are quite high for not properly complying with FLSA regulations it’s absolutely vital that those in a position to make classification decisions not only know as much as possible about FLSA, but are also able to explain and defend it to management.

[Anna J]

Hi Kristina, thanks for your post. The topic seems to be hot indeed -- e.g. just yesterday I've listened with great interest to BusinessWeek's podcast featuring that Wage Wars cover story.

My take is that it's not only due to attorneys who's discovered new opportunities with overtime lawsuits. I think it's also induced by the ongoing changes in the workforce -- when professionals of both younger and older generations start rethinking their work-life balance and career goals.

And I agree that along with the tradition of hardworking we also have a tradition of being paid. Putting in additional hours of good productive work an employee should be eligible for adequate compensation. If that are just longer hours with low outcome/productivity -- that's a different problem. But efforts adding value should be compensated.

[karen]

interesting,

I called the federal government BL etc, in Feb 07, because the job i had wanted me to travel NY office to Boston client on my own time, and work a 50-60+ hour week when there. The Federal representative told me the Co. could demand that I do anything and work whatever hours they wished, that I could not refuse and I could not get paid straight time for the extra hours let alone overtime. my job was as an analyst, not a manager.