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Total Articles: 31

Limousine Service Employee Was Properly Classified as Exempt, Second Circuit Holds

Upholding a jury verdict in favor of the defendant “black car” (limousine service) company, the U.S. Court of Appeals for the Second Circuit concluded that the plaintiff-employee was properly classified as overtime-exempt under both the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL). Suarez v. Big Apple Car, Inc., 2020 U.S. App. LEXIS 8683 (2d Cir. Mar. 17, 2020). The Second Circuit has jurisdiction over the federal courts in New York, Connecticut, and Vermont.

DOL Opinion Letter Applies the Highly Compensated Employee Exemption to Paralegals

Ultimately, the WHD concluded that the paralegals described in the July 2019 opinion letter qualified as exempt under the highly compensated employee exemption even if they did not exercise discretion and independent judgment with respect to matters of significance.

Fifth Circuit Weighs in on Motor Carrier Act Overtime Exemption and Small Vehicle Exception

It is commonly understood that employees bear the burden of proving that they are covered by the Fair Labor Standards Act (FLSA), and, to avoid minimum wage or overtime obligations, the employer bears the burden of proving that an exemption to the FLSA applies. One such exemption – common in the transport and energy industries – is the exemption under the federal Motor Carrier Act (MCA). If an employer can demonstrate that workers are covered by the MCA exemption,1 then the FLSA’s overtime requirements will not apply to those workers—with one major caveat.

Toll Road Ahead: Fourth Circuit Rules Mixed-Fleet Interstate Truck Drivers May Be Entitled to Overtime Pay

Despite the overtime exemption provided by the Motor Carrier Act, interstate trucking employers who operate “mixed fleets” – those with vehicles both over and under 10,000 pounds – may owe overtime pay to drivers of the smaller vehicles, the Fourth Circuit Court of Appeals recently ruled. Schilling v. Schmidt Baking Co., 2017 U.S. App. LEXIS 23257 (4th Cir. Nov. 17, 2017). The Fourth Circuit has jurisdiction over Maryland, North Carolina, South Carolina, Virginia and West Virginia.

Travel Agencies Hail Proposed Legislation Providing Overtime Exemption, But Employment Bills in General Face Uphill Battle

Last week Rep. Francis Rooney (R-FL) introduced a bill that would remove travel agents from the Department of Labor's list of workers that cannot qualify for the Fair Labor Standards Act's (FLSA) overtime exemption for retail workers. Under the exemption at issue, an employee must work at an establishment “recognized as retail." In 1970, the DOL created a list of industries—including travel agents—that were expressly excluded from using this retail service establishment exemption. The Travel Agent Retail Fairness Act (H.R. 2515) would strike travel agencies from this regulatory list.

Residence Hall Directors Under The New FLSA Exemption Rules

One of the issues that colleges and universities are struggling with under the new FLSA overtime exemption rules is how to compensate residence hall directors. While responsibilities vary from institution to institution, residence hall directors generally are responsible for overseeing students living in a college or university residence hall.

Coaches and Athletic Trainers Under the New FLSA Rules

As schools seek to adjust to the new Department of Labor overtime exemption rules and increased salary standards, nearly every institution has classification and overtime-calculation questions about athletic coaches and athletic trainer positions. The NCAA (in conjunction with CUPA-HR) has now issued a helpful paper addressing exemption analysis and practical considerations applicable to these roles that can be found here.

ESL Teachers At Private Learning Center FLSA “Teachers” Exempt from Overtime

Earlier this week, in a matter of first impression within the Second Circuit, Judge P. Kevin Castel of the Southern District of New York held that employees who teach English as a second language (“ESL”) at a privately-owned ESL learning center qualify for the professional exemption under the FLSA as “teachers.” Fernandez v. Zoni Language Ctrs., 2016 U.S. Dist. LEXIS 65310 (S.D.N.Y. 2016).

Friendly Reminder: The Computer Employee Exemption

We recently received a question regarding whether an employer could classify certain IT employees as exempt under the Computer Employee exemption. With the long-awaited final DOL overtime rules for the white collar exemptions yet to make their appearance, we thought this would be a good opportunity to switch gears and remind you of the general requirements for meeting the Computer Employee exemption.

Federal Court Finds Intrastate Travel Part of “Stream of Commerce,” Applies Motor Carrier Exemption to Truck Driver

Although applicability of the Motor Carrier Act (MCA) exemption from overtime is predicated on “interstate commerce,” interstate commerce can include wholly intrastate travel by a covered employee when shipped in a “practical continuity of movement” across state lines. A new opinion highlights this doctrine. Kennedy v. Equity Transp. Co., 2015 U.S. Dist. LEXIS 143565 (N.D.N.Y Oct. 22, 2015).

Third Circuit Upholds the Motor Carrier Exemption for Drivers Who Did Not, But Reasonably Could Have Been Expected to, Cross State Lines

Are drivers of a motor carrier who rarely or never drive the carrier's interstate routes covered by the motor carrier exemption of the Fair Labor Standards Act? Yes, according to the U.S. Court of Appeals for the Third Circuit in Resch v. Krapf's Coaches, Inc., Case No. 14-3679 (3d Cir. May 12, 2015).

Oil Field Employers Post-McMaster: Still Searching for Clarity on the TCA’s Impact on the Motor Carrier Act Exemption

In McMaster v. Eastern Armored Services, Inc., No. 14-1010 (March 11, 2015), the Third Circuit Court of Appeals issued one of the first federal appellate court opinions discussing the SAFETEA-LU Technical Corrections Act of 2008 (TCA). The TCA is an uncodified amendment to the Fair Labor Standards Act of 1938 (FLSA) that, according to the Third Circuit, creates a “carveout” from the Motor Carrier Act Exemption (MCAE). Under the MCAE, professional motor carriers are generally exempt from the overtime requirements of the FLSA. The Third Circuit explained that the TCA “waives the exemption for motor carrier employees who, in whole or in part, drive vehicles weighing less than 10,000 pounds.”

Tech Support - The FLSA's Specialized Exemption

The Fair Labor Standards Act (FLSA) provides several exemptions from overtime requirements for employees whose job duties meet specific tests. Most employers are familiar with the standard “white- collar” exemptions – including the “executive” and “administrative” exemptions – and the job duties and “salary basis” tests required to satisfy those exemptions.

Major Changes To Home Companionship Exemption Announced

On September 17, the U.S. Labor Department (DOL) announced that is will be issuing a final rule that will bring significant changes to the “companionship” exemption in the federal Fair Labor Standards Act’s Section 13(a)(15). The final rule is scheduled to be published in the Federal Register in October and will become effective January 2015. Although the Final Rule is not yet available, the DOL issued a press release and “fact sheets” purporting to summarize the changes.

Seventh Circuit Exempts Interstate School Bus Drivers From FLSA Overtime Requirements

Last month, in Almy v. Kickert School Bus Line, Inc., No. 13-1273 (July 16, 2013), the Seventh Circuit Court of Appeals joined the Second, Third, Ninth, and Eleventh Circuits,in finding that school bus drivers who transport students across state lines fall within the “motor-carrier exemption” to the Fair Labor Standards Act (FLSA), and are thus ineligible for overtime pay.

Eighth Circuit Holds Gross Vehicle Weight Rating Determines FLSA Motor Carrier Exemption

The Eighth Circuit Court of Appeals recently held that an employee who drives a motor vehicle that has a gross vehicle weight rating (GVWR) of more than 10,000 pounds falls within the “motor carrier exemption” of the Fair Labor Standards Act (FLSA). According to the Eighth Circuit, which issued the decision in McCall v. Disabled American Veterans, et al. on July 31, 2013, an employee falls within the exemption regardless of the actual weight of the vehicle when he or she is driving it.

What Do You Mean I Have To Pay My Nanny Overtime?!

As a working mom, I am lucky to have a husband who is a stay-at-home parent. Rarely do I have to worry about being late to work because I have to drop my child off at school, or leaving work early to take my child to an after-school activity or doctor’s appointment.

Pharmaceutical Sales Representatives Found to be Exempt by Seventh Circuit

The Seventh Circuit recently weighed in on whether pharmaceutical sales representatives are exempt under the FLSA in Susan Schaeffer-LaRose v. Eli Lilly & Company.

Proponents "Can't Wait" For Demise of Companionship, Live-In Domestic Exemptions

The U.S. Labor Department has extended the time for commenting upon the proposed provisions that would essentially spell the end of the federal Fair Labor Standards Act exemptions for companions and live-in domestic-service workers. The new deadline is March 12, 2012.

Bill Would Broaden FLSA Computer Exemption

A bill introduced in the U.S. Senate (S. 1747) would significantly expand the scope of the current exemption for certain computer employees that is found at Section 13(a)(17) of the federal Fair Labor Standards Act. The proposed "Computer Professional Update" Act (or "CPU" Act) was submitted by North Carolina Senator Kay Hagan and three co-sponsors. It is now pending in the Senate's Committee on Health, Education, Labor, and Pensions.

Are Pharmaceutical Sales Reps Exempt As "Outside Salesmen?" Diagnosis Unclear

Just last August, the U.S. Court of Appeals for the 2nd Circuit issued a ruling that sent shock waves through segments of the healthcare industry. Then, as affected employers began responding to that decision, the 9th Circuit reached an apparently contradictory decision that may have raised more questions than it answered.

What Do You Mean the Job May No Longer Be Considered Exempt?

My last blog entry on travel time only touched on one issue that may arise as we see more employees being asked to take on additional responsibilities and assignments in lieu of hiring new personnel. Indeed, consolidation of jobs or responsibilities can lead to a number of other potential wage and hour issues that can have a significant impact on employers. One such issue arises when an exempt employee takes on additional jobs or duties that are non-exempt. How should an employee be treated for overtime purposes if working both exempt and non-exempt positions?

Court: Cable Installers Employees, Not Independent Contractors

A couple of weeks ago, I wrote about an initiative by the U.S. Department of Labor, IRS and various state agencies to launch a coordinated crack-down on employers who misclassify employees as independent contractors. Recently, a U.S. District Court in Ohio issued a ruling that nicely illustrates the problem of misclassifcation and the potential liabilities that employers can face as a result.

The FLSA Overtime Exemption For Service Writers

Last week, the U.S. Department of Labor published a Final Rule concerning changes to its regulations and interpretations. One portion of the Final Rule's commentary appears to say that the DOL is now taking the position that employees doing the typical work of service writers/service advisors/service salespeople (we'll refer to them all as "service writers") are NOT exempt from overtime under the federal Fair Labor Standards Act.

Michigan Jury Finds Mortgage Loan Officers Exempt, Disregarding the Department of Labor’s Interpretive Guidance

On March 17, 2011, a Michigan jury returned a verdict in favor of loan company, Quicken Loans Inc., in a federal class action wage and hour lawsuit. The jury found that the company’s loan officers were properly classified as exempt employees under the Fair Labor Standards Act (FLSA), and as a result, the company did not owe the plaintiffs any overtime.

USWHD Memo Addresses FLSA "Motor Carrier" Exemption.

The federal Fair Labor Standards Act's Section 13(b)(1) provides an overtime exemption for "any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to" a specific section in Title 49 of the U.S. Code dealing with federal motor-carrier law. Employers who have relied upon or followed this so-called "motor-carrier" exemption will remember that an inconspicuous 2005 amendment to Title 49 substantially narrowed its scope. A further revision in 2008 introduced yet other questions and uncertainties.

Pharmaceutical Sales Reps Join White-Collar Quest for Overtime Pay (pdf).

Pharmaceutical sales representatives, historically viewed as exempt from federal wage and hour law requiring overtime compensation, are joining the ranks of highly compensated white-collar workers seeking overtime pay, attorneys Staci Ketay Rotman and Mark S. Wilkinson write in this BNA Insights article. A number of large companies are targets of sales reps’ overtime class actions, the attorneys, of Franczek Radelet in Chicago, write.

Second Circuit Strips Pharmaceutical Sales Reps Of Their Exempt Status.

A federal appellate court recently held that pharmaceutical sales representatives did not fall under either the "outside sales" or "administrative" exemptions to the Fair Labor Standards Act (FLSA), and that, accordingly, they had been misclassified and are entitled to unpaid overtime. The overtime to which the workers could be entitled is significant, because they typically work 12-hour days, travel for their jobs, and attend after-hours events as part of their marketing efforts. In re Novartis Wage and Hour Litigation, 09-0437-cv, Second Circuit Court of Appeals (July 6, 2010

Congress Amends Motor Carrier Exemption: Both Helps and Hurts Employers.

Recent legislation appears to have narrowed the scope of the federal Fair Labor Standards Act's "motor carrier" overtime exemption yet again. The "SAFETEA-LU Technical Corrections Act of 2008" (TCA) further restricts the classes of employees who might qualify for that exemption. A moderate positive is that TCA also limits liability with respect to certain overtime violations occurring before August 10, 2006 that resulted from exemption changes caused by the earlier "Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users" (SAFETEA-LU).

Misclassifying A Chef Can Cook Up Trouble.

The number of wage-hour claims has skyrocketed in recent years. As a result, a hospitality employers are more likely than ever before to be the target of a wage-hour lawsuit or a government compliance audit. One thing this means is that industry employers should be sure they have correctly classified everyone they treat as being exempt from the federal Fair Labor Standards Act’s minimum-wage, overtime, and timekeeping requirements.

Update: DOL To Begin Enforcing Narrowed Motor-Carrier Exemption.

We previously reported that under-the-radar Congressional action in 2005 substantially limited the federal Fair Labor Standards Act's Section 13(b)(1) "motor carrier" overtime exemption. This exemption applies to drivers, driver's helpers, loaders, and mechanics for whom the U.S. Transportation Secretary can set qualifications and maximum service hours.
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