Recent trends in overtime litigation

The housing industry is upside down. There have been so many homes built by the builders that it has resulted in real estate values tumbling. This has resulted in the mortgage companies losing a lot of business as well. Look at the Countrywide debacle. Countrywide was recently purchased (bailed out) by Bank of America. Countrywide and many other mortgage companies sold a lot of sub prime mortgages with adjustable rates and 3 or 5 year balloon payments. We are now seeing the effect of this with the foreclosure industry booming.

What does all of this have to do with overtime?

Well, the builders were working overtime to build the houses fast enough for the mortgage companies to fund these sub prime loans. And the mortgage companies were working their closers, processors, loan specialists, title reviewers, underwriters, loan officers, and other employees almost around the clock to shoulder the massive workload at the height of the real estate boom. Many of the mortgage companies’ employees were paid a salary and no overtime.

It is important to understand that the biggest misconception among employers and employees alike is that being paid a salary means that you are not entitled to overtime. THAT IS NOT TRUE!!! Many employers will tell their employees, “your salaried…you don’t get overtime.”

Employees who are worked like dogs get tired of ”No Overtime” polices fast. Mortgage companies recognized this and would pay SPIFS or some other type of bonus or commission in lieu of overtime. Another thing that we see is that an employer will sometimes entice its employees to work through their lunch by providing a “FREE” lunch and “expecting” you to eat at your desk while you continue to answer the phone (with food particles spewing from your mouth), review documents, review and reply to e-mails, etc…. If you eat a “FREE” lunch and you give your employer an extra 1/2 hour or hour of work, then your lunch is really not free, is it?. Many employers will tell you to clock out for lunch or “show” a lunch on your timecard…and then at the same time you are expected to complete a heavy work load. Employers are not allowed to sit back and reap the benefit of this unpaid work. This is illegal.

If an employee works more than 40 hours in any 7-day workweek, without receiving overtime at a rate of 1 and 1/2 times their regular rate of pay, then there is a violation of the FLSA (Fair Labor Standards Act). Back to the bonuses and commissions. Receiving a bonus or commission is great, but it is hardly ever added into your pay when computing overtime compensation (assuming you are one of the lucky ones and you actually get paid some overtime). The FLSA requires that all performance based bonuses and commissions are added into your regular pay…therefore your overtime rate is naturally higher. Employers fail to do this very often. If this happened to you, then you have a claim for unpaid wages, or unpaid overtime premiums.

Also, regarding the housing industry, there are a lot of “superintendents” who were paid nicely ($50k to over $100k plus bonuses) but who also worked ungodly hours. Believe it or not, some superintendents or project managers may be entitled to overtime, even though they received a high salary. Really, one of the only exemptions that could apply is the Executive Exemption (commonly referred to as the manager or supervisor exemption). In order to fit within the exemption (and thus NOT be entitled to overtime) you must supervise at least 2 full time employees (or the equivalent (1 full time and 2 part-time for example)). If you manage projects or sub-contractors, you probably don’t qualify for this exemption to overtime, especially if your primary duty involved manual labor (like BUILDING the homes).

The bottom line is that both the housing and mortgage industries profited tremendously over the past several years. This profit was not always passed down to company employees. In fact, many employees are exploited and treated unfairly, despite “working their tails off.” If you ever worked overtime in any type of job, you should consult with a wage and hour attorney and have your particular situation evaluated. Some of my largest cases have come from clients who really had no idea of their right to overtime under the law….even if they are paid a nice salary. There are strict requirements regarding one’s salary (generally, you cannot be docked) and one’s primary job duties in order for an exemption to apply to your situation. Take the time to talk to an overtime attorney and see if you may have been exploited by your past or present employer. There are many ongoing class action overtime lawsuits that have been filed in these industries. Class action unpaid wage cases are a very hot topic, especially given the state of the economy. Do your research and see if you may be entitled to overtime….you owe it to yourself.