- A Florida HVAC technician has alleged that his former employer failed to pay him for overtime hours worked and that the company did not provide the personal protection equipment required by federal standards and laws.
- Robert Macke said in his May 5 complaint that HT violated the Fair Labor Standards Act (FLSA) by misclassifying him as a salaried air conditioning service technician despite that fact that he performed non-exempt work and regularly worked 50 to 60 hours a week. Additionally, newly hired technicians were classified as nonexempt, hourly employees as of October 2019, while Macke and similarly situated workers remained classified as exempt and salaried, he alleged.
- Macke also said that the company violated OSHA Personal Protection Equipment (PPE) standards by not providing PPE even though he was expected to travel to public places, including hospitals, during the COVID-19 pandemic and that OSHA's General Duty clause requires employers to provide a safe workplace free of recognizable hazards. He was fired after he complained, he added.
This case touches on two hot topics in employment law: safety responses to COVID-19 and misclassification of employees.
Although the employer in the lawsuit hasn't filed a response to Macke's charges, OSHA recently reminded employers that it's illegal to retaliate against workers who report unsafe and unhealthy working conditions and the federal agency has asked workers to contact them immediately if the worker believes the employer has retaliated against them for reporting unsafe working conditions.
According to OSHA regulations, "an employer may not retaliate against an employee when the employer knows or suspects that the employee has engaged in activity protected by the statute" such as complaining about unsafe conditions. Of course, an employer may still undertake an adverse employment action if it has a legitimate and non-discriminatory reason for the action, experts have told HR Dive, a sister publication of Construction Dive.
OSHA has also reminded employers that they are required to provide healthy and safe workplaces for employees under the Occupational Safety and Health Act of 1970 even as the coronavirus pandemic continues.
Additionally, misclassification of workers is a common issue under the FLSA and, because it tends to affect multiple workers at a time, can be an expensive mistake, especially for larger companies. The law requires that workers be paid at least the minimum wage and overtime for all hours worked over 40 in a workweek unless an exemption applies.
To determine whether workers are exempt, employers should consider both salaries and job duties, sources previously told HR Dive. All of the exemptions except the outside sales exemption require employees to make more than $684 per week. Once the salary threshold is met, the employee's job duties are considered. The required job duties vary, depending on the exemption.