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Total Articles: 10

Ninety Seconds Is Not Enough: Third Circuit Rules That Break Policy Violates the FLSA

In Secretary United States Department of Labor v. American Future Systems, Inc., No. 16-2685 (October 13, 2017), the Third Circuit Court of Appeals considered whether an employer’s failure to compensate employees for periods of 20 minutes or less time when they were relieved of all work-related duties violated the Fair Labor Standards Act (FLSA). The Third Circuit held that the FLSA requires employers to compensate employees for breaks of 20 minutes or less, and rejected the employer’s contention that under the employer’s “flexible time” policy, such non-work periods did not constitute breaks within the meaning of the law.

Intern or Employee? When “Take Your Children to Work” Day Backfires

In late April each year, tens of millions of employees and millions of employers participate in Take Your Sons and Daughters to Work Day

Wage and Hour Dilemmas for Construction Industry Employers

Littler’s Russ McEwan and Lindsay Sorin discuss some of the most common wage and hour issues that our construction industry clients face, and offers practical solutions to minimize risk.

WPI Wage Watch: Minimum Wage and Overtime Updates (September Edition)

September may mean saying goodbye to summer, but minimum wage and overtime developments across the country are still going strong. A nominee to lead federal wage and hour enforcement efforts has been put forward, labor agencies are beginning to announce their adjusted minimum wage rates for 2018, and state and local legislatures are looking to expand existing laws.

Service Adviser Exemption Goes Back to the Supreme Court

On September 28, 2017, the U.S. Supreme Court agreed to hear a case in which the Court will be asked to decide whether the FLSA’s overtime exemption covering “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles.” The case is Encino Motorcars v. Navarro, No. 16-1362.

Supreme Court Grants Certiorari (Again) to Address Circuit Split on FLSA Automobile Dealer Exemption

After effectively “punting” on the issue last year, the U.S. Supreme Court has again granted certiorari to resolve a circuit split regarding whether “service advisors” at automobile dealerships are exempt from receiving overtime under an exemption for “salesmen, partsmen, and mechanics” under the FLSA. Encino Motorcars, LLC v. Navarro, No. 16-1362 (U.S. Sep. 28, 2017).

Do Customer Tips Belong the Employee or Employer?

When a customer leaves a tip for a server, who receives the full amount of the tip at the end of the day? According to a 2011 Department of Labor (DOL) regulation, the tip always belongs to the server, even if the employer pays the server minimum wage. However, a recent DOL announcement in late July has put this issue back on the table and may resolve a conflict between courts across the country as to tip practices within the hospitality industry. The 2011 regulation states that tips are the property of the employee regardless of whether the employer pays the employee minimum wage and claims a tip credit. Now, DOL is rescinding this regulation, which will allow employers more flexibility in their tip pooling practices.

"I'm Not Paying For That": Update On Using Timekeeping Policies To Defend Off-The-Clock Claims

We have recently focused upon the growing number of federal court decisions under the federal Fair Labor Standards Act that have given legal weight to carefully-crafted, well-maintained employer policies requiring employees to report all of their worktime. Several such courts have relied upon the principle that workers can recover FLSA-required wages for alleged off-the-clock work only if the employer had actual or constructive knowledge of the work.

Ninth Circuit Rejects DOL's Interpretation of the "Dual Jobs" Regulation for Tipped Employees

On September 6, 2017, the Ninth Circuit Court of Appeals declined to accord deference to the U.S. Department of Labor's (DOL) interpretation of its "dual jobs" regulation. The court reasoned that the interpretation, as articulated in the DOL's Field Operations Handbook (FOH), was inconsistent with the dual jobs regulation and attempted to create a de facto new regulation. The appellate court rejected the FOH's requirement that employers evaluate employee work on a duty-by-duty and minute-by-minute basis to determine whether an employer may take a tip credit for specific time worked. The court favored the DOL's earlier guidance on the regulation, which instructed employers to look for a "clear dividing line" to distinguish between when an employee is engaged in a customarily tipped occupation versus a second and separate non-tipped occupation.

Does Paying Time and a Half For Certain Work Count Toward Overtime? [Wage & Hour FAQ]

Q. Our organization has a policy of paying employees who perform certain kinds of work outside of regular business hours at 1-1/2 times their regular hourly rates. Do we have to pay additional overtime pay for these hours?