Suit Targets Overtime at Cemex - Law Firm Shellist & Lazarz, Ltd, LLP Attorneys Houston, Texas

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Suit Targets Overtime at Cemex

Labor Department says company didn't follow the rules in paying drivers

September 25, 2008, 9:39PM

L.M.Sixel
Eugene Hoshiko AP

U.S. Secretary of Labor Elaine Chao.

The Labor Department is suing Cemex, accusing it of failing to properly pay overtime wages to about 2,000 ready mix drivers who work in eight states, including Texas.

The suit, filed earlier this month in Houston federal court, estimates that the cement company owes more than $5 million in back wages to its drivers. Cemex is a Mexican company whose U.S. operations are based in Houston.

3-year investigation

The suit followed an investigation by the Labor Department covering the three-year period from September 2005 to September 2008. It estimates 255 Texans have back wages coming to them, according to a list of workers attached to the lawsuit.

"Cemex is in compliance with the Fair Labor Standards Act," according to a statement released by the company Thursday. "We had been working with the Department of Labor regarding some disputed issues related to the pay by load program that the company had in place prior to 2007.

"Although the company has not admitted liability, we thought we had reached an agreement with the DOL," according to the statement. "We are disappointed that the DOL has thrown out the agreement and decided to go this avenue."

The Labor Department contends Cemex paid its drivers a "piece rate" based on the amount of work they did as well as an incentive bonus when they worked more than 40 hours a week.

However, those extra payments were not included in the calculation of overtime pay, which is required under federal law, according to the lawsuit.

It's a common overtime violation because many employers don't understand they have to calculate overtime pay based on commissions and bonuses as well as any regular base wages, said Martin Shellist, a lawyer who handles wage and hour disputes for both workers and companies at Shellist Lazarz LLP in Houston.

Few such claims filed

The fact that the government is looking for three years' worth of back wages probably indicates the agency put Cemex on notice that it was improperly calculating overtime pay, said Shellist, who is not involved in the case.

Typically, back wages only go back two years unless the worker can prove the damages are knowing or willful, he said. Also, judges can award liquidated damages by doubling the back wages, something the Labor Department is asking in the Cemex case.

The Labor Department doesn't file many wage and hour claims because most of them are settled administratively, he said.

Most of the disputes are fairly clear-cut.

"It is a top priority of this department to ensure that workers receive all the wages they have earned and we have recovered record amounts of back wages for workers since 2001," according to a statement from Secretary of Labor Elaine Chao.

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Shellist | Lazarz | Slobin is not affiliated with the Equal Employment Opportunity Commission. Please click on the link to contact the EEOC.

The law firm of Shellist | Lazarz | Slobin in Houston, Texas specializes in employment law. We have a nation-wide practice that represents employers and employees across the United States and throughout Texas including Dallas, Fort Worth, San Antonio, Austin, Galveston, Pasadena, Bellaire, Arcola, Baytown, Port Arthur, College Station, Brownsville, Beaumont, Orange, Vidor and McAllen.

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