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Misclassifying employees as exempt and not accounting for overtime are two of the most prevalent claims in wage-and-hour litigation, legal observers say.
An issue related to misclassification is the “substantial number of cases” in which the employer is accused of classifying employees as independent contractors, said Paul J. Siegel, a partner with Jackson Lewis L.L.P. in Melville, N.Y.
In addition, “There are a growing number of off-the-clock work cases” in which employees worked hours not reflected on their time sheet, he said.
Such cases can include employees using a BlackBerry or computer at home, or coming in early or staying late without being on the clock, Mr. Siegel said.
Another area of dispute is where a time clock rounds off a worker's start time, such as rounding off a 7:55 a.m. start to 8 a.m., said Marlene S. Muraco, a shareholder with Littler Mendelson P.C. in San Jose, Calif.
A common charge of this type is a “donning and doffing” complaint, the time workers take to put on and remove specialized clothing and equipment.
This issue also can arise when workers need significant time to get to their work station, such as taking a shuttle from a parking lot or walking several minutes to reach the time clock, said Enzo Der Boghossian, a partner with Proskauer Rose L.L.P. in Los Angeles. Another issue is when an on-call employee actually starts work, he said.
Unless there are special circumstances, “the employer can't deduct travel time that is not commuting time and occurs during an employee's regular work hours,” such as travel between company headquarters and a worksite, said Daniel L. Kuperstein, an associate with Fox Rothschild L.L.P. in Roseland, N.J.
Wage-and-hour complaints can include missed meals. In California for instance, workers are required to have a 30-minute meal period that generally must be taken before the fifth hour of work, said Brian T. McMillan, a shareholder with Littler Mendelson in San Jose, Calif.
Another area is equipment for those who work outside traditional office settings, said Mr. Der Boghossian. If a laptop, cell phone or other electronic device is essential to the worker's job “and if the employer fails to provide the equipment and/or to pay for the services, it's possible the employee could claim (the employer was) required to shoulder the business expense,” he said.
“Commissions tend to be a source of trouble” as well, said Mr. Der Boghossian. “Employers sometimes fail to calculate the commission earnings or take the commission earnings into account when calculating overtime wages,” he said.