Jeffrey (Jeff) H. Ruzal, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in the Bloomberg Daily Labor Report, in “COVID Hazard Pay Has Ripple Effects in Today’s Overtime Cases,” by Robert Iafolla. (Read the full version – subscription required.)

Following is an excerpt:

Potential wage-and-hour liability exposure persists for employers that provided additional wages in response to the pandemic, even as Covid-19 hazard pay has mostly dried up.

Workers have filed at least 14 federal collective actions against employers for allegedly failing to pay all overtime owed because they didn’t include virus pay boosts when calculating overtime rates, according to a Bloomberg Law review of cases. Nine of those lawsuits have either settled or are in the process of being settled, court records show.

The lawsuits stem from the Fair Labor Standards Act’s computation of the overtime pay rate, which is equal to 1.5 times a worker’s base pay rate. Giving a pay bump related to the virus results in an increase to the base rate used to determine the overtime rate. …

The window for companies to get hit with wage-and-hour lawsuits related to Covid hazard pay remains open even though the alleged violations could date back to 2020. The Fair Labor Standards Act has a three-year time limit for claiming willful violations. Some state wage laws give workers even more time to file, extending the limitations period to four or even six years.

Workers in health care, public safety, and businesses deemed essential—like grocery stores, pharmacies, and food production—were most likely to have received extra pay during the first phase of the pandemic. Employers boosted compensation, often adding $2 to $5 to workers’ hourly wages, or provided one-time payments. …

Retroactive Payments Possible

Employers that provided hazard pay should conduct an internal audit of their pay practices to determine whether they should include such pay in their calculations of the regular rate for overtime purposes, said Jeff Ruzal, an attorney at Epstein Becker & Green PC. If so, they should adjust overtime-eligible workers’ base rates to account for the additional money, he said.

Any employer that finds it didn’t properly factor hazard pay into the calculation of overtime rates would need to make a strategic business decision about whether to correct the mistake by retroactively paying workers, Ruzal said.

Though it would be a good first step toward compliance and addressing exposure for the underpayments, one danger in making retroactive payments is that it could trigger a worker to sue for additional statutory liquidated damages based on the additional overtime exposure, he said.

Most FLSA lawsuits seek unpaid wages plus liquidated damages equal to the back pay amount, also known as “double damages.” Workers who receive a retroactive payment could sue for liquidated damages alone, because their employers’ attempt to fix the overtime underpayment would result in a late payment, Ruzal said.

“File that under ‘no good deed goes unpunished,’” he said.

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