MADISON WISCONSIN WAGE CLAIMS LAWYERS

  • Have you been denied overtime pay even though you worked over 40 hours in some weeks?
  • Does your Wisconsin employer assert that your job is "exempt" in order to avoid paying overtime?
  • Are you paid less than $7.25 per hour?
  • Does your employer try to classify you as an "independent contractor" and not pay you based on the hours you work?
  • Does your employer claim that time spent putting on required work equipment is not covered?
  • Does your employer deny wages for time spent traveling between work sites?
  • Does your employer claim that you are considered an "outside sales" rep, even though you do the vast majority of your work at the employer's location?
  • Are you owed wages because your employer claims you are a "professional" or "administrative"?

Typically, if you are a non-exempt employee you must be paid one and a half times your normal hourly rate for any hours worked in excess of 40 during your work week. Whether you are "exempt" depends on the specific facts of your case and on the work you actually perform, not just your job title. If you are not paid overtime, and you are a non-exempt employee, you may have a claim against your employer. Just because you are paid a salary or receive a commission, that does not mean that you are necessarily an exempt employee.

Even employees who are paid a salary, a piece rate, or on a commission basis are entitled to overtime and minimum wage pay unless their job duties meet certain specific requirements.

If your employer did not pay you overtime wages or the minimum wage, or if you want to confirm that you are being paid properly, Ehlke, Bero-Lehmann & Lounsbury, S.C. will provide you with a free consultation to evaluate your claim.

Generally, we are able to represent workers seeking unpaid overtime and minimum wages on a contingent fee basis, which means your attorney is only paid through your recovery. This also means that your attorney does not receive any fee unless you wages are recovered.

Please contact us if you would like to discuss your rights. In Madison, Dane County, or anywhere in Wisconsin, call 608-827-9750. In Monroe or Green County, call 608-328-4300.


WISCONSIN WAGE LAW INFORMATION

Protecting Your Rights Under Wisconsin's Wage Claim Law

It is important to remember that:

  • Employees may recover up to double their unpaid wages under Wisconsin's wage claim law. This is called "double damages."
  • Employees may recover expenses and attorneys' fees incurred in collecting unpaid wages.
  • Wisconsin employers are required to maintain payroll documentation for their employees.

Federal and State Wage and Hour Laws

In addition to Wisconsin's wage claim law, most Wisconsin employees are protected under the Fair Labor Standards Act (FLSA). The FLSA provides additional protection against failure to pay minimum wage, failure to pay overtime, misclassification of employees in order to avoid paying overtime and other labor law violations.

Chapter 109, Wisconsin Statutes, requires most Wisconsin employers to pay all workers all wages earned at least monthly with no longer than 31 days between pay periods. The only employers exempted from such requirements are those engaged in logging operations and farm labor. Employees engaged in logging operations and farm labor must be paid no less often than at regular quarterly intervals.

Employers may establish more frequent pay periods (e.g., weekly, biweekly or semi-monthly).

Employees who quit or who are discharged from their job must be paid in accordance with the employer's regular pay schedule. Commissioned employees should be paid based on whatever pay system was established throughout employment unless there is a specific written agreement.

An employer is prohibited from retaliating against any employee who,

  • files a complaint
  • attempts to enforce a right permitted by statute
  • testifies in a case, or
  • assists in a case

under the state's labor standards laws including child labor, minimum wage, hours of work and overtime, wage payment and collection and prevailing wage rate laws.

This law's protections also apply if an employer takes an adverse employment action against an employee because that employer believes the employee has exercised any of the above rights.


RECENT CASE LAW UPDATES


Spoerle v. Kraft Foods Global, Inc., 614 F.3d 427 (7th Cir. 2010). (Seventh Circuit Court of Appeals affirmed U.S. District Court for the Western District of Wisconsin's decision to grant employees' motion for summary judgment).

Plaintiffs sued their employer contending that hourly employees at employer's plant should be paid for time spent donning and doffing safety and sanitation articles and walking to and from their work stations at the beginning and end of their work shifts.

Although the FLSA allows labor and management to vary, through collective bargaining, the requirement that employers pay workers for time spent donning and doffing "integral and indispensible" safety gear under 29 U.S.C. Sec. 203(o), Judge Easterbrook found that that provision did not preempt Wisconsin state law requiring such activities to be compensated at minimum wage or higher. In addition, FLSA's express savings clause did not excuse the employer's reduction of wages paid in excess of FLSA's applicable minimum wage.

Sayer v. Opequon Motors, Inc., No. 3:10-CV-79, 2010 WL 3702472 (N.D.W.Va. Sept. 16, 2010). (Order denying without prejudice Defendant's Motion for Judgment on the Pleadings).

Plaintiff filed an action against her employers claiming that they failed to pay her overtime wages in violation of the FLSA, 29 U.S.C. § 201. Defendants filed a Motion for Judgment on the Pleadings, arguing that the claim must be dismissed because Plaintiff was exempt from the overtime requirements of the FLSA. However, in reaction to Plaintiff's filing an Amended Complaint adding allegations pertaining to the positions of employment she held, Defendants requested that their prior motion be held in abeyance for ninety days so that they could conduct discovery in order to determine whether their motion should be withdrawn or converted to one for summary judgment. Instead, the judge found that it was more appropriate to simply deny Defendant's motion without prejudice, noting that they could refile their motion as one for judgment on the pleadings, or for summary judgment, upon the completion of discovery.

Lazaro v. Lomarey, Inc., No C 09-02013 RMW (PVT), 2010 WL 3636207 (N.D.Cal. Sept. 14, 2010). (granting Plaintiffs' motion to compel Defendant to respond to specific discovery requests).

Plaintiffs were seeking production of information regarding the gross revenues of the Defendant company and its tax returns for the four years preceding the filing of the complaint. Defendants objected on grounds of corporate privacy, asserting that Plaintiffs had "failed to show a sufficient probability of establishing a valid FLSA claim against it to justify such an invasion of its corporate privacy."

The court followed a test set out in Karen Gattegno v. Pricewaterhousecoopers, LLP, 205 F.R.D. 70, 73 (D. Conn. 2001), stating that "individual tax returns are discoverable if: (1) it clearly appears they are relevant to the subject matter of the action or to the issues raised thereunder, and (2) there is a compelling need therefor because the information is not otherwise readily obtainable." In applying the facts of the case to the above noted test, the judge found that the discovery sought was relevant to the claim because the Plaintiffs have to show that the company meets certain gross income requirements to establish potential liability, and that the discovery sought was likely not obtainable from some other source. She, therefore, granted Plaintiff's motion to compel.

Dorsey v. The Green Turtle Franchising, Corp., No. CCB-10-92, 2010 WL 3655544 (D.Md. Sept. 14, 2010). (granting Plaintiff's motion for Conditional Certification).

Plaintiffs, employees of a Green Turtle restaurant/bar at BWI airport, claimed that their employer took a tip credit against the minimum wage (as permitted) but failed to inform them that it was doing so, as required under 29 U.S.C. Sec. 203(m). The rule in the Fourth Circuit is that even if the wages paid plus the employees' tips met or exceeded the minimum wage, the employer may still be subject to liability for failing to inform the employees that it was taking a tip credit against the minimum wage.

The judge found, based on the Plaintiff's affidavits—in combination with the Defendant's answer and the affidavit of Defendant's CEO—that there were enough restaurants (8 to 12) in Maryland and nearby that the Plaintiffs could make a factual showing that there were "similarly situated" victims of the Defendant's FLSA violation. In addition, although the judge noted that Defendant's argument (that no additional wage liability should result from a "failure to warn" where the employees have in fact received the minimum wage and been permitted to retain all their tips) was understandable, she stated that such disagreement was not sufficient to defeat conditional certification.

Lopez v. G.A.T. Airline Gorund Support, Inc., No. 09cv2268-IEG(BGS), 2010 WL 3633177 (S.D.Cal. Sept. 13, 2010). (granting, in part, Plaintiff's Motion for Collective Action Certification).

Plaintiff's are suing their former employer, G.A.T., for failing to pay minimum and overtime wages as a result of Defendant's requiring employees to pay deposits for company property, failing to pay for commuting time, and failing to provide an uninterrupted meal period. At this point in the litigation, they seek to certify an FLSA class under 29 U.S.C. Sec. 261(b), consisting of all current and former employees of G.A.T. at four airports in California.

After putative Plaintiffs were given notice of the action and an opportunity to join (of which 206 did), the court had to make a factual determination as to the propriety and scope of the class. The three relevant factors the court uses in determining the propriety and scope of the class are: (1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to the defendants with respect to the individual plaintiffs; and (3) fairness and procedural considerations. 29 U.S.C. Sec. 216(b). After analyzing the facts of the case in light of the considerations noted above, the court found that: 1) Plaintiffs are similarly situated with regard to G.A.T.'s common policies on paying deposits and commuting (but not as to meal period claims); 2) Defendant's defenses are not so disparate as to preclude collective adjudication; and 3) the FLSA class should be limited to current and former employees from February 11, 2007 to present, so that it will include only those individuals whose claims are not barred by the applicable three year statute of limitations.

Uto v. Job Site Services Inc., No. CV 10-0529(SJF)(ETB), 2010 WL 3700239 (E.D.N.Y. Sept. 20, 2010). (granting Plaintiffs' Motion for a Protective Order with respect to discovery requests).

Plaintiffs, former demolition and construction workers of Job Site Services ("JSS"), brought action against JSS, alleging they were not paid overtime compensation.

In response to Defendant's discovery requests for Plaintiffs' social security numbers and tax returns, Plaintiffs' sought a protective order on the basis that such information was both prejudicial and irrelevant to the lawsuit, and that the requests were merely aimed at gathering their immigration status. The judge granted protective orders for both requests, finding that 1) discovery of their immigration status could cause embarrassment and possibly subject the Plaintiffs to criminal charges or deportation, and 2) their tax returns were private, sensitive, irrelevant, and that the Defendant could not demonstrate a compelling need for them. Most significantly, the judge noted that the "chilling effect [of such disclosures] would 'effectively eliminate the FLSA as a means for protecting undocumented workers from exploitation and retaliation.'" Moreover, the court rejected Defendant's contention that the information was central to their defense of unclean hands, stating that all of the Plaintiff's claims were legal and that the unclean hands defense can only be asserting in equitable actions.

Canela-Rodriguez v. Milbank Real Estate, No. 09 Civ. 6588(JSR), 2010 WL 3701309 (S.D.N.Y. Sept. 20, 2010). (denying Defendant's Motion for Summary Judgment).

Plaintiff, a building superintendent, filed a lawsuit against his employer, making claims for minimum wage and overtime violations under the FLSA. Defendant moved for summary judgment, contending that Plaintiff's contradictions in his testimony illustrate that he cannot make out a prima facie case as to his hours worked and wages paid. The judge rejected this argument and instead found that Plaintiff's testimony as to his recollections of his hours and wages was sufficient to show that there is a question of fact best left to determination at trial.

In addition, the court did not find persuasive Defendant's assertion that Plaintiff was exempt from the FLSA because he was an "employee employed in a bona fide executive capacity" under 29 U.S.C. § 213(a)(1). The judge—taking into consideration the fact that exemptions are narrowly construed against the employers seeking to assert them—stated that Defendant's argument that an apartment superintendent with a "staff" of two porters should be treated as an "executive" is dubious on its face and does not entitle them to summary judgment.

Mancuso v. Florida Metropolitan University, No. 09-61984-CIV, 2010 WL 3702511 (S.D. Fla. Sept. 16, 2010). (denying Plaintiff's Motion to Expand the Scope of Class Notification).

Plaintiff, an admissions representative, brought a collective action against Defendants Florida Metropolitan University and Corinthian Colleges contending that they failed to pay overtime wages to him and his proposed class of current and former admissions representatives employed at Defendant's Pompano Beach (Florida) campus. He then sought to have the court greatly expand the scope of the conditionally certified class and authorize notice to Defendants' admissions representatives at approximately 100 campuses nationwide, arguing that all the potential plaintiffs have identical job duties and have been systematically denied full overtime pay. The judge—recognizing that the only evidence Plaintiff had in support of his theory was the affidavits of 8 admissions representatives from 5 out of the 100 campuses—denied the motion, stating that the work schedule management of the Defendants' employees is highly decentralized across the country and that taking discovery of hundreds of supervisors to show Defendants have an informal across-the-board policy of not paying overtime wages would render the collective action inefficient.

Stadmire v. Sawyer Property Management of Florida, LLC, No. 8:10-cv-528-T-33TBM, 2010 WL 3702532 (M.D. Fla. Sept. 16, 2010). (granting in part Plaintiffs' attorneys' fee motion).

Because the complaint alleged an FLSA violation, judicial scrutiny was applied to the parties' settlement. As a result, the judge reduced the Plaintiffs' attorneys' fees by 10%, finding that the proposed amount was excessive in light of the fact that the case was neither complex nor labor-intensive, required no time in court, and presented no novel or difficult FLSA questions for the counsel.

Avery v. Chariots for Hire, No. DKC 09-2524, 2010 WL 3703299 (D. Md. Sept. 16, 2010). (granting Defendant's motion to dismiss Plaintiffs' complaint).

Plaintiffs were employed as drivers by Defendants and brought an action against them for unpaid wages (overtime wages, minimum wages, wages for pre-trip cleaning inspections, gratuities, and deductions).

First, the judge found that Plaintiffs failed to state a claim for overtime wages because they were subject to the motor carrier exemption. In particular, the court found that, although the named plaintiff sometimes drove vehicles that weighed less than 10,000 pounds, the motor vehicle exemption still applies so long as the time an employee spends operating a commercial motor vehicle (in this instance, one weighing over 10,000 pounds that is designed or used to transport at least eight passengers for compensation) is more than de minimus.

Second, the court decided that the Plaintiffs' had not stated a claim for unpaid minimum wages, because they neglected to allege that they had not "received, during each week, compensation equal to or exceeding the product of the total number of hours worked and the statutory minimum hourly rate."

Third, the court dismissed Plaintiffs' claim that they were entitled to wages for pre-trip cleaning inspections, as they failed to assert that they were not paid the statutory minimum wage for each of the total number of hours they worked. In addition, as noted above, they were also covered by the Motor Carrier Act Exemption.

Fourth, the judge found that the Plaintiffs failed to state a claim for unpaid tips because the money kept by the employer was in fact a service charge or gratuity collected from customers and which Defendants had not promised to share with their employees.

Lastly, the court held that the Plaintiffs' claim for unpaid wages due to deductions made from their paychecks for damages to vehicles was meritless, as the Plaintiffs had neither alleged any facts that Defendants actually deducted wages nor had they asserted that any deductions caused their wages to fall below the statutory minimum.

Harris v. Seyfarth Shaw LLP, No. 09 C 3795, 2010 WL 3701322 (N.D.Ill. Sept. 9, 2010). (memorandum opinion stating that Plaintiff was not entitled to straight time compensation for weeks she worked fewer than forty hours and that she could only recover overtime pay at one-half her regular rate of pay).

Plaintiff sued her employer, alleging that it had improperly classified her and other class members as exempt from the requirements of the FLSA. The parties agreed to an opt-in settlement class, subject to the judge's ruling on the two matters below.

First the judge found, in accordance with the Klinghoffer Rule, that Harris was not entitled to straight time pay for workweeks in which she worked fewer than forty hours and was paid an amount equal to, or greater than, the federal minimum wage because the FLSA does not recognize a claim for unpaid wages if the claimant, "working less than 40 hours a week, receives payment [equal to or] in excess of what he [or she] would have been paid had he [or she] worked 40 hours a week at minimum wage."

Second, the court held that Harris was entitled to overtime pay at only one-half her regular rate since the appropriate means of calculating the amount was through the fluctuating workweek ("FWW") method. The FWW method was based on the Supreme Court's decision in Overtime Motor Transp. Co. v. Missel, 62 S.Ct. 1216 (1942), and "calculates an employee's regular rate of pay by dividing [the individual's] weekly wage by the total number of hours [he or] she works in a given week rather than by forty.


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