Florida Attorney-Danialle Riggins,Esq.

Most attorneys have some form of becoming aware of changes in the areas of law that they practice.  Some attorneys use alerts through case law providers, other may periodically read opinions released by the courts, and for some the source could be simply another attorney. There are various ways of keeping up with minor and especially major changes in the law.

However, except for Employment Law attorneys, most attorneys are not keeping up with the ever-so changing rules and laws that affect managing a law firm.  This is especially true for the practice of law in a small firm.

According to numerous sources, claims and lawsuits filed on behalf of groups of employees under the Fair Labor Standards Act of 1938, as amended are now more common than race and sex class actions.  A heavy concentration of these cases have generated in Florida. The rules governing who is eligible for overtime compensation have changed.  Therefore, solo and small law firms need to be on the look out for potential violations. 

Here are some common errors found in law firms.

1.                   Exempt from Overtime-- Employees whose jobs are governed by the Fair Labor Standard Act (FLSA) are either "exempt" or "nonexempt." Nonexempt employees are entitled to overtime pay. Exempt employees are not. Most employees covered by the FLSA are nonexempt. For most employees, however, whether they are exempt or nonexempt depends on (a) how much they are paid, (b) how they are paid, and (c) what kind of work they do. Typically paralegals are non-exempt employees. If an employee meets the elements for exemption in the Salary and Salary Basis Tests, the employee must meet all of the duty elements of either the executive, administrative or professional exemptions to be designated exempt.

2.                   FMLA leave mistakes--Mistakenly notifying an employee that he or she is entitled to Family Medical Leave Act (FMLA) leave could lead to a lawsuit even though the leave time is unpaid.  FMLA allows employees to take up to 12 weeks of guaranteed unpaid leave a year for a variety of circumstances, including an employee's own health condition that is serious to the extent that the employee is unable to work as a result of the condition. In other words, the FMLA provides a guaranteed leave period of up to 12 weeks to eligible employees.  One of the criteria for FMLA is that the worksite where the employee works has more than 50 employees within a 75 mile radius. If an employer wants to provide benefits similar to the FMLA to non-eligible employees, the firm should do so making it clear that such leave is not covered by the FMLA.  The leave should be an employee benefit similar to other forms of employer-provided leave.

3.         Not capturing pre-shift and post-shift work—Some law firm employees due to the high volume of tasks and/or the pressure of deadlines work before their shift begins or attend a pre-shift meeting.  Employers regularly fail to consider this additional time worked by their employees as “hours worked.”  This practice results in employees receiving less overtime pay then they otherwise are entitled to receive. The risks of violating this provision are especially great as lawyers use staff during trials.

4.         Required authorization of overtime—The firm cannot refuse to pay overtime simply because it was not pre-approved.  If the office manager, partner, attorney, or supervisor knows or has reason to know that an employee is working overtime, the overtime must be paid.  The firm is not allowed to get the benefits of the employee’s work without paying for it.

5.         Keep accurate time records— Maintain required records for all staff, including the name of the employee, home address, date of birth, time of day the work week begins and ends and, importantly, the precise time an employee began and quit working. The record should also clearly spell out the hourly rate that an employee receives, including overtime hours worked. Any deductions from wages should be shown. For hourly employees, keep accurate time records of all “hours worked.” Remember, it’s the employer’s burden to see that accurate records of hours worked are maintained. You cannot transfer this burden to the employee; however, you can ask him to manually record his or her hours. Exempt employees may keep time records for purposes of meeting requirements for allocating salaries and still not conflict with FLSA requirements, as long as these time records are not used as the basis for pay. Our firm suggests you have your employees sign all time sheets attesting to its accuracy.

6.         Liability insurance coverage-- Claims involving employment issues comprise a significant amount of today’s civil litigations.  No employer is immune from employment practice liability litigation, especially not law firms.  Most malpractice liability insurance policies do not include liability from wage and hour, harassment, and discrimination claims from employees.  For example, if an employee is successful in an “overtime wages” claim against your firm, the employee is entitled to the overtime wages, interest, and attorney’s fees.  The court may award the employee an additional amount of liquidated damages equal to the amount of overtime that should have been received.  Imagine that the overtime amount owed $900, the employee’s attorney’s fees could be at least $20,000 depending on the length of the litigation. The $20,000 does not include the firm’s attorney’s fees. There are some forms of insurance that are specifically for employment practice liability protection for law firms. Contact info - Chubb Group- http://www.chubb.com/contactus/writeus.html

7.         Interrupted unpaid meal breaks -- Don’t let employees eat lunch in work areas. Interruptions of unpaid meal breaks are problems arise when law firms fail to recognize and count certain hours worked as compensable hours.  For example, an employee who remains at his/her desk while eating lunch and regularly answers the telephone and refers callers is working.  This time must be counted and paid as compensable hours worked because the employee has not been completely relieved from duty. Any interruption of the lunch break, even one phone call, could make the entire lunch break “hours worked” and must be paid.

8.         Possible FLSA violations for unpaid legal externships-- Recently the Department of Labor promulgated the following list of factors to determine whether unpaid externships comply with the Fair Labor Standards Act:  a)The training is similar to what would be given in a vocational school or academic educational instruction;  b)The training is for the benefit of the trainees or students; c)The trainees or students do not displace regular employees, but work under their close observation; d)The employer that provides the training derives no immediate advantage from the activities of the trainees or students, and on occasion the employer’s operations may actually be impeded; e) The trainees or students are not necessarily entitled to a job at the conclusion of the training period; and f)The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training.

9.         Giving Comp time in a different work week in lieu of overtime- Compensatory time is not generally allowed in the private sector.  Law firms, like other employers, tell employees that they can get compensatory time off (“Comp Time’) at some later point if they work more than the forty (40) hours in a workweek.    Employees who are subjected to the “comp time” offer typically have a claim for unpaid overtime.  This is because employees are supposed to be paid overtime for any hours worker over forty(40) in each workweek.  Employees asked to practice the “banking” hours typically lose thousands of dollars per year.

10.                         Time span to retain records from former employees- The retention period for various employee records   varies based on the various employment laws you are subject to. Here are some guidelines:

 By: Danialle Riggins- Sims, Amat Stakenborg & Henry PA ~ Ocala, FL - Revised 2007