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USA Today/ ­- News, Seg, 16 de Abril de 2012
CLIPPING INTERNACIONAL (Supreme Court)
More American workers sue employers
for overtime pay
Americans were pushed to their limit in the recession
and its aftermath as they worked longer hours, often
for the same or less pay, after businesses laid off
almost 9 million employees. Now, many are striking
back in court. Since the height of the recession in
2008, more workers across the nation have been suing
employers under federal and state wage­-and­-hour
laws. The number of lawsuits filed last year was up
32% vs. 2008, an increase that some experts partly
attribute to a post­-downturn austerity that pervaded the
American workplace and artificially inflated
productivity. Workers' main grievance is that they had
to put in more than 40 hours a week without overtime
pay through various practices: ???T
hey were forced to work off the clock. ???Their jobs
were misclassified as exempt from overtime
requirements. ???Because of smartphones and other
technology, work bled into their personal time. "The
recession (put) more pressure on businesses to
squeeze workers and cut costs," says Catherine
Ruckelshaus, legal co­-director of the National
Employment Law Project. If employers had to bear the
actual expense of overtime, she says, they likely would
have hired more workers in the economic recovery. In
response, employers are playing defense.
They're drawing clearer lines between workers and
managers, and in many cases, reining in modern office
privileges, such as company­-issued smartphones and
telecommuting. The upshot, in many instances, could
be a very different American workplace. Courts,
meanwhile, must reconcile decades­-old labor laws with
ever­-evolving technology.
The spread of BlackBerrys and iPhones has many
workers tethered to employers, for better or worse,
even during off hours and vacations. The controversy
has reached the Supreme Court, but in a case
involving an age­-old profession: sales. Monday, the
justices will hear oral arguments in a class­-action
lawsuit against drugmaker GlaxoSmithKline.
Pharmaceutical sales representatives ??" traditionally
classified as exempt from overtime pay ??" say they've
been misclassified, a stance backed by the Labor
Department in another case. Glaxo says the sales
force clearly is exempt under current law. Legacy of
another time Employers say the explosion of lawsuits
shows how the 1938 Fair Labor Standards Act (FLSA)
??" at the center of the Glaxo case ??" has become
outmoded in an age when most employees want the
flexibility to work at home or answer office e­-mail while
running about on their free time.
"The law has not kept pace with the contemporary
workplace," says Randy MacDonald, IBM's head of
human resources. Many companies have reclassified
salaried executives as hourly employees ??" often to
the consternation of the workers themselves, says Dan
Yager, general counsel of the HR Policy Association,
which represents human resource professionals. Such
a strategy lets employers head off lawsuits by paying a
lower basic wage that accounts for expected overtime.
Under the FLSA, employees are entitled to overtime
unless they're executives who manage and hire and
fire employees; administrators who make key
decisions; or professionals ??" such as lawyers and
engineers ??" with advanced degrees, among other
criteria. Also exempt are certain information
technology workers and sales representatives whose
hours can't easily be tracked. Employees must earn at
least $455 a week to be exempt.
While all hourly employees are entitled to overtime,
salaried workers may also qualify if they don't fall
under any of the exemptions. Last year, 7,006
wage­-and­-hour suits, many of them class actions, were
filed in federal court, nearly quadruple the 2000 total,
according to defense law firm Seyfarth Shaw.
Meanwhile, in fiscal 2011, the Labor Department
recovered $225 million in back wages for employees,
up 28% from fiscal 2010. Labor has added 300
wage­-and­-hour investigators the past two years,
increasing its staff by 40% to 1,050.
The department "has stepped up its efforts to protect
workers," particularly "in high­-risk industries that
employ low­-wage and vulnerable workers," such as
hotels and restaurants, says Nancy Leppink, deputy
administrator of the wage­-and­-hour division. Several
attorneys for plaintiff workers say employers wrung
more output from fewer employees during recoveries
following the 2001 and 2007­-09 recessions. Both
upturns initially yielded sluggish job growth.
"A lot of companies make a business decision to say,
'We can cut corners on this, and we won't get sued,' "
says plaintiffs' attorney David Schlesinger of Nichols
Kaster in Minneapolis. productivity, or output per labor
hour, rose 2.3% in 2009 and 4% in 2010 ??" a period
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