Readers discuss whether the minimum wage should reflect living costs in the area.

India’s Labour Ministry is reaching out to all the key ministries to disclose their staff strength, especially that of contract workers, to make a fair assessment of minimum wages currently paid and draft a minimum wage plan, reports Live Mint. The Chief Labour Commissioner has already met with top officials of some key ministries such as the Railway Board in order to seek out information on whether or not the new rate of minimum wages is being paid to contract workers, the mode of payment to contract workers, as well as other benefits. A government official told Live Mint that there have been reports of complaints from unions and workers about the minimum wage not being paid.

Almost a third (30%) of international students and backpackers in Australia are earning half the minimum wage as casual employees, according to findings from a report, ‘Wage Theft in Australia: Findings of the National Temporary Migrant Work Survey.’

The report is a study of wage theft and working conditions among international students, backpackers and other temporary migrants in Australia and draws on responses from more than 4,300 temporary migrants across 107 nationalities of every region in the world, working in a range of jobs in all states and territories.

According to the report, temporary migrants comprise up to 11% of the Australian labour market. Australia’s legal minimum wage for casual workers is AUD 22.13 (USD 16.74), however the study showed that 30% of international students and backpackers were earning AUD 12 (USD 9.08) per hour or less. Meanwhile, almost half (46%) of participants earned AUD 15 (USD 11.35 per hour) or less (excluding 457 visa-holders).

Bassina Farbenblum, co-author of the report, stated that the study also dispels the myth that underpayment occurs simply because temporary migrants don’t know the minimum wage.

“We found the overwhelming majority of international students and backpackers are aware they are being underpaid. However, they believe few people on their visa expect to receive the legal minimum wage,” Farbenblum said.

The study showed that least three quarters of underpaid international students (73%) and backpackers (78%) know that they’re being paid less than the minimum wage. (are you not repeating the above point)

Underpayment was widespread across numerous industries but was especially prevalent in food services. The study showed 38% had their lowest paid job in cafes, restaurants and takeaway shops. This was a far greater proportion than for any other type of job. Jobs in food services also predominated as the lowest paid job among the top six nationalities of international students and backpackers.

Participants from several Asian countries had the lowest wage rates overall compared with participants from major English-speaking countries that had the highest rates. The report also stated that employers widely paid temporary migrants in cash and did not provide pay slips, especially in food services and among Chinese workers.

Co-author Laurie Berg added that wage theft is not confined to fruit and vegetable picking or convenience stores, nor is it confined to any nationalities.

International students, backpackers and other temporary migrants also experienced other indicators of exploitation and criminal forced labour with many reporting they had their passport confiscated by their employer or their accommodation provider.

“Our broken laws not only facilitate the theft of wages, they have facilitated big businesses importing what amounts to a slave labour class of workers on temporary visas,” Ged Kearney, President of the Australian Council of Trade Unions, said. “Academics Laurie Berg and Bassina Farbenblum have illuminated the experiences of temporary visa workers and we hope that the Turnbull Government will act swiftly to address these alarming revelations.”

Prices are different all over America. Regional minimums should be, too.

By Ronald Miller, J.D.

On an issue of first impression in the Ninth Circuit, the appeals court held that the relevant unit for determining minimum wage compliance under the FLSA is the workweek as a whole, not the individual hour within the workweek. In this instance, Xerox used subsidy pay to ensure that its call center employees always received the appropriate minimum wage for the workweek. Although the statutory text and context of the FLSA did not conclusively answer whether the workweek is the appropriate measure of the minimum wage, the appeals court was persuaded by the history of administrative and judicial decisions that have adopted the per-workweek approach since the passage of the Act in 1938. Accordingly, the Ninth Circuit joined its sister circuits and embraced the per-workweek measure (Douglas v. Xerox Business Services, LLC, November 15, 2017, McKown, M.).

Two customer service reps at a call center operated by Xerox filed a collective action claiming the employer’s payment plan violated the FLSA’s minimum wage and overtime provisions. Under Xerox’s complex payment plan, employees earned different rates of pay depending on the task and the time spent on that task. For certain defined activities (such as trainings and meetings), employees received a flat rate of $9.04 per hour. Time spent managing inbound calls was paid a variable rate calculated based on a matrix of qualitative controls (customer satisfaction) and efficiency (length of calls). The wage ranges from $0.15 to $0.25 per minute.

Subsidy pay. All remaining tasks have no specific designated rate. At the end of a workweek, Xerox calculates the amounts earned for defined activities and for activities paid at the variable rate and divides that total by the number of hours worked that week. If the resulting hourly wage equals or exceeds the minimum wage, Xerox does not pay the employee anything more. However, if the ratio falls below the minimum wage, Xerox gives the employee subsidy pay to bump the average hourly wage up to the minimum wage. Subsidy pay ensured that employees always receive the appropriate minimum wage for the workweek.

Averaging. The employees claimed that the FLSA measures compliance on an hour-by-hour basis and does not allow averaging over a longer period. In their view, because Xerox averaged across a workweek, it compensated above the minimum wage for some hours and below the minimum wage for others, thereby violating the FLSA. After first rejecting Xerox’s per-workweek approach, the district court, on reconsideration, held that workweek averaging was appropriate and that Xerox did not violate the FLSA. Thereafter, the matter was certified for interlocutory appeal.

Statutory interpretation. The Ninth Circuit observed that this dispute presented a pure question of statutory interpretation—whether use of the workweek as the unit of measure for gauging minimum wage compliance was permissible. Here, the Department of Labor’s longstanding per-workweek construction and the steady stream of circuit cases that have adopted that understanding persuaded the Ninth Circuit to adopt that measure.

Although the FLSA sets the minimum wage that employees must be paid each hour, it does not definitively describe the computation period or say that the only permissible measure is the hour. However, by using the phrase “in any workweek,” the text signals that something other than an hour could be a relevant measure. As a textual and contextual matter, the minimum-wage provision can bear both the per-hour and per-workweek meaning.

DOL construction. Because the traditional tools of statutory construction did not conclusively resolve the per-hour versus per-workweek question, the appeals court turned to the DOL’s interpretation—the agency “established the workweek as the measuring rod for compliance at a very early date.” Such a “longstanding administrative construction” counsels in favor of interpreting a statute to support the construction. The DOL adopted the per-workweek measure just over a year and a half after the statute was passed in 1938. Moreover, the agency’s website states in no uncertain terms that “the workweek is the basis on which determinations of compliance with the wage payment requirements of the FLSA are made.”

Moreover, courts have overwhelmingly followed the agency’s guidance. The Second, Fourth, Eighth, and D.C. Circuits have embraced the per work-week construction. No circuit has taken a contrary position. Thus, the Ninth Circuit found no reason to depart from the sound reasoning of the other circuits.

Observing that businesses subject to the FLSA often operate in multiple jurisdictions, and could reasonably rely on administrative and judicial guidance in structuring their payment schemes, the Ninth Circuit concluded that it would be burdensome and impractical to upset those practices by imposing different requirements in different jurisdictions. Thus, the appeals court ruled in favor of consistency. Additionally, adoption of the per-workweek approach was also reinforced by the fact that Congress has done nothing to overturn or disapprove of this clearly articulated position. Accordingly, under the workweek standard, Xerox complied with the minimum wage provisions.

“Rare indeed is the employer that is unaware most employees must be paid at least an hourly wage that does not fall below a minimum rate set by law. Equally rare is the employer that, cognizant of this mandate, deliberately flouts it. More commonly, employers faced with the complexities of the state and federal laws governing wage payment commit inadvertent technical violations of the statute,” the attorneys of Jackson Lewis write in the Fall 2017 edition of the Jackson Lewis Class Action Trends Report.

In the second in a series of Trends reports focused on wage-and-hour class claims, attorneys in the firm’s Class Action and Complex Litigation Practice Group discuss those complexities, and offer guidance for avoiding common minimum wage “traps.”

As practice group Co-Leaders Will Anthony and Stephanie Adler-Paindiris note: “Knowledge and proactive compliance can spring these traps before your business becomes embroiled in a lawsuit or Department of Labor action.”

Check out our latest collaboration with Jackson Lewis.

“Rare indeed is the employer that is unaware most employees must be paid at least an hourly wage that does not fall below a minimum rate set by law. Equally rare is the employer that, cognizant of this mandate, deliberately flouts it. More commonly, employers faced with the complexities of the state and federal laws governing wage payment commit inadvertent technical violations of the statute,” the attorneys of Jackson Lewis write in the Fall 2017 edition of the Jackson Lewis Class Action Trends Report.

In the second in a series of Trends reports focused on wage-and-hour class claims, attorneys in the firm’s Class Action and Complex Litigation Practice Group discuss those complexities, and offer guidance for avoiding common minimum wage “traps.”

As practice group Co-Leaders Will Anthony and Stephanie Adler-Paindiris note: “Knowledge and proactive compliance can spring these traps before your business becomes embroiled in a lawsuit or Department of Labor action.”

Check out our latest collaboration with  Jackson Lewis.