Wage and Hour Division (WHD)
U.S. Department of Labor
MENTOR, Ohio -- The U.S. Department of Labor has filed a complaint in federal District Court seeking back wages and liquidated damages for 15 workers of Nightingale Home Support & Care Inc. The lawsuit, which resulted from an investigation conducted by the department’s Wage and Hour Division, alleged violations of the Fair Labor Standards Act’s minimum wage, overtime, and record-keeping provisions by the Mentor-based company, which also misclassified some workers as independent contractors instead of employees.
“It is unacceptable for any employer not to pay workers their rightfully earned wages or to classify workers as independent contractors to circumvent wage laws,” said George Victory, the Wage and Hour district director in Columbus. “This investigation, and this litigation, demonstrate the department’s commitment to seeing that vulnerable and historically low-wage workers are compensated in accordance with the law.”
The suit names Stella Nsong, the owner of Nightingale Home Support & Care, and the corporation itself. Nsong operates the home health care company as well as S Generation Center, an adult day care; Nsong Management, which operates John Henry Salon; and Home Health Care Supply Outlet, which sells home health care equipment. The investigation found violations at all divisions of the company.
The suit alleges that Nsong misclassified current and former employees as independent contractors and willfully failed to pay them for all hours worked. Interns were paid a flat salary, which resulted in them earning less than minimum wage for all hours worked per week. Two employees were also paid on a commission-only basis, which resulted in them not earning minimum wage.
Additional minimum wage violations were found when the employer failed to provide final paychecks on regularly scheduled pay days and failed to make good on paychecks returned for insufficient funds. Nightingale Home Support & Care also required employees to pay the fees for background checks, drug screenings and physicals as part of the employment process.
Overtime violations resulted from not including time employees spent traveling between job sites as work time, and failing to combine hours worked in different divisions of the company in the same workweek to determine if overtime was due. The employer also paid some nonexempt employees flat salaries, without regard to the number of hours they had worked. Some employees were misclassified by the firm as independent contractors, and were not paid an overtime premium for hours worked beyond 40 in a workweek. Finally, the defendant failed to keep proper records of all hours worked.
The misclassification of employees as independent contractors is an alarming trend, particularly in industries that often employ low-wage, vulnerable workers and in which the Wage and Hour Division historically has found significant wage violations. The practice is a serious threat both to employees entitled to good and safe jobs, as well as to employers that obey the law. Too often employees are deprived of overtime and minimum wages, and forced to pay taxes that their employers are legally obligated to pay. Honest employers have a difficult time competing against scofflaws.
The department is committed to ensuring that employees receive the pay and benefits to which they are legally entitled, and to level the playing field for employers that play by the rules.
The FLSA requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 per hour for all hours worked, plus time and one-half their regular hourly rates for hours worked beyond 40 per week. The FLSA provides that employers who violate the law are, as a general rule, liable to employees for their back wages and an equal amount in liquidated damages. Liquidated damages are paid directly to the affected employees. Additionally, the law requires employers to maintain accurate time and payroll records, and prohibits retaliation against employees who exercise their rights under the law.
For more information about the FLSA and other federal wage laws, call the Wage and Hour Division’s toll-free helpline at 866-4US-WAGE (487-9243). Information also is available at http://www.dol.gov/whd.
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