美国劳资诉讼新动向：薪酬和工时诉讼

    自相矛盾的法律。虽然对于反歧视法律我们大多数人都是认同的，但薪酬和工时法律往往有悖常理。比如，某位员工为豁免员工，每天上班都迟到，你或许可以以“经常迟到”为由处罚他，但不能因为他迟到而扣他的钱。如果非豁免员工未获批准就加班，你必须因她“偷了你的时间”而向她支付工资，但你也可以以“未获批准进行工作”而处罚她。

    律师们寻找新市场。由于法律行业的变迁（比如医疗纠纷改革），很多人身伤害律师在寻找新的谋生途径。我接触到的一些薪酬和工时原告律师都曾经是“怂恿事故受伤者起诉的律师”（ambulance chasers）。如今，他们怂恿员工起诉工资纠纷。有些人甚至过去都是代表大公司的律师，由于能赚到更多钱，他们开始转而代表员工。

    老法律，新世界。《公平劳动标准法》于1938年颁布生效，时至今日，仅做了相对微小的调整，已不太适应当今的工作环境。这部联邦法律最初颁布时，美国经济仍以制造业为重，不像今天主要基于服务业。在当今的工作环境下，很多员工可以（而且确实如此）在家工作，有时工作超时却没有获得报酬。正如一位原告律师曾欢欣鼓舞地指出，这一冲突创造了“诉讼机会”。

    僵化的劳工市场：诉讼时机? 最后，当就业机会很多时，不开心的员工通常会选择离开。当他们由于经济低迷而被困在自己的岗位上时，就像现在很多人一样，他们更有可能起诉。很多员工感觉被困住了，而薪酬和工时诉讼是一群员工无需与公司“个人”对峙、争取获得更多钱的一种方式。公司没有遵守一条法规细则而已。

    当然，有些原告和他们的律师将此变得非常个人化，指责公司不守信用。如果公司不守信用，员工可以获得更多的和解金。

    确实，有些员工指控，公司未付给他们应得的报酬，这是一种敲诈勒索。根据《反敲诈勒索与腐败组织法》（Racketeer Influenced and Corrupt Organizations Act，RICO），员工可能获得4年欠薪，而经理们需要为欠薪承担个人法律责任。

    如果你是雇主或经理，别想当然地以为你不会受到此类指控。雇主需要审核他们的考勤系统、培训计划、工作描述和职责以及实际操作情况，确保他们遵守了联邦和州政府法律。

    如果你是一名非豁免员工，请确保你对所有的工作时间都做记录。如果你被规定、鼓励或要求在没有报酬的情况下加班，你应当将此事上报至公司内有权纠正这个问题的某个人那里。

    当然，员工也有权利提起诉讼。但一家公司的资金是有限的。为这些案件提供辩护的律师的费用也必须有地方出。提高消费者承担的价格？减少利润分成？我们都花钱打官司了。

    乔纳森•西格（Jonathan Segal）是律师事务所Duane Morris LLP的合伙人，他是该律师事务所就业、劳工、薪资和移民业务集团成员。本篇文章不应被视为是法律建议。

    译者：早稻米

    Confusing laws. While the anti-discrimination laws make sense to most of us, wage and hour laws are often counter-intuitive. For example, if an employee is exempt and is late to work every day, you may be able to discipline him for being consistently late, but you can't dock him for his lateness. If a non-exempt employee works overtime without permission, you almost always have to pay her for what you may perceive as "stealing your time," but you may be able to discipline her for the unauthorized work.

    Lawyers in search of new markets. Because of changes in the legal industry like malpractice reform, many personal injury lawyers are looking for a new way to make a living. Some of the wage and hour plaintiffs' lawyers I deal with are former "ambulance chasers." Now, they chase paychecks. Some are even lawyers who used to represent big companies who have switched sides because of the amount of money to be made.

    Old laws, new world. The federal law, the Fair Labor Standards Act, was enacted in 1938 and there have been only relatively minor changes to it since then. The law does not align well with today's working world. It was enacted when the U.S. had a manufacturing-focused economy, not one primarily based on services. In today's working world, plenty of employees can (and do) work from home, sometimes off the clock without pay. The clash creates, as one plaintiffs' lawyer said with glee, "opportunities for litigation."

    Rigid labor market: Time to sue? Finally, when jobs are plentiful, unhappy employees tend to move. When they are stuck because of a sluggish economy, as many are today, they are more likely to sue. Many employees feel stuck and wage and hour litigation is a way for a group of employees to try to get more money without "personally" attacking their employer. You, the employer, are simply not complying with a legal technicality.

    Of course, some plaintiffs, and their lawyers, make it very personal and argue that the companies acted in bad faith. In the absence of good faith, employees can get even more settlement money.

    Indeed, some employees are arguing that their employers' alleged failure to pay them money owed is a form of racketeering. Under RICO (Racketeer Influenced and Corrupt Organizations Act), employees can win four years of back pay and managers can be held personally liable for the unpaid wages.

    If you are an employer or a manager, do not assume that you are immune from this sort of lawsuit. Employers need to look at their time-keeping systems, training programs, job descriptions and responsibilities, and actual practices to make sure they are following federal and state laws.

    If you are a non-exempt employee, make sure you record all of the time you work. And, if you are required, encouraged or even asked to work off the clock without being paid, you should bring it to the attention of someone in your organization with the authority to correct the problem.

    Of course, employees have the right to bring claims, too. But the amount of money an employer has is limited. And the money that is spent on lawyers who defend these cases has to come from somewhere. Higher prices to consumers? Less money for profit-sharing? We all pay for litigation.

    Jonathan Segal is a partner at the law firm Duane Morris LLP, where he is a member of the firm's employment, labor, benefits and immigration practice group. This article should not be construed as legal advice.