Want to stop supervisors who allow off-the-clock work or look the other way when employees work unpaid overtime?
Remind them that, unlike some other employment laws, the Fair Labor Standards Act () allows employees to sue supervisors who violate the law personally—not just the organization itself.
That’s because the FLSA defines “employer” broadly to include “any person acting directly or indirectly in the interest of an employer.”
As a result, the assets of supervisors (and HR professionals) are on the line in wage-related cases. Whether you could be held liable likely depends on your role in making the decision at hand.
Why do employees sue their managers, too? Plaintiffs’ lawyers believe that two pockets are better than one. And they also think this kind of personal touch will influence a supervisor to advocate settling the case.
Recent case: Victor, a maintenance worker at a Florida apartment complex, sued under the FLSA, saying he had worked many hours that were unpaid. In addition to suing the employer, he included his supervisor, Jennifer, in the suit. He added a sexual harassment claim for good measure.
Jennifer tried to have the charges dismissed, arguing she wasn’t Victor’s employer.
But the court disagreed, noting the law’s expansive definition of employer. It said that the economic reality was that Jennifer handled time sheets, disciplined employees, exercised control over Victor’s schedule and generally controlled his work. That made her an employer and personally liable for any overtime and other wage-and-hour violations.
While the sexual harassment allegations were dismissed, Victor will still get a trial on his pay dispute. (Arean v. Central Florida Investments, No. 8:10-CV-2244, MD FL, 2012)
Final tip: Also note that failing to pay minimum wage or overtime may mean a lawsuit that looks back three years. Plus, winning employees can receive twice what they were owed—and their attorneys collect legal fees commensurate with their time and effort.
In a North Carolina case this year, a farm worker sued for unpaid wages going back three years. The court forced the employer to give him the full amount owed, plus it doubled the amount as a penalty and told the employer to pay the employee’s legal fees. (Bautista v. Zuniga, ED NC)
Lawyers are always looking for cases like these because they can be easily expanded into class-action lawsuits, representing all similarly situated employees at your company.
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