Monday, April 28, 2014

Overtime Pay in South Carolina

More than forty hours a week, whew! That is a lot of time to work on a weekly basis, but we do it. And the law recognizes both of the same. Employers may be required to pay overtime to an employee who works more than forty hours in a weekly pay period. The Fair Labor Standards Act (FLSA) discusses the rules and regulations relating to overtime pay. But when it looks like an employer may be required to pay overtime to its employee, there may well be an exception to the general rule that exculpates the employer from the overtime pay requirement, as is often the case with agricultural labor and migrant farmworkers.

I often hear from people that they are paid by their employer as an independent contractor, that no taxes are taken out or paid by the employer, and they are issued a 1099 each year for tax purposes. This type of unscrupulous behavior by employers results in additional burdens upon the employee and benefits to the employer that the employer is not otherwise entitled to under the law and the employee should not rightly have to bear under the law. People who believe they are misclassified as independent contractors by their employer and should correctly be classified and paid as an employee may file a request with the Internal Revenue Service (IRS) to investigate and determine whether the person is an employee or independent contractor.

Presuming that your employer at least has you correctly classified as an employee and not as an independent contractor, I often hear from people that they work more than forty hours a week and are not compensated for their work. It is not so common that folks work more than forty hours a week and are compensated at their normal rate of pay, but it is much more common that people are simply not compensated at all for work above and beyond forty hours. Sometimes people believe that since they are paid on a salary basis that they are not entitled to any overtime pay or have their own conceptions and understandings of justifications for the non-payment.

Most commonly, people are often not compensated at all for work above forty hours a week because the employer is unscrupulous and the employee works at the mercy of the employer. Due to socioeconomic conditions and other circumstances, the employee may have little or no choice and must continue working under these absurd conditions. Employers may pay their employees a flat rate for a day's worth of work, for a week, or for a particular job, and without reference or concern as to the number of hours worked in the pay period or the law. The employee may even be required to clock out upon reaching forty hours for the week, and the employer may well pay in cash to avoid detection and evidence of the same.

The FLSA is one law that may provide a legal remedy to an aggrieved employee. Also relevant and possibly helpful would be the South Carolina Payment of Wages Act which provides for treble, or triple damages, and attorneys' fees, costs, and expenses. Are you entitled to overtime pay for hours worked above and beyond forty in a week? Are you correctly classified as an employee or misclassified as an independent contractor? If you have any questions, feel free to contact our employment attorneys in Hilton Head or Charleston, SC.


Sunday, April 20, 2014

Timeshare Rentals: The Biggest Lie of Them All?

South Carolina timeshare law prohibits timeshare sales people from lying to potential purchasers, or marks. However, that does not stop timeshare sales people from making fraudulent statements to marks or targets. Specifically, South Carolina timeshare law prohibits timeshare sales people from telling targets that the timeshare is an investment or that the target will somehow profit from rental income. A simple Google search will reveal more reports of these lies told by timeshare sales people in South Carolina and on Hilton Head Island that anyone reasonably has time to review.

Telling folks that their timeshare purchase will be an investment, something that will make the buyer money, is wrong. Promising folks that they will profit from their purchase through rental income is also wrong. These two lies are particularly abhorrent because, not only does the person buying the timeshare lose when they exchange their money for a timeshare (I have seen Hilton Head Island timeshares sell for $1.00 on eBay), but the person also loses out on the promised rental income from the timeshare.

The timeshare company may mislead the purchaser into believing that the timeshare company will actually rent out or sell the purchaser's timeshare on the purchaser's behalf. It makes no sense, of course. If the timeshare company could rent out someone's timeshare week for a profit above and beyond the purchase price, why would they sell them to people instead of renting out the weeks for themselves? Regardless, this lie is told, and you can find it reported time and time again about timeshare companies and sales people in South Carolina and on Hilton Head Island for over a decade.

The keys to the scam include putting off the purchaser until the rescission period has expired and then telling the purchaser that he or she must contact the sales person directly in order to list the timeshare week for rental/sale. After the rescission period, the sales person simply stops answering his or her phone, returning your calls, and responding to your e-mails. When you call the office, the sales person is not available or no longer works there, of course. You may even make an appointment to see the sales person, and when you arrive, you discover that the sales person will not be attending the scheduled meeting because, well, you can make up the reason.

But the most effective key to the scam is using phantom discounts to the purchase price to con the purchaser into believing he or she is receiving some rental monies upfront and that they are being applied to the purchase price as a discount at purchase. For instance, if the purchaser is promised $2,000.00 a year in rental income for the annual timeshare week, the sales person may reduce the initial purchase price from $20,000.00 to $14,000.00, telling you that the timeshare company is going ahead and paying you the $2,000.00 rental income for the first three years as the basis for the $6,000.00 discount.

Of course, this is a lie. And what the mark does not know is that the sales person has the discretion to reduce the sales price and is simply making the reduction in price and telling you that the reduction represents the first three years' rental income. This could put you off for three years or more before you might inquire further about the rental income. Not only does that get you past the rescission period, but some statutes of limitations are three years. Are you still waiting for the check in the mail from the timeshare sales person for the rental or sale of your timeshare week?

Tuesday, April 8, 2014

Workers' Compensation: Employees Must Look Out for Themselves

The most common scenario in a South Carolina workers' compensation matter involves a simple on-the-job injury in South Carolina to an employer of a South Carolina business. The employee's job often involves laborious tasks and strenuous labor. The employee is injured and tells his or her supervisor. The supervisor takes the employee to get treated at the local emergency department.

After that, things can get a little fuzzy. The employee is often injured such that he or she cannot immediately return to work and must remain out of work under the doctor's orders for a certain period of time. The employee does not report to the worksite and will call a supervisor, crew leader, or employer to report the absence. Paid time off may not be available, and the employee will remain out of work and without pay. With little or no communication from the employer, no income, and medical bills piling up, the employee will reach out to a lawyer. Finally!

The primary concern of any any workers' compensation attorney should be in obtaining the proper medical treatment for the attorney's client. The attorney will need to notify the Workers' Compensation Commission and employer's workers' compensation insurance company. The employer's insurance company should pay for any medical treatment for employee. But what is the employer's name again? And the insurance company should pay 2/3 of the employee's average weekly wage if the employee is out of work under doctor's orders for a certain period of time. But how much was the employee being paid?

The attorney for the employee receives a response from the employer's workers' compensation insurance company's insurance adjuster: "Dear Sir, I have consulted with my client, the employer, and the employer is not aware that your client is an employee." What? OK. The attorney calls the client and asks the client/employee to bring in a pay stub (or take a photo with the client's cell phone and e-mail it to the attorney, right?). But the employee doesn't get paid by check. Only in cash.

The client gets paid in cash only. OK. How about an employment contract. No. An e-mail? No. This is a manual labor job, not a desk job. A hand-written letter? Maybe the employer and employee are pen pals. No. Maybe the other employees will testify contrary to their employer. Hilarious. All avenues exhausted, it's just the employee's word against the employer's word.

The employer has protected itself by paying the employee in cash, not providing paystubs or a contract, and intimidating its employees to testify on its behalf. What has the employee done? Often nothing. Owning no bank account, there is no record of any regular deposits of the money paid by the employer to employee in cash and there is no record of employment. The employee faces a very difficult battle at a workers' compensation hearing when trying to prove he or she was an employee of employer, was injured on the job, reported the injury in time and to the right person, and was paid a certain weekly wage.

Employees should obtain some proof of their employment with employer, though it will almost certainly not be an employment contract, it may be a pay stub, e-mail, text message, letter, or anything whatsoever that would support the employee's assertion that he or she was an employee of the employer when the employee was injured. A record of pay is also helpful, whether it is handwritten or evidenced by regular deposits on pay days. Any documentation and information is helpful to the employee and claimant in a workers' compensation claim.

There are a lot of injustices in this world. An unscrupulous employer putting its employees in such a situation is certainly wrong, and employees must take measures to protect themselves. But if they do not, no one will revolt. There will not be riots in the streets. But the employee may be stuck without the benefits available to him or her under the South Carolina Workers' Compensation Act. Please feel free to contact our attorneys to discuss any concerns you may have with your employer.