BUCKHANNON, W.Va. – The U.S. Department of Labor’s Wage and Hour Division has revoked a West Virginia nonprofit’s ability to pay less than the current federal minimum wage to workers with disabilities after federal investigations found the organization violated provisions of the Fair Labor Standards Act and McNamara-O’Hara Service Contract Act.

The division found that Buckhannon-Upshur Work Adjustment Center – a non-profit community rehabilitation program – violated the FLSA’s section 14(c) when it failed to pay a valid subminimum wage to 12 workers with disabilities employed to do light assembly production.

The company paid 12 workers $43,370 in back wages for this violation. Additional FLSA section 14(c) violations included failure to perform annual prevailing wage surveys, and failure to conduct required time studies. Buckhannon-Upshur Work Adjustment Center also paid a civil money penalty for willfully violating the FLSA.

The investigation also revealed that the employer submitted falsified and/or inaccurate time studies and prevailing wage surveys to obtain 14(c) certification from the division. This certification allows the employer to pay wages less than the federal minimum wage to workers with disabilities when their disabilities impair their productive capacities for the work they perform. This action, in conjunction with the company’s history of violations, led the division to revoke the employer’s current and previous section 14(c) certificates for the period of Sept. 1, 2012, through Aug. 31, 2016. 

The division also found the center owed five workers an additional $4,795.84 due to SCA violations. The employer failed to adjust the prevailing wage and health and welfare benefit rates on the contract renewal date, as required, and illegally paid a subminimum wage to a worker with a disability.

“This investigation is part of an ongoing strategic enforcement initiative designed to protect workers with disabilities from exploitation. The back wages received by these workers, and the money they will earn by being paid legally, will have a significant positive impact on their lives,” said John DuMont, director of the Wage and Hour Division’s Pittsburgh District Office. “The resolution of this case should send a strong message – we take our mission very seriously, and will not hesitate to use every enforcement tool available, including revocation of certificates, to ensure that employers do not exploit our most vulnerable workers. Failing to comply with the law is not acceptable.”

Buckhannon-Upshur agreed to the following:

• Comply with all applicable provisions of the FLSA in the future.
• Not to contest the revocation of the current or prior subminimum wage certificates.
• Pay all back wages due.
• Require staff to attend 14(c) training within the next year.
• Use the division’s online section 14(c) calculators for their next two full certificate applications, which will be required prior to any future certifications being granted. 
• Educate their organization through use of the department’s online presentations.
• Take actions needed to protect employees’ eligibility for public benefits, including providing employees with benefits planning information and counseling.

The division’s Pittsburgh District Office conducted the investigation.

In general, the FLSA requires that covered, non-exempt employees be paid at least the federal minimum wage of $7.25 for all hours worked, plus time and one-half their regular rate of pay, including commissions, bonuses and incentive pay, for hours worked beyond 40 per workweek. Section 14(c) of the act allows employers, after receiving a certificate of authorization from the division, to pay wages less than the federal minimum wage to workers with disabilities when their disabilities impair their productive capacities for the work being performed.

The division has been pursuing strategies to strengthen compliance with section 14(c) and maximize the impact of its benefits for workers with disabilities, their employers, families and communities. These strategies include using all available enforcement tools to remedy and deter future violations; providing new compliance assistance materials and tools; and hosting compliance conferences for employers, community rehabilitation programs, advocates, workers and other interested parties.

Information about subminimum wages paid to workers with disabilities can be found at http://www.dol.gov/whd/regs/compliance/whdfs39.pdf.

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 is also available at http://www.dol.gov/whd/.

Type of Action: Fair Labor Standards Act lawsuit filing

Name of Defendants: West Coast Drywall & Company Inc.
Mark D. Herbert
Santos Garcia

Complaint: The U.S. Department of Labor has filed a lawsuit against West Coast Drywall & Company, its chief executive officer and owner Mark D. Herbert, and the company’s chief operating officer Santos Garcia, after an investigation by the Wage and Hour Division uncovered that the employer violated, and continues to violate, overtime and recordkeeping provisions of the Fair Labor Standards Act.

The division already investigated West Coast Drywall & Company in 2012. That investigation determined that the employer failed to pay overtime to drywall employees and painters, resulting in $9,115 in back wages due to 101 employees. The employer agreed to make all necessary changes to comply with the FLSA.

The latest investigation revealed that the Riverside-based drywall installation and painting employer again failed to pay workers time and one-half their regular hourly rates for all the hours they worked beyond 40 in a workweek, which they did routinely. Supervisors regularly told employees to falsify timecards to reflect no more than 40 hours when, in fact, they worked more than 40 hours in a workweek. In addition, investigators found the company asked some workers to sign untrue statements – once the investigation was underway – claiming their employer always paid properly for overtime.

Resolution: The department seeks a judgment ordering the employer to pay the overtime back wages due and an additional, equal amount of damages to the workers. The complaint also asks the court to enjoin the company and its officers from violating the FLSA in the future.  

Quote: “Unfortunately, West Coast Drywall chose to ignore our guidance after our investigation in 2012,” said Gayane Aleksanian, assistant district director of the Wage and Hour Division in West Covina. “The company left us no choice but to take legal action to make sure that their workers receive their hard-earned wages. We’re sending a clear message that compliance is not optional, and that the division will use every enforcement tool we have to protect not only workers, but other employers who play by the rules.”

Background: West Coast Drywall & Company provides services to a number of builders, including Lennar Homes, Shea Homes, KB Homes, Standard Pacific and HR Horton.

Information: The department filed the complaint in the U.S. District Court for the Central District of California on July 18. The department’s regional Office of the Solicitor in Los Angeles is litigating the case.

The FLSA requires that covered, non-exempt 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 rates, including commissions, bonuses and incentive pay for hours worked beyond 40 per week. Employers also must maintain accurate time and payroll records, and are prohibited from retaliating against workers who exercise their rights under the law.

For more information about federal wage laws administered by the Wage and Hour Division, or to file a complaint, call the agency’s toll-free helpline at 866-4US-WAGE (487-9243). All services are free and confidential. Information also is available at http://www.dol.gov/whd/.

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OVERLAND PARK, Kan. – An Overland Park flooring company that misclassified installers as independent contractors will pay 22 workers a total of $159,144 – representing $79,572 in back wages plus an equal amount in liquidated damages – after a U.S. Department of Labor Wage and Hour Division investigation.

The division found Uni Floor Inc. violated overtime and recordkeeping requirements of the Fair Labor Standards Act when it failed to pay installers overtime after treating them as independent contractors instead of employees. 

The investigation determined the flooring installers met the definition of employees, triggering overtime protections under the FLSA. The company violated the FLSA’s recordkeeping requirements when it failed to maintain time records for these employees. In this case, Uni Floor provided the equipment used by the workers, controlled their day-to-day schedules and paid them flat salaries. The employer also bid for all work and supervised job sites daily. 

“Far too often, employers misclassify workers as independent contractors when the law defines them as employees. In this case, Uni Floor denied workers overtime for hours worked over 40 per week and access to employee benefits, unemployment insurance and the payment of federal and state taxes on the worker’s behalf,” said Brad Bobowski, acting district director for the Wage and Hour Division in Kansas City. “We are committed to rooting out misclassification and, as this case shows, will take enforcement actions needed to achieve that goal.”

A misclassified employee – with independent contractor or other non-employee status – loses minimum wage, overtime, workers compensation, unemployment insurance and other workplace protections. Employers often misclassify workers to reduce labor costs and avoid employment taxes. By not complying with the law, these employers have an unfair advantage over competitors who pay fair wages, taxes due, and ensure wage and other protections for their employees. These illegal practices lower standards for all workers, especially in highly competitive markets and industries where employers try to reduce overhead, often at the expense of their workers.

The division has aggressively expanded its efforts to combat employee misclassification in sectors where workers are especially vulnerable and violations are rampant. To assist in combating the problem, the department has entered into agreements with more than 30 states to share information and to coordinate enforcement efforts. The department also engages in a robust education and outreach, and works with employers and other stakeholders to change behavior at the industry level. 

For more information about the FLSA, visit https://www.dol.gov/whd or call the division’s toll-free helpline at 866-4US-WAGE (487-9243).

Employer:  Bosco’s Inc.

Sites: 2301 Spenard Road, Anchorage, Alaska
800 E. Dimond Blvd., Suite #162, Anchorage, Alaska

Investigation findings: Investigators from the U.S. Department of Labor’s Wage and Hour Division found Bosco’s violated the child labor and overtime provisions of the Fair Labor Standards Act. Specifically, the retailer violated child labor law by requiring a 15-year-old worker to load an industrial-grade trash compactor, prohibited by law for workers under 18 years old, as a regular part of his duties. The division also cited the company for employing two 15-year-olds outside of allowable time standards for children under 16 years of age. These employees worked longer than three hours on a school day and later than 7 p.m. during the school year, both of which the FLSA prohibits. Investigators also found overtime and recordkeeping violations under the FLSA.

Resolution: Company owner John Weddleton agreed to pay $4,650 in civil penalties for violating the child labor standards. He also paid $126 to two workers in lost overtime wages, and committed to training all employees on child labor laws and hazardous occupations. He will also provide managers and supervisors training on federal recordkeeping, minimum wage and overtime regulations, and has agreed to include the department’s website in the Bosco employee handbook to give staff consistent access to all regulatory guidance.

Quote: “We are committed to helping young workers find positive, appropriate and safe employment experiences,” said Jeanette Aranda, director of the Wage and Hour Division in Seattle. “The Wage and Hour Division remains committed to vigorous enforcement of child labor standards, and will continue to use every enforcement tool available to do so. The training this employer has agreed to provide in the future will help all Bosco employees be better protected from a needless injury or tragedy.”

Information: Bosco’s Inc. is a group of retail stores in Alaska specializing in comics, cards, games and the pop culture collectibles. For more information about federal wage laws administered by the Wage and Hour Division, call the agency’s toll-free helpline at 866-4US-WAGE (487-9243). Information also is available at http://www.dol.gov/whd. 

Participants: U.S. Department of Labor’s Wage and Hour Division
Pennsylvania Department of Labor & Industry

Partnership description: The U.S. Department of Labor’s Wage and Hour Division and the Pennsylvania Department of Labor & Industry signed a three-year Memorandum of Understanding intended to protect employees’ rights by preventing their misclassification as independent contractors or other non-employee statuses. The two agencies will provide clear, accurate and easy-to-access outreach to employers, employees and other stakeholders; share resources; and enhance enforcement by conducting coordinated investigations and sharing information consistent with applicable law.

Background: The division is working with the U.S. Internal Revenue Service and 31 other U.S. states to combat employee misclassification and to ensure that workers get the wages, benefits and protections to which they are entitled. Labeling employees as something they are not – such as independent contractors – can deny them basic rights such as minimum wage, overtime and other benefits. Misclassification also improperly lowers tax revenues to federal and state governments, as create losses for state unemployment insurance and workers’ compensation funds.

More information on misclassification and the effort are available at http://www.dol.gov/misclassification/.

Quotes: “The Wage and Hour Division continues to attack this problem head on through a combination of a robust education and outreach, and nationwide, data-driven strategic enforcement across industries. Our goal is always to strive toward workplaces with decreased misclassification, increased compliance, and more workers receiving a fair day’s pay for a fair day’s work.”

Dr. David Weil, U.S. Department of Labor Wage and Hour Division Administrator

“When we share common interests and goals, increased collaboration and communication means we secure a better a work environment for all Pennsylvania workers and employers. By educating employees and employers about compliance to all labor laws we enforce, we are helping everyone receive the benefits they deserve.”

Kathy Manderino, Pennsylvania Department of Labor & Industry Secretary

TAMPA, Fla. – A federal investigation into pay practices at a technology subsidiary of global banking giant Citigroup revealed the Florida company denied hundreds of employees’ overtime compensation and did not maintain time records, both violations of the Fair Labor Standards Act.

After a U.S. Department of Labor Wage and Hour Division investigation of Citigroup Technology Inc. in Tampa, the employer has paid 882 employees a total of $1,870,009 in back wages and a civil penalty of $97,680 for repeat violations. The division’s investigation focused on CTI’s Anti-Money Laundering Division and its practice of classifying analysts improperly as administratively exempt from the FLSA’s overtime requirement. By misapplying an exemption to these workers, CTI denied them overtime compensation when they worked more than 40 hours in a work week. The employer also failed to maintain required time records for these employees, as required by law.

“Employers must understand that simply paying an employee a salary does not necessarily mean the employee is not eligible for overtime,” said Wage and Hour Division Administrator Dr. David Weil. “The back wages and penalties paid in this case should cause other employers to take note, and to examine their pay practices. The Wage and Hour division will continue its vigorous enforcement of the law, including the overtime regulations, to ensure that workers take home every penny they have rightfully earned.”

CTI has paid the back wages, will comply with the FLSA going forward, and has signed an agreement with the department which requires them to review compliance for all of their remaining analyst positions and notify the Wage and Hour Division in writing if any back wages are due. The wages and penalty cover violations committed between Nov. 2, 2013 and Oct. 31, 2015.

The FLSA provides an exemption from both minimum wage and overtime pay requirements for individuals employed in bona fide executive, administrative, professional and outside sales positions, as well as certain computer employees. To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week. Job titles do not determine exempt status. For an exemption to apply, an employee’s specific job duties and salary must meet all the requirements of the department’s regulations. On May 18, 2016 the department announced a Final Rule updating these requirements. The effective date of the final rule is Dec. 1, 2016.

CTI’s parent company is Citigroup, a leading global bank with approximately 200 million customer accounts and business in more than 160 countries and jurisdictions.

For more information about federal wage laws administered by the Wage and Hour Division, call the agency’s toll-free helpline at 866-4US-WAGE (487-9243). Information also is available at http://www.dol.gov/whd/. 

MORGANTOWN, W.Va. – The U.S. Department of Labor’s Wage and Hour Division will offer a comprehensive compliance seminar for employers, representatives of community rehabilitation programs, family members and guardians of workers with disabilities and other stakeholders on rules governing the payment of workers with disabilities under Section 14(c) of the Fair Labor Standards Act. 

The seminar will be held Sept. 8, 2016, in Morgantown, West Virginia, from 8:30 a.m. to 4:30 p.m. EDT at Morgantown City Hall, Council Chambers, 389 Spruce St. Registration begins at 8 a.m., EDT. The event is free and open to the public. 

“The U.S. Department of Labor is committed to ensuring that all of our stakeholders – employers, community rehabilitation programs, advocates, workers and other interested parties – fully understand the rules that apply to employing workers with disabilities at subminimum wages,” said Wage and Hour Division Hour Division Deputy Administrator Laura Fortman. “We are pleased to provide this free seminar and to offer this training. It is a key component of the department’s ongoing effort to increase awareness and enhance compliance of this program to prevent the curtailment of opportunities for employment of individuals with disabilities.”

The division enforces all requirements to protect both workers and employers, and in providing assistance to enable employers to proactively achieve compliance with Section 14(c) of the FLSA. Training will cover topics including the certification process, performing prevailing wage surveys, and conducting time studies. The department’s Section 14(c) on-line calculators that determine commensurate wage rates for employees will also be demonstrated.

Participants will learn about common compliance problems for Section 14(c) certificate holders, such as calculating commensurate wages and accurately tracking hours worked, and how to avoid them. The seminar will also address the impact of Executive Order 13658, which establishes a minimum wage for certain federal contractors, as well as the provisions of the Workforce Innovation and Opportunity Act that will directly affect an employer’s ability to pay workers a subminimum wage.

Attendance is free, but space is limited. The division asks those interested to register online in advance by visiting at http://www.dol.gov/whd/specialemployment/FreeSeminar_Section14c.htm. An email will be sent to confirm registration. Members of the public with questions about the conference should call 603-606-3118 or email Reed.Kendra@dol.gov

For more information on Section 14(c) of the FLSA and other federal wage laws administered by the Wage and Hour Division, call the department’s toll-free helpline at 866-4US-WAGE (487-9243) or visit the agency’s website at http://dol.gov/whd/.

BOSTON – A Lunenburg construction company and a Framingham company it used to avoid its legal responsibilities as an employer have been ordered to pay a total of $2,359,685 in back wages and liquidated damages to 478 employees and take other corrective actions to prevent future violations of federal labor law. Under a consent judgment they will also pay $262,900 in civil money penalties due to the willful nature of their violations.

An investigation by the department’s Wage and Hour Division found that Force Corp., AB Construction Group Inc. and employers Juliano Fernandes and Anderson Dos Santos misclassified the bulk of their employees as independent contractors to avoid paying them overtime wages and other benefits to which they were entitled under the Fair Labor Standards Act. In addition, the defendants used a combination of payroll checks and cash/check payments to pay their employees straight time when overtime pay was required, and kept inadequate and inaccurate time and payroll records.

“American workers go to their jobs each and every day and work hard to help their employers turn a profit,” said U.S. Secretary of Labor Thomas E. Perez. “To be cheated out of wages and denied other workplace protections by an employer who deliberately flouts the rules compounds the struggles too many middle class Americans already face. Workers who play by the rules deserve nothing less than to be paid what they are owed.” 

Force Corp. is a year-round construction company operating in Massachusetts, Connecticut and Maine. The division’s investigation determined that the defendants created AB Construction to provide Force Corp. with much of its labor, and that Force Corp. prepared and controlled the payroll and payment procedures for both companies.

The department has now obtained a consent judgment in the U.S. District Court for the District of Massachusetts that orders the defendants to:

• Pay a total of $2,359,685 – $1,179,842 in back wages and an equal amount in liquidated damages – to 478 employees.
• Refrain from evading their responsibilities under the FLSA by misclassifying their employees as independent contractors
• Make, keep and preserve accurate records of employees’ wages, work hours and working conditions, as required by the FLSA.
• Engage one or more qualified independent consultants to create a payroll system or systems that will ensure that the defendants’ payroll and recordkeeping practices comply with the FLSA. The consultants will also review those practices quarterly and submit reports to the division detailing any problems and corrective actions.

“The misclassification of employees as independent contractors is a serious problem that hurts workers, taxpayers, and the entire economy in multiple ways,” said Michael Felsen, the department’s New England regional solicitor.  “It robs employees of their rights to proper wages, safe workplaces, social security payments, and unemployment and workers compensation insurance. It deprives federal and state governments of needed tax revenues. And, it undercuts law-abiding employers who pay their workers legally and play by the rules.”

The $2,359,685 is the division’s largest such FLSA wage recovery in Massachusetts since 2009.

“The U.S. Department of Labor is committed to rooting out misclassification, and will take the enforcement actions necessary to achieve that goal, including injunctions to correct employers’ unlawful practices, collecting back pay and liquidated damages for the workers, and assessing serious penalties,” said Carlos Matos, the Wage and Hour Division’s district director in Boston.

The division’s Boston District Office investigated the case. The department’s Boston solicitor’s office Senior Trial Attorney Celeste Moran filed the complaint and consent judgment and order.

In recent years, the employment relationship between workers and the businesses receiving the benefit of their labor has fissured apart as companies have contracted out or otherwise engaged in efforts to shed their responsibilities as employers. The misclassification of employees as independent contractors is one example of the effects of such splintered relationships in the workplace. To assist in combating the problem, the department has entered into agreements with more than 30 states to share information and to coordinate enforcement efforts. The department also engages in a robust education and outreach, and works with employers and other stakeholders to change behavior at the industry level.

The FLSA requires that covered, nonexempt workers be paid at least the federal minimum wage of $7.25 per hour for all hours worked, plus one and one-half times their regular wages for hours worked beyond 40 per week. Employers also must maintain accurate time and payroll records.

For more information about federal wage laws administered by the Wage and Hour Division, call the agency’s toll-free helpline at 866-4US-WAGE (487-9243). Information also is available at http://www.dol.gov/whd/.

# # #

Perez v. Force Corp.; AB Construction Group Inc.; Juliano Fernandes; and Anderson Dos Santos.
Civil Action Number: 4:16-cv-40103 - TSH.

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Employers: David Hovannisian and J&V Properties Inc., two property management companies jointly doing business as JD Home Rentals

Location: 2975 E. Belmont Ave., Fresno, California

Investigation findings: An investigation by the U.S. Department of Labor’s Wage and Hour Division found that Fresno-based JD Home Rentals paid straight time for overtime hours worked, rather than paying time-and-a-half for each hour worked beyond 40 in a workweek, as required by the Fair Labor Standards Act. The home rental and management company also failed to keep accurate records of the hours worked by employees, in violation of the FLSA’s recordkeeping provisions. Most of the affected employees were maintenance workers.

Resolution: JD Home Rentals will pay $129,719 in overtime back wages and an equal, additional amount in damages, totaling $259,438 to 157 employees.

Quote: “We will not tolerate employers denying workers their hard-earned wages,” said Cesar Avila, assistant district director for the Wage and Hour Division in Sacramento. “Failure to pay workers the wages they’ve rightfully earned makes it difficult for them to care for themselves and their families. It also puts employers who play by the rules at a disadvantage. The resolution of this case should send a clear message to other employers who may be paying their employees in this manner – violating the law doesn’t pay.”

Information: For more information about federal wage laws administered by the Wage and Hour Division, call the agency’s toll-free helpline at 866-4US-WAGE (487-9243). Information also is available at http://www.dol.gov/whd/.

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WASHINGTON – Hundreds of workers who prepare and serve meals for Capitol Hill lawmakers and their staffs in the U.S. Senate cafeterias will receive more than $1 million in back wages after a U.S. Department of Labor investigation found their employers failed to pay prevailing wages required of federal contractors.

The department’s Wage and Hour Division announced today that Restaurant Associates and its subcontractor, Personnel Plus, will pay 674 workers $1,008,302 in back wages. The division found the two employers violated the McNamara-O’Hara Service Contract Act when they improperly classified workers – paying them for lower-paying jobs than they actually performed – and required employees to work prior to their scheduled starting times without compensation. Paying below the required rates also caused the companies to fail to pay the workers overtime at the proper rates.

“Employers given the opportunity to earn a profit by providing a service to the government at a cost to the tax payer have a legal obligation to follow the letter of the law, especially when it comes to paying their workers,” said the department’s Wage and Hour Division Administrator David Weil. “Workers in the restaurant industry are among the lowest-paid workers in our economy. Most struggle to afford life’s basic expenses and pay their bills; they shouldn’t have to deal with paychecks that don’t accurately reflect their hard work and the wages to which they are legally entitled.” 

The agency also determined the employers failed to pay required health and welfare benefits and violated the SCA’s recordkeeping requirements.  

Investigators found that Restaurant Associates’ failure to pay workers proper overtime and failure to maintain a record of hours employees worked prior to their scheduled shifts also violated the Fair Labor Standards Act.  

“Enforcement of the prevailing wage laws levels the playing field for all contractors and protects the wages of hard-working employees,” said Mark Watson, Regional Administrator for the Wage and Hour Division in the Northeast. “These contractors’ actions put vulnerable, low-wage workers and their families in jeopardy. The division will remain vigilant in its enforcement of these laws to protect both workers and employers.”  

The division is reviewing the findings to determine whether to seek debarment of the employers from obtaining contracts with the federal government in the future.

The SCA applies to every contract valued in excess of $2,500 entered into by the U.S. Government or the District of Columbia, the principal purpose of which is to furnish services in the U.S. using service employees. Contractors and subcontractors performing on covered service contracts must observe minimum wage and safety, health and welfare benefits and maintain certain records.

The FLSA requires that covered, nonexempt workers be paid at least the federal minimum wage of $7.25 per hour for all hours worked, plus one and one-half times their regular rates of pay for hours worked beyond 40 per week. Employers also must maintain accurate time and payroll records.

For more information about federal wage laws administered by the Wage and Hour Division, call the agency’s toll-free helpline at 866-4US-WAGE (487-9243). Information also is available at http://www.dol.gov/whd/.