The class action lawsuit is an effective way for employees with small individual wage claims to band together and recover unpaid wages from large, powerful employers. Class action lawsuits provide a cost-effective way for employees to share the costs and fees incurred in the effort to collect relatively small amounts of wages owed to them individually and to hold employers legally accountable when they circumvent federal and state laws designed to ensure employees receive a fair wage.  A class action “is a procedural device that was adopted with the goals of economies of time, effort and expense, uniformity of decisions, the promotion of efficiency and fairness in handling large numbers of similar claims.” In re West Virginia Rezulin Litigation, 585 S.E. 2d. 52, 62 (5th Cir. 2004).

For a class action to be approved or “certified,” the named plaintiff(s) bringing the lawsuit must demonstrate that they are “similarly situated” with others of the same class, meaning the class members must have been subjected to the same state-wide or nation-wide policy or scheme that resulted in the unpaid wages.  Class members who are similarly situated are generally employed by the same employer and often have the same job title. Class actions arising out of the employment context typically allege violations of wage and hour laws, including but not limited to, violations of the New Jersey Wage and Hour Law (“NJWHL”) and its federal counterpart the Fair Labor Standards Act (“FLSA”).

A common claim under the FLSA and NJWHL for unpaid overtime wages is where an employer misclassified an employee as exempt from receiving overtime wages. Generally, employees are entitled to overtime wages at a rate of 1 ½ times their regular rate of pay for all hours worked over 40 in a workweek. N.J.S.A. 34:11-56a4. However, employees are exempt if the work they perform is primarily executive, administrative or professional in nature. Id.; N.J.A.C. 12:56-7.1. The definition of these exempt categories is defined by the provisions of 29 CFR § 541.0, et. al. An employee may have a misclassification class claim if an employer has a common policy to not pay the employee and others similarly situated overtime wages because the employer misclassified the employees as exempt from receiving overtime. For example, a manager who has little to no independent discretion as to their job duties, who cannot independently make managerial decisions and primarily performs the same customer service duties and manual labor as non-exempt employees could have a potential legal claim for being misclassified as exempt from receiving overtime pay. 29 C.F.R. § 541.700.

Another potential class action claim under the FLSA and NJWHL is where an employee is working off-the-clock, i.e., not being compensated for all hours worked. This occurs when the employer has an unwritten policy or practice that causes or leads to off-the-clock work, particularly where that unwritten policy related to certain performance/financial goals set by the employer. The class members must prove that the employer knew or should have known the employee and those similarly situated were working off-the-clock.  Examples of when a worker must be paid for hours worked include when an employee: (a) voluntarily continues to work at the end of regular working hours; (b) needs to finish an assigned task, prepare reports, finish waiting on a customer or take care of a patient in an emergency, and (c)  takes work home to complete in the evening or on weekends to meet a deadline. elaws/whd/flsa/hoursworked/suffer.asp

In addition to claims brought under the NJWHL and FLSA, an individual may bring a class claim against an employer if that employer misclassified them as an independent contractor, rather than classifying them as an employee. The ABC test derived from the New Jersey Unemployment Compensation Act, N.J.S.A.43:21-19(i)(6), governs whether a plaintiff is an employee or an independent contractor for purposes of resolving a wage-payment or wage-and-hour claim. See generally Hargrove v. Sleepy’s, LLC, 220 N.J. 289 (2015). To succeed in these types of claims, an individual must show that they were not free from control or direction over their performance, their service was outside the employer’s usual course of business, and the individual was not customarily engaged in an independently established trade, occupation, profession or business.

The attorneys at Mashel Law are experienced in handling class action claims. If you believe you are owed unpaid wages, then call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. Mashel Law, located in Morganville, New Jersey, is dedicated to protecting the rights of employees.

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