The calculation can also be different for tipped employees. The employer may be able to claim a maximum “tip credit” of $5.12 per hour allowed under federal law. In calculating the overtime rate for a tipped employee, an employer must multiply the minimum wage ($7.25 per hour), subtract the tip credit ($5.12 per hour), and multiply that figure by the number of overtime hours worked.
To read more about “Overtime” under the FLSA, please see U.S. Department of Labor Fact Sheet #23.
An employee’s regular rate of pay includes all compensation for employment except certain payments excluded by the FLSA. Compensation for employment may be determined on a piece-rate, salary, commission, or some other basis. The regular rate of pay is computed on the basis of the average hourly rate derived from such earnings (by dividing the total pay for employment in any workweek by the total number of hours actually worked).
Payments which are not part of the regular rate include pay for expenses incurred on the employer's behalf, premium payments for overtime work or premiums paid for work on Saturdays, Sundays, and holidays, discretionary bonuses, reporting time pay, bona fide profit-sharing plan, gifts and payments in the nature of gifts on special occasions, and payments for occasional periods when no work is performed due to vacation, holidays, or illness. But bonuses and commissions that are based on fixed pre-established standards must be included.
Accordingly, the formula to compute the regular rate is:
Total compensation in the workweek (except for statutory exclusions) ÷ Total hours worked in the workweek = Regular Rate for the workweek
Here are some helpful examples of these formulas in practice:
To read more about “Regular Rate of Pay” under the FLSA, please see U.S. Department of Labor Fact Sheet #56A or the Department’s Handy Reference Guide.
For hourly employees, who receive no other compensation, overtime under the FLSA is easy to calculate: the first 40 hours of the workweek are paid at the normal hourly and any additional hours are paid at one and a half times the normal hourly rate. Where an employee in a single workweek works at two or more different straight-time rates, the regular rate for that week is the weighted average of such rates (the earnings from all such rates are added together and this total is then divided by the total number of hours worked).
A fixed salary or other different compensation plans for a regular workweek longer than 40 hours does not discharge FLSA statutory obligations. For employees that receive compensation in addition to their hourly rate, or are paid under a different pay structure, it can be more difficult. First your will have to determine the regular rate of pay. That means if you receive commissions, bonus, or other compensations and your employer does not base your overtime on this additional compensation, you may be underpaid.
Federal Law does not limit the hours that an employee can work. But, unless exempt (for more information for FLSA exemptions, click here), employees covered by the FLSA must receive overtime pay for hours worked over 40 in a workweek at a rate not less than time and one-half their regular rates of pay. This is based on the employee’s workweek, which can be different then the calendar week. A workweek can begin on any day and at any hour of the day established by the employer. But this day has to be fixed and may not arbitrarily change from workweek to workweek. Additionally, calculating overtime by averaging the hours for multiple workweeks in a pay period is not allowed.
Overtime under the FLSA is not limited to hourly workers; employees who receive salary, bonus/commission, or work a piece-rate (paid per task completed) may also be entitled to overtime. Tipped employees may also receive overtime. This is because overtime is based on the regular rate of pay and not the hourly rate.
The FLSA does not allow deduction from an employee’s wages for items which are considered to be primarily for the benefit or convenience of the employer, including uniforms with company logos, tools, safety equipment required by law, and other work related equipment. This is also true of pre-employment physicals and other examinations. However, employers may deduct the costs of certain items, by agreement of the employee, in very limited circumstances.
To read more about “Deductions from Wage” under the FLSA, please see U.S. Department of Labor Fact Sheet #16.
Important Note: The FLSA may be supplemented by higher standards set in your state. For more information about state specific laws, click here.
Under the FLSA, tipped employees (individuals engaged in occupations in which they customarily and regularly receive more than $30 a month in tips) may be paid less then federal minimum wage. The employer may consider tips as part of wages when calculating an employee’s minimum wage, but the employer must pay the employee at least $2.13 an hour.
The employer who elects to use tips as a credit against an employee’s minimum wage must inform the employee in advance and must be able to show that the employee receives at least the applicable minimum wage (see above) when wages and tips are combined. If an employee’s tips combined with the employer’s direct wages of at least $2.13 an hour do not equal the minimum hourly wage, the employer must make up the difference.
An employee must retain all of their tips, except to the extent that they participate in a valid tip pooling or sharing arrangement. A tip is the sole property of the tipped employee regardless of whether the employer takes a tip credit. The FLSA prohibits any arrangement between the employer and the tipped employee whereby any part of the tip received becomes the property of the employer.
To read more about “Tipped Employees” under the FLSA, please see U.S. Department of Labor Fact Sheet #15.
Effective July 24, 2009, the federal minimum wage is $7.25 per hour. The minimum wage does not increase automatically. Congress must pass a bill which the President signs into law in order for the minimum wage to go up. There are some exceptions to the federal minimum wage. Workers under the age of 20, workers with disabilities, full-time students, and student-learners may be paid less the minimum wage under limited circumstances.
Short rest periods, ranging from 5 minutes to about 20 minutes, are common in industry and must be counted as hours worked. So short restroom and coffee breaks should not be deduced from the time worked.
However, bona fide meal periods are not work time. Such periods must be 30 minutes or more is longer and the employee must be completely relieved of all work duties. This ensures that the employee can use their meal period for their own purposes. The employee is not relieved if they are required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating is entitled to pay.
What about waiting time and on-call time?
Often employees are required to wait for their first or next work task of the workday. This may be called “waiting time” under the FLSA. Whether waiting time is time worked under the FLSA depends upon particular circumstances. The Court will look to the agreements between employer and employee, the nature of the work, its relation to the waiting time, and all of the circumstances.
When an employee is on duty, but is simply awaiting their next assignment, this time is compensable and must be paid. For example, an employee may be waiting for their next customer or waiting for a machine to finish, but they are still on duty and must be paid. Only when a period of inactivity is long enough to enable an employee to use the time effectively for their own purposes and they are completely relieved from their duties are they off-the-clock.
On-call time occurs when an employee is expected to be available to come into work, usually with short notice, to carry out their working duties. An employee who is required to remain on call on the employer’s premises or so close thereto that they cannot use the time effectively for their own purposes is working while ‘‘on call’’. Therefore, this time must be paid. But, an employee who is not required to remain on the employer’s premises, but is merely required to be reachable should they be needed is not working while on call.
How does travel time factor into my compensation?
While employees are not paid for their normal commute to work, employees may be paid during work-related travel. Under the Portal-to-Portal Act, employers are not required to pay for the time that an employee takes to travel to or from their home to a normal job site. However, if an employee is require to travel an inordinately long way to, different job site, that time may be compensable as time worked. This would include work trips that require an employee to travel out-of-town. But there may be some exceptions for travel periods that extend more than one work day.
Additionally, if an employer requires their employees meet at a particular location and travel together to a work site, or use an employer provided vehicle, this travel time may also be compensable. Similarly, the Portal-to-Portal Act requires employers to pay employees for their time spent traveling from one work site to the next.
Whether travel time is compensable as hours worked under the FLSA is often difficult to determine.
To read more about “hours worked” under the FLSA, please see U.S. Department of Labor Fact Sheet #22.
Whether determining minimum wage and overtime under the FLSA, the first step is to calculate the number of hours you work. In general, a person is “employed” when they are “suffered or permitted to work. Thus, the number of hours worked is not the same as an employee's scheduled shift. Instead, Courts look at the period between the time, on any particular day, when such employee commences his/her "principal activity" and the time on that day at which he/she ceases such principal activity or activities.
Even if the employer does not request that an employee stay before or after their shift, this is compensable time. For example, an employee may voluntarily continue to work at the end of the shift to finish a call or complete a task. The reason is immaterial, this time must be paid.
The Fair Labor Standards Act of 1938 (FLSA) establishes federal minimum wage and overtime pay standards for most private employers. Enterprises having workers engaged in interstate commerce, producing goods for interstate commerce, or handling, selling, or otherwise working on goods or materials that have been moved in or produced for such commerce by any person, are covered by the FLSA. In practice, this includes most employers in the United States.
However, not all employees are entitled to minimum wage and overtime pay under the FLSA. The FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional and outside sales employees. For more information regarding the FLSA exempt employees and misclassification of employees, click here.
The False Claims Act incentivizes whistleblowers to file qui tam lawsuits by providing them with compensation if their efforts successfully reveal fraud and recover unlawfully obtained funds. In a qui tam lawsuit in which the government participated, the whistleblower may receive between 15 to 25 percent of the money recovered by the government, whether through settlement or trial. In cases where the government declined to intervene, a successful whistleblower could receive as much as 30 percent of any amounts recovered. The amount of compensation depends on how much the whistleblower's information and involvement throughout the case aided the government's recovery.
After a whistleblower files a qui tam lawsuit (with the required help of an attorney), the government begins an investigation into the complaint's allegations of fraud. This process can take considerable time to complete. Once it concludes its investigation, the government will decide whether it will join in the case. If the government declines to do so, the relator may still pursue the lawsuit on their own, and the government retains the right to intervene at a later date. If the government takes up the case, the relator and their attorney remain active and involved in the lawsuit.
Any act or omission that involves defrauding the federal government out of money can form the basis of a qui tam action. Common types of wrongdoing that often lead to False Claims Act cases include:
Any person or organization can file a qui tam lawsuit provided they possess sufficient information regarding an act of fraud against the federal government to support their claim. Most often, qui tam lawsuits are filed by current or former employees of companies that do business with the government, special interest groups, state and local governments, and competitors of the alleged wrongdoer.
To encourage people to come forward and report fraud without fear of retaliation or other adverse consequences, the False Claims Act contains robust protections for whistleblowers. The law allows whistleblowers who experience retaliation for their actions to sue for reinstatement, double back pay with interest, compensatory damages, legal costs, and damages for noneconomic harm incurred, such as emotional distress.
The federal False Claims Act originated during the Civil War to stop rampant war profiteering that defrauded the federal government out of millions of dollars. The act, which has been amended several times since its enactment, provides financial incentives to individuals for exposing fraud against the federal government. Specifically, the law gives "whistleblowers" the right to file a lawsuit on behalf of the government against the perpetrators of the fraud. If a whistleblower's False Claims Act lawsuit (also called a qui tam suit) results in a judgment or settlement in the government's favor, the whistleblower can receive up to 30 percent of any amounts recovered.
The basis of a valid medical malpractice case is that a doctor or other medical professional breached the duty of care owed to you or your loved one and that that breach directly caused harm.
You might know that this occurred because of complications that arise after a medical procedure or care. The doctor or provider also might admit to making a mistake that has caused you harm. You may also discover that a provider did not provide informed consent and performed a procedure or treatment that you did not know about or approve of, which hurt you. Any of these scenarios could become grounds for a medical malpractice claim.
To file a medical malpractice lawsuit in Michigan, the prospective defendant (the doctor or other medical professional) will need to be served a Notice of Intent to Sue, also known as an NOI. This NOI must be served at least 182 days before the start of a lawsuit. The statute of limitations is paused during this period and does not affect the two-year (or six month) statute of limitations.
Michigan law grants two years from the date of the doctor's negligent actions or six months from the discovery of the negligence for a claimant to file a medical malpractice lawsuit. All claims must be brought within six years since the original incident except in cases involving harm to the patient's reproductive systems or when the provider has actively concealed their negligent actions.
Medical malpractice cases are legally complex and can become complicated and involved. This means that the success of a medical malpractice case rests heavily on your attorney's skill and experience. For this reason, you must find a skilled malpractice attorney who can handle every aspect of your case and the challenges it might present.
To find the best attorney, you will need to do some research. Start with an internet search for medical malpractice attorneys near you and spend time exploring each of their websites. You will want an experienced medical malpractice attorney with a proven track record of success for plaintiffs. You can further investigate each potential attorney by checking online for reviews from former clients.
You can schedule consultations with the attorneys you find to discuss your case and get a feel for their style and personality. You will also want to know how they charge for their work in medical malpractice cases. Some work on a contingency fee basis, meaning the attorney will take a percentage of any award or settlement that is ultimately given to you in the case. If you do not win, you will pay the attorney nothing.
If you or a loved one suffered as the result of an incident of Michigan medical malpractice, contact the dedicated team of attorneys at Sommer Schwartz, P.C. Our team of experienced attorneys handle all types of medical malpractice cases.
Not everything that goes wrong in the delivery room is the result of a medical mistake. But when doctors, nurses, and other medical professionals breach their duty of care by failing to use the judgment, make the decisions, and take the actions required to prevent injury to the baby, it can constitute medical malpractice.
Examples of medical errors that often cause birth injuries and form the basis of medical malpractice lawsuits include:
Some birth injuries are minor and resolve themselves with minimal, if any, long-term impact on the child. Many more result in serious, permanent, and debilitating health problems, as well as death, including:
One of the most common labor and delivery complications that leads to birth injuries – and can be the basis of a birth injury lawsuit – involves insufficient oxygen supply to the baby (anoxia/hypoxia). Without a steady and sufficient oxygen supply, babies can suffer catastrophic and permanent brain injury, lifelong developmental disabilities, or death. A child’s brain can suffer oxygen deprivation due to a physician’s failure to detect and address a twisted umbilical cord. Misuse of forceps or vacuum extractors can also damage an infant’s brain by putting undue pressure on it or depriving it of sufficient blood flow.
Other frequent complications that cause birth injuries include:
No. While birth injuries occur during labor and delivery, birth defects develop during pregnancy. Birth defects typically involve problems with the child’s nervous system, organs, or bones. Genetic mutations or fetal exposure to toxic substances and medications are frequent causes of birth defects, though some may involve medical errors.
Birth injuries occur when a baby suffers an injury or a health problem during labor and/or delivery. Most often, birth injuries occur due to physical pressure the baby experiences as they move through the birth canal or because of oxygen deprivation during or near the time of birth. While birth injuries are often the result of unavoidable complications, many cases occur due to the negligence of doctors, nurses, and other delivery room personnel.
Statute of limitation laws vary from state to state, but in Michigan, you have three years to bring a personal injury claim against the at-fault party. Time is always of the essence, so consult an attorney immediately to allow for enough time to investigate your case and pursue the most favorable outcome.
Personal injury damages depend on the extent of your injuries and the specific facts of the case. There is no way to tell exactly how much your claim may be worth before we investigate the events that led to your injury. You may be entitled to recover economic damages, such as medical bills, lost income, and property damage, and sometimes noneconomic damages like pain and suffering.
The simple answer is that you have a personal injury case when another person’s negligence caused your injury. This may be difficult to prove, so it is important to contact a personal injury attorney like the lawyers at Sommers Schwartz. We will review the details of your case and determine who may be potentially at fault.
A birth injury usually occurs when something goes wrong during labor and delivery and the baby is harmed. A birth defect is a physical or chemical abnormality that develops before birth and may be inherited, or the result of an environmental influence.
Countless situations can result in harm to baby or mother during labor and delivery, but many birth injuries result from oxygen deprivation, the use of excessive force during delivery, or the delay of a cesarean section when one becomes necessary.
Common birth injuries include fractured collarbones or arms, shoulder dystocia, bruising to the face and head, brain damage, cerebral palsy, and Erb’s palsy. Some birth injuries may be resolved without lasting damage, while others cause lifetime disability or death.
The attorneys at Sommers Schwartz work on a contingency fee basis. This means you only pay for our legal services after we have successfully won or settled your case. Your initial consultation is free, and absolutely no payment is required until we get you a favorable outcome.
To obtain damages for the pain and suffering you sustain in an auto accident, you must meet four requirements:
This last element is considered a “threshold injury,” and without it, you cannot recover damages for pain and suffering.
Under Michigan’s no-fault laws, when a motor vehicle accident results in bodily injury or death, you may be entitled to damages in four categories:
If you are injured in an auto accident, you cannot rely on your insurance company (or another party’s insurer) to look out for your best interests. Auto insurance companies are notorious for finding any reason to reduce your payout, and you cannot rely on them to recover damages for your injuries.
Michigan is a no-fault state, meaning insurance companies will pay up to a certain amount for injuries and damages sustained in an accident regardless of who caused it. Under a no-fault system, there are limited options for suing for damages. Because every accident is unique, however, an experienced attorney, like the lawyers at Sommers Schwartz, will fight for your rights and make sure you are treated fairly by the other parties and insurance companies involved.
The statute of limitations for medical malpractice cases varies from state to state. In Michigan, you have two years from the date of the healthcare professional’s negligent act or omission to file a medical malpractice claim. If the malpractice resulted in the patient’s wrongful death, you have additional time to file. If a patient (or a deceased patient’s loved ones) do not discover the negligence until after the two years have passed, he or she has six months from the time he or she discovered or should have discovered the malpractice – but no more than six years after the act or omission – to bring a claim.
Plaintiffs pursuing medical malpractice claims in Michigan cannot immediately file a civil lawsuit. Instead, they are first required to give written notice – a notice of intent – to the healthcare professional accused of malpractice.
Because of the complexities in initiating and proving a medical malpractice action, you should consult an experienced attorney, like the attorneys at Sommers Schwartz.
A successful medical malpractice claim has three essential elements:
Medical malpractice involves the professional negligence of licensed healthcare practitioners and healthcare facilities. The details of each malpractice victim’s experience are unique, but most medical negligence cases arise in these circumstances:
Car accidents can happen so quickly that the impact of the collision may cause victims to feel confused, upset, or overwhelmed. In the aftermath of an accident, it is hard to know what to do next. Be prepared for what to do in the aftermath of a car collision by following these steps:
Yes, Michigan is a no-fault insurance state. All parties involved in an accident can receive compensation from their insurance companies, regardless of fault, and state law requires all drivers to have no-fault insurance.
The no-fault insurance policy has three parts: Personal Injury Protection (PIP), Property Protection Insurance (PPI), and Residual Liability Insurance. Personal Injury Protection covers the injuries and damages of the insured, regardless of who is at-fault in the accident. The person in the car accident files a PIP claim against his or her own insurance company to seek compensation.
Property Protection Insurance provides coverage for damage that an at-fault driver’s vehicle causes to properly parked vehicles or fixed properties such as buildings or lampposts. It does not cover damages to the other vehicle(s) involved in an accident unless parked. Michigan drivers must have PPI to obtain license plates.
Residual Liability Insurance covers bodily injury to the other drivers or passengers of other vehicles who suffer an injury that meets the threshold in a Michigan accident caused at least in part by your negligence. It also covers damages over and above the personal injury protection limits. In an out of state accident, it covers the damages allowable under the laws of that state.
After a car accident, victims of the collision or their families may want to bring a claim against the at-fault driver. To file a lawsuit and obtain compensation for injuries and damages, car accident victims need to be aware of the amount of time they have to initiate an action, also called the statute of limitations.
Under Michigan law, a victim has three years from the date of the car accident to file a lawsuit against the other driver. If the victim does not file his or her lawsuit within the time limit, the law may prevent him or her from ever suing the driver responsible for the accident.
If the other driver is uninsured or underinsured to fully compensate you for your injuries, and you purchased uninsured or underinsured motorist benefits, you have a claim under your own insurance policy to collect those benefits. The statute of limitations for breach of contract is six years, but many policies have language shortening the period of time to bring an uninsured or underinsured motorist claim, some as short as one year. Attorneys are familiar with reading policy language and can determine the time frame for bringing your claim.
Michigan state law outlines what drivers must do after an accident. Drivers must give their contact and vehicle information and file an accident report with the police. However, Michigan law does not advise drivers about whether they should hire a lawyer after a car accident.
There were 24,687 car accidents in Detroit in 2017. Automobile accidents, even those that seem like minor collisions, often turn out to be complex. Many cases involve legal concepts such as negligent operation of the motor vehicle, driving while under the influence, and comparative negligence. Many serious injuries are not apparent immediately after the accident. Understanding and tackling such obstacles alone is not recommended.
Immediately after a car crash, you should consult a lawyer. Even if the accident is your fault, you are entitled to certain benefits from your own insurance carrier. These benefits include things like lost wages, medical expenses, replacement services, and attendant care. These benefits, which are due irrespective of fault, can be significant and insurance companies often do not pay the full benefits to which people are entitled. Attorneys have the legal knowledge and training to know how to proceed with an insurance claim or lawsuit.
Any lawyer licensed to practice can file a class action lawsuit on behalf of his or her client. But class action lawsuits and multidistrict litigation are complex and require attorneys with specialized skills and firms with tremendous resources. Thus, it is wise to retain an experienced class action lawyer.
The attorneys in Sommers Schwartz’ Class Action group have the background and skills to pursue class actions and MDL litigation across the country. We have successfully brought and resolved class actions in unpaid wage and overtime cases, complicated insurance matters, consumer cases, RICO and antitrust actions, securities cases, and pharmaceutical drug and medical device cases. Whether you are a consumer, business or municipality with an issue worthy of class action or MDL consideration, we would be happy to discuss your case.
In certain types of class actions, a member of the plaintiff class (those bringing the lawsuit) may decide to participate (opt in) or not participate (opt out) in a negotiated settlement. A class member may choose to opt out in favor of bringing an individual lawsuit. Unless the class action notice indicates otherwise, class members who do not opt out are bound by the terms of the settlement.
Class action lawsuits and MDL litigation are both effective in leveling the playing field when individuals or small businesses sue powerful organizations. Like most of us, courts have limited resources, and class actions and MDLs provide a method to process the same legal and factual issues together. This efficiency extends to the defendants, too, who are saved from having hundreds of people answer questions hundreds of times by hundreds of different lawyers in several courts in multiple states.
Class actions and MDLs avoid that chaos, reducing the cost of expensive litigation for everyone and allowing courts to attend to other cases. They are valuable tools for seeking compensation, implementing an injunction, or determining the legal rights of a large group of people all at one time and in one court.
When several individual lawsuits arising out of the same basic facts are filed in multiple federal courts, the cases can be coordinated into one district court. This process is known as multidistrict litigation, and the coordinated action is referred to as an MDL.
The judge in an MDL oversees all pretrial activities, just like a class action, and achieves many of the same efficiencies. Unlike a class action, however, an MDL preserves the individual’s claim separately – there is no class or class representative, just hundreds or even thousands of individual lawsuits assigned to one judge for pretrial proceedings.
Quite simply, a class action is often a more efficient form of litigation, both for the litigants and for the courts. Further, a person’s individual claim may be too small to pursue cost-effectively, so combining several people’s similar smaller claims into a larger pool of plaintiffs can justify the expense of litigation – especially against large corporations – and improve the chances of a successful outcome.
In general, many claims involving product defects, antitrust violations, violations of consumer protection (false advertising and deceptive sales practices) laws, wage and overtime violations, illegal background checks, ERISA and insurance disputes, mass torts, securities fraud, and shareholder oppression are best pursued as class actions. Both state and federal courts hear class actions, and the procedures are generally the same. In some cases involving violations of certain federal statutes, the class action can only be brought in federal court.
A class action is a lawsuit filed in state or federal court by a person, business, or small group who share a similar legal claim with a large number of other people, businesses, or groups. An example of a class would be all individuals who purchased a defective product and were similarly harmed by the product. If a court determines that the person or group who filed the lawsuit adequately represents the interests of the entire class of people injured by the wrongful conduct or negligence of the defendant (such as the manufacturer of a defective product), they can be “certified” as a “class” allowing the lawsuit to proceed as a class action. Once the lawsuit has been resolved by way of a settlement or verdict, all the members included in the class are bound by the outcome unless they affirmatively opt-out of the settlement.
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