Total Articles: 240
Littler Mendelson, P.C. • May 19, 2020
Does an employer’s business qualify as a “retail or service establishment” for the purpose of satisfying the exemption requirements of section 207(i) of the federal Fair Labor Standards Act? The answer to this question might have just changed based on the Department of Labor’s (DOL) recent regulatory action.
Littler Mendelson, P.C. • March 10, 2020
The spread of the novel coronavirus and associated outbreak of the COVID-19 disease raise challenging questions for employers. This article will describe some of the U.S. wage and hour implications resulting from employers’ measures addressing the COVID-19 outbreak, including compensation for employees who are quarantined or furloughed, business expense reimbursement, reporting time pay, and predictive scheduling laws. Littler’s additional COVID-19 resources can be found here.
Jackson Lewis P.C. • March 10, 2020
A Minnesota federal district court recently denied FLSA conditional certification over the claims of workers who were not assigned to a Minnesota project at issue or not Minnesota residents due to specific jurisdiction considerations. Vallone et al. v. The CJS Solutions Group, LLC, No. 19-1532 (D. Minn. Feb. 5, 2020).
Jackson Lewis P.C. • February 25, 2020
Federal and state laws regulating the payment of wages continue to develop at a rapid pace. States continue to increase their minimum wage, despite the federal minimum wage remaining stagnant at $7.25 per hour since 2009.
Ogletree Deakins • February 18, 2020
In a 29-page decision, the U.S. Court of Appeals for the Second Circuit held in Fisher v. SD Protection Inc., No. 18-2504, that a district court had abused its discretion by rewriting a Fair Labor Standards Act (FLSA) settlement agreement to modify the allotment of the settlement funds to dramatically reduce the fees and costs provided to plaintiff’s counsel. In its holding, issued on February 4, 2020, the court determined that the district court had committed three errors requiring that its decision be vacated and remanded for further consideration.
Littler Mendelson, P.C. • February 12, 2020
On January 24, 2020, the Seventh Circuit Court of Appeals became the second federal appellate court to address whether notice of a collective action under the Fair Labor Standards Act (FLSA) may be sent to individuals who allegedly entered into mutual arbitration agreements waiving their right to join the action. Following last year’s Fifth Circuit decision in In re JPMorgan Chase & Co., No. 18-20825 (5th Cir.), the Seventh Circuit’s decision in Bigger v. Facebook, Inc., No. 19-1944 (7th Cir.) highlights the growing trend of courts placing some limitations on the issuance of notice to individuals who have executed enforceable arbitration agreements with class or collective action waivers. This issue remains unsettled outside of courts in the Fifth or Seventh Circuits, however.
Littler Mendelson, P.C. • February 12, 2020
In a significant victory for employers and the principles of due process, the District of Minnesota recently joined several other federal courts around the country in holding that only workers with a connection to the forum state may join a collective action under the Fair Labor Standards Act (FLSA).
Littler Mendelson, P.C. • January 13, 2020
On January 13, 2020, the U.S. Department of Labor (DOL) released its long-awaited final rule regarding joint-employer status under the Fair Labor Standards Act (FLSA). The final rule is scheduled to be published in the Federal Register on January 16, 2020, and will become effective 60 days from its publication date.
Fisher Phillips • January 13, 2020
In a much-anticipated decision, a federal appeals court just ruled that Fair Labor Standards Act (FLSA) claims resolved through Rule 68(a) offers of judgment do not require fairness review and judicial approval. The 2nd Circuit Court of Appeals’ December 6, 2019 decision is a critical ruling for employers seeking to resolve lawsuits filed under federal wage and hour law, providing a much clearer path for resolution (Yu v. Hasaki Restaurant, Inc).
Jackson Lewis P.C. • December 24, 2019
Wage and hour lawsuits are big news these days. Jury verdicts and settlements capture headlines warning of damages and fees totaling seven or more figures, and class certifications in pending cases exponentially expand the risk posed by a single miscalculation or mistaken designation. How can employers best reduce the risk of becoming the next cautionary tale in wage and hour compliance?
FordHarrison LLP • December 22, 2019
Executive Summary: On December 6, 2019, a sharply divided panel of the Second Circuit (covering New York, Connecticut, and Vermont) ruled that judicial approval of Fair Labor Standard Act (FLSA) settlements resolved under Federal Rule of Civil Procedure 68’s offer of judgment mechanism is not required. In the Second Circuit, FLSA settlements typically require judicial approval for fairness under a 2015 Second Circuit decision called Cheeks v. Freeport Pancake House. However, the Second Circuit held that where FLSA plaintiffs resolve their disputes with employers by accepting an offer of judgment, judicial approval, in that narrow instance, is not required under Cheeks.
Jackson Lewis P.C. • December 03, 2019
The U.S. District Court for the Eastern District of New York recently rejected the government’s argument that statements from non-testifying witnesses collected during a wage and hour investigation were protected under the government-informant privilege. Secretary of Labor v. Yianna Food Corp. d/b/a Williston Town House Diners, et al., E.D.N.Y. Case No. 17-CV-6974.
FordHarrison LLP • November 11, 2019
Executive Summary: On November 5, 2019, a federal district court in Ohio issued a decision clarifying the law governing whether owners of 73 Papa John’s franchised locations violated the Fair Labor Standards Act (FLSA) by failing to adequately reimburse their delivery drivers for expenses incurred in using their own vehicles to complete deliveries. In deferring to the Department of Labor (DOL) Field Operations Handbook, the court held that where employees are paid at or close to minimum wage and they use their own vehicles to make deliveries, the proper measure of minimum wage compliance for pizza delivery drivers is to either (1) track and pay delivery drivers’ actual expenses incurred or (2) pay the mileage reimbursement rate set by the Internal Revenue Service (IRS). See Hatmaker v. PJ Ohio, LLC, 2019 U.S. Dist. LEXIS 191790 (S.D. Ohio Nov. 5, 2019).
Littler Mendelson, P.C. • August 01, 2019
While most parts of the country were heating up in July, developments concerning the minimum wage, tips, and overtime were cooling off. Many state legislatures have adjourned or are in recess, leaving it mainly to federal and local officials to keep things interesting.
Jackson Lewis P.C. • July 24, 2019
In a welcome reversal of its prior guidance, on July 22, 2019, the U.S. Department of Labor (DOL) concluded that if a truck driver, or driver’s assistant or helper, is completely relieved of duty and is provided with adequate sleeping facilities (including the truck’s sleeping berth), the individual is not “working while riding” and therefore is not entitled to compensation for that time – regardless of how many hours a particular trip lasts or how much duty-free time is provided on that trip.
Fisher Phillips • June 10, 2019
By a unanimous 9-0 decision, the U.S. Supreme Court today declined to extend California’s wage-and-hour laws to employees working on offshore drilling platforms subject to the Outer Continental Shelf Lands Act (Parker Drilling Management Services Ltd. v. Newton). Although this decision represents a victory for the employer involved in the dispute, you should check with your legal counsel to ensure you are in compliance with the correct legal standard given the nuanced nature of this ruling.
Littler Mendelson, P.C. • June 04, 2019
This month, we provide a rates-only update detailing state- and local-level minimum wage (and exempt employee pay) increases scheduled to occur on July 1, 2019, plus other developments concerning the minimum wage, tips, and overtime that occurred in May.
Jackson Lewis P.C. • May 02, 2019
The Department of Labor’s (DOL) Opinion Letter FLSA2019-6 issued April 29, 2019, was welcomed by virtual marketplace companies (VMCs) in particular, as well as traditional businesses that treat freelancers as independent contractors. At a minimum, this letter gives the business community insight on how the DOL regards the VMC business model.
Jackson Lewis P.C. • April 03, 2019
Since 1939, regulations interpreting the Fair Labor Standards Act (FLSA) have recognized that two or more “employers” can be jointly and severally liable for a single employee’s hours worked under the Act. However, the U.S. Department of Labor (DOL) has not meaningfully updated its joint employer regulation in more than 60 years. That soon may change. On April 1, the DOL issued a Notice of Proposed Rulemaking (NPRM) to update its interpretation of the standard for establishing joint-employer liability under the FLSA.
Fisher Phillips • March 28, 2019
The USDOL has proposed to update guidance (for the most part not regulations), regarding the "regular rate" for purposes of calculating FLSA overtime pay. The NPRM is intended to update and clarify the FLSA’s requirements regarding the "regular rate" and the (rarely used) alternative "basic rate" as briefly summarized below.
Jackson Lewis P.C. • March 19, 2019
A prime or general contractor may be held jointly and severally liable for any violations, including wage and hour violations, by its subcontractors if the contractor is found to be a joint employer with the subcontractor under applicable federal or state law.
Ogletree Deakins • March 14, 2019
On March 14, 2019, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) issued two new opinion letters addressing compliance under the Fair Labor Standards Act (FLSA). The first opinion letter addresses wage and recordkeeping requirements for residential janitors. The second opinion letter addresses the compensability of time spent by employees participating in an employer-sponsored community service program. This opinion letter (FLSA 2019-2) addresses whether time spent by an employee participating in an employer’s voluntary charitable program constitutes hours worked under the FLSA.
Jackson Lewis P.C. • March 03, 2019
Healthcare employers can expect the rise of class action lawsuits to continue, as 2019 has seen a steady influx of class actions against healthcare employers under the Fair Labor Standards Act (FLSA) and various state wage-and-hour counterparts.
Ogletree Deakins • February 21, 2019
In March 2010, as part of the passage of the Affordable Care Act, the Fair Labor Standards Act (FLSA) was amended to require most employers to provide nonexempt employees:
Jackson Lewis P.C. • February 18, 2019
First introduced in Congress in 1997, and several times since, the Paycheck Fairness Act is again under consideration by Congress (S. 270/H.R. 7).
Littler Mendelson, P.C. • February 01, 2019
2019 marks the start of Wage Watch’s third year of publication, which we will celebrate the only way we (sadly) know how: by recapping federal, state, and local developments concerning the minimum wage, tips, and overtime.
Franczek Radelet P.C • January 30, 2019
No, seriously, it’s actually dangerous here in Chicago. Since much of the city seems to be on lock-down today as we all try not to freeze to death, this seems like a good time to review the rules relating to employee pay during weather-related shut-downs.
Jackson Lewis P.C. • January 26, 2019
The law regulating the payment of wages and work hours is a vibrant area: the “fight for $15.00”; battles over who can receive tips (and whether the tip credit should be eliminated entirely); whether workers should be given additional pay when employers cancel shifts and fail to provide “predictive schedules”; and what should happen to that pesky overtime rule. These are just some of the hot button issues addressed in 2018. As 2019 begins, we take a look back at notable wage and hour developments on the federal and state level in 2018.
Fisher Phillips • January 26, 2019
This week the U.S. Department of Labor published increases in the civil money penalties (CMPs) it can impose for certain violations of the federal Fair Labor Standards Act. These new levels apply to any penalties assessed after the effective date of January 23, 2019, including with respect to predicate violations that already have occurred.
Fisher Phillips • January 10, 2019
The next shot has been fired in the long-running misclassification dispute between plaintiff Raef Lawson and gig economy giant Grubhub, as the company filed its Answering Brief with the 9th Circuit Court of Appeals late last night. As regular readers of this blog know, Lawson and Grubhub squared off in the nation’s first-ever gig economy misclassification trial in late 2017, leading to a victory for Grubhub in February 2018. Things took a turn for the worse in April 2018 when the California Supreme Court dropped a bombshell and changed the misclassification standard with its infamous Dynamex decision, which ushered in the notorious ABC test, and Lawson’s attorneys quickly pounced and argued that he should now be declared the victor given the new standard. Lawson filed an appeal with the 9th Circuit Court of Appeals and filed his opening brief in November 2018. Now, it’s Grubhub’s turn.
Jackson Lewis P.C. • December 18, 2018
As the result of an investigation by the U.S. Department of Labor’s Wage and Hour Division (WHD), a hospital in Arizona was recently ordered to comply with the Fair Labor Standards Act (FLSA) requirement that employers must provide nursing mothers adequate time and space to express breast milk. The WHD announced on December 11 that it entered into a compliance agreement with Yuma Regional Medical Center requiring the employer to provide training to all supervisors, and to provide all employees returning from maternity leave with information about their right to express milk in the workplace. The investigation revealed that the hospital previously denied requests for breaks from nursing employees and failed to provide a private location in which to express breast milk in violation of the FLSA.
Ogletree Deakins • December 12, 2018
With winter on the way, it is a good time for employers to review the relevant wage and hour laws that can be triggered by inclement weather. Likewise, it is also a good time for employers to ensure their policies comply with these laws when weather causes a temporary workplace interruption.
Fisher Phillips • November 30, 2018
If you have ever had to defend against a lawsuit under the FLSA, you probably know that attorney’s fees awards often far exceed the value of your employee’s claims. This is especially true in collective action cases, which often involve extensive litigation resulting in a higher fee award. Unlike the general presumption in the United States that each party to a lawsuit pays its own attorney’s fees, the FLSA provides for a mandatory award of attorney’s fees to an employee who prevails on his or her claim. This mandatory fee-shifting provision sometimes results in employers deciding to settle a case early in the litigation to avoid increased fees in the event of a judgment in favor of the employee.
Goldberg Segalla LLP • November 16, 2018
The U.S. Department of Labor (DOL) announced that it has issued four new opinion letters. DOL opinion letters are designed to interpret and provide clarity to federal labor laws, and these four new letters target issues under the Fair Labor Standards Act (FLSA).
Littler Mendelson, P.C. • November 01, 2018
If you procrastinated on finding a costume for the office Halloween party, never fear—just put "hipster" or "zombie" before any person, profession, or thing, and you're set. After indulging in too much sugar and embarrassing group photos, relax and unwind with our always cool and very much alive update on minimum wage, tip, and overtime developments.
Littler Mendelson, P.C. • October 03, 2018
The past month was full of minimum wage, tip, and overtime activity: amendments; annual rate adjustments; ballot measure battles; legal challenges; and new bills. It was a September to remember.
Nexsen Pruet • September 13, 2018
With Hurricane Florence threatening the Carolinas, this is a good time for employers to review their inclement weather policies and to make sure they properly compensate employees who miss work because of adverse weather.
Jackson Lewis P.C. • September 05, 2018
In furtherance of a practice reinstituted earlier this year, on August 28, 2018 the DOL’s Wage Hour Division (WHD) issued four new opinion letters covering FLSA topics. The current administration began that practice when, in January of this year, it reinstated seventeen opinion letters originally issued during the George W. Bush administration but subsequently withdrawn during the Obama administration. The WHD then issued three new letters in April, prior to last week’s issuance. “Opinion letters help provide greater clarity for American job creators and employees,” commented Acting Wage and Hour Division Administrator Bryan Jarrett, and “show the ongoing efforts of the Department to provide the tools employers need to comply with the law and protect workers.”
Fisher Phillips • July 23, 2018
Although the document itself is fairly dense and complex, specifically focusing on the home-care registry industry, the Labor Department’s latest field assistance bulletin could provide a helpful clue to gig economy companies about how the agency could regulate the concept of misclassification on a broader scale. The July 13 document tilts the scales back towards an even playing field, which should be music to the ears of gig economy businesses across the country.
Fisher Phillips • July 18, 2018
It's that time of year when families (yes, already) are making back-to-school preparations for the upcoming school year, and employers (ideally, already) are evaluating potential pay and policy changes for the upcoming calendar year. For a student who is a little rusty, this is the time to cram with one of those summer workbooks. For an employer that is a little rusty, cramming the FLSA's numerous nuances is just not possible. Nonetheless, when tackling a complex FLSA issue, oftentimes the best approach is to get back to the basics.
Ogletree Deakins • July 04, 2018
As the Fair Labor Standards Act (FLSA) turns 80, it presents a timely opportunity to acknowledge its impact and call for its modernization. Signed into law on June 25, 1938, the FLSA was part of the New Deal championed by President Franklin D. Roosevelt and Secretary of Labor Frances Perkins, among many others. The law, which took effect on October 24, 1938, established a federal minimum wage of 25 cents per hour, provided for a maximum workweek of 44 hours before overtime pay was required, and prohibited oppressive child labor. This initial legislation called for reducing the workweek by two hours per week over the following two years to 40 hours before overtime pay was due. It also increased the federal minimum wage from 25 cents per hour to 40 cents per hour through annual increases over a three-year period.
Ogletree Deakins • June 28, 2018
Since its passage in 1938, the Fair Labor Standards Act (FLSA) has had—and continues to have—a remarkable impact on the workplace through requirements that most employees are entitled to at least a minimum wage for all hours worked and overtime premium pay for hours worked in excess of 40 hours in a workweek. This year marks the 80th anniversary of the enactment of the FLSA, and there’s a lot that has changed in the last eight decades. This article will address some of those changes, current areas of concern for employers, and revisions that are likely to be made in the near future.
Fisher Phillips • May 31, 2018
Here we are - the school year is coming to a close and you are eager to get your business staffed with forward-thinking, millennial summer hires. Don’t move too fast though, because in addition to the federal Fair Labor Standards Act’s restrictions we discussed earlier this month, there are numerous states that provide even more rigorous limitations on the employment of minors.
Fisher Phillips • May 01, 2018
It has been a busy month for the U.S. Department of Labor (USDOL) with respect to, among other things, the federal Fair Labor Standards Act (FLSA). From enforcement programs to compliance resources, the agency has stepped up and provided timely guidance that ultimately can benefit everyone, if employers understand what the various materials do and do not say.
Jackson Lewis P.C. • April 26, 2018
In most lawsuits filed under the Fair Labor Standards Act (FLSA), an employer’s ability to recover any attorney’s fees under the prevailing standard – that a plaintiff filed the case in “bad faith, vexatiously or wantonly” – is much too difficult to satisfy. A recent decision from the U.S. District Court for the Middle District of Florida, however, provides an avenue for recovery of such fees – at least in part. Aralar v. Scott-McRae Automotive Group, LLLP, 2018 U.S. Dist. LEXIS 64045 (M.D. Fla. Apr. 17, 2018).
Ogletree Deakins • April 22, 2018
On April 12, 2018, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) issued a new fact sheet concerning “the applicability of [the white collar] exemptions [of the Fair Labor Standards Act] to jobs that are common in higher education institutions.” In contrast to other recent DOL direction, Fact Sheet #17S largely echoes previous guidance from the Obama-era DOL. Specifically, it summarizes points from the DOL’s May 2016 Guidance for Higher Education Institutions on Paying Overtime under the Fair Labor Standards Act, a publication anticipating the never-implemented DOL’s revised overtime regulations, which would have raised the salary threshold for previously-exempt employees at institutions of higher education.
Fisher Phillips • April 17, 2018
It's tax time, and perhaps the only thing worse than completing your tax returns is finding out that you're being audited. Common responses to undergoing an audit may involve gnashing of teeth, pulling of hair, and other forms of self-inflicted minor violence.
FordHarrison LLP • April 02, 2018
Welcome to the inaugural issue of FordHarrison's newest publication, The Timekeeper - A Quarterly Guide to Developments in Wage/Hour Law, brought to you by the Wage/Hour Practice Group. Each quarter, FordHarrison's Wage/Hour Practice Group members will provide subscribers with updates on the DOL, the latest in case law, and insight into wage and hour developments.
Littler Mendelson, P.C. • April 02, 2018
Never mind the Ides of March, for employers with tipped employees: beware the federal budget process. Presumably no one’s March Madness bracket had federal Fair Labor Standards Act (FLSA) amendments going to, let alone winning, D.C.’s “big dance.” How this Cinderella story plays out remains to be seen, so, during federal legislative half-time, we’ll take a quick look at the scores from other minimum wage, tips, and overtime games around the country.
Fisher Phillips • March 18, 2018
Last week the U.S. Department of Labor (USDOL) announced its Payroll Audit Independent Determination (PAID) pilot program to mixed reactions. The PAID program is meant to provide a framework for employers to proactively resolve potential federal Fair Labor Standards Act (FLSA) claims. In a nutshell, an employer will be able to self-report potential violations to USDOL and attempt to resolve the issues efficiently and under the agency's "supervision," as outlined on its website.
Goldberg Segalla LLP • March 18, 2018
Earlier this month, the U.S. Department of Labor (DOL) announced the Payroll Audit Independent Determination (PAID) Program. PAID will be rolled out in April 2018 as a six-month pilot program to incentivize employers to address any wage and hour underpayments under the Fair Labor Standard Act (FLSA).
Littler Mendelson, P.C. • March 02, 2018
February may be the shortest month of the year, but what it lacked in days it made up with minimum wage and overtime developments at the federal, state, and local levels.
Littler Mendelson, P.C. • February 14, 2018
In 2017, legislatures in more than 40 jurisdictions across the United States considered more than 100 bills intended to narrow the lingering pay gap between men and women. While only a handful of those proposals ultimately became law, this wave shows no signs of subsiding. Most state legislatures are back in session, and lawmakers are quickly picking up where they left off.
Fisher Phillips • January 31, 2018
Early discovery in cases brought under the Fair Labor Standards Act (“FLSA”) may be changing significantly if courts begin to adopt the new Initial Discovery Protocols For Fair Labor Standards Act Cases Not Pleaded As Collective Actions. The Federal Judicial Center’s FLSA Protocols Committee, which includes judges as well as lawyers engaged in FLSA matters, has developed discovery protocols that seek to change a party’s initial disclosure requirements to include additional documents and information specifically relevant to FLSA cases.
Fisher Phillips • January 21, 2018
Technology seems to be advancing faster than we can keep up. These advances impact the employer community as well—even regarding basic things such as how, when, and in what manner wages are paid.
FordHarrison LLP • January 10, 2018
Executive Summary: In a change from the prior administration, the U.S. Department of Labor (DOL) on Friday reinstated nearly 20 “opinion letters” previously published under the Bush administration, but withdrawn prior to implementation by the Obama administration. The U.S. DOL also issued field bulletins providing new guidance on enforcement positions. The reissued letters predominately focus on specific industries; however, three of opinions generally apply to all employers. Below is a brief summary of each opinion.
Ogletree Deakins • January 08, 2018
On January 5, 2018, the U.S. Department of Labor (DOL) reissued 17 previously withdrawn opinion letters addressing a wide range of topics under the Fair Labor Standards Act (FLSA). The former acting administrator of the DOL’s Wage and Hour Division (WHD) signed 15 of the 17 opinion letters in January of 2009, during the final days of the Bush administration. The Team Leader of what was then the Fair Labor Standards Team of the Office of Enforcement Policy of WHD signed the remaining two opinion letters. Three other withdrawn 2009 opinion letters—FLSA 2009-22, FLSA 2009-23, and FLSA 2009-24—remain withdrawn.
Fisher Phillips • January 05, 2018
This week the U.S. Department of Labor published increases in the civil money penalties it can impose for certain violations of the federal Fair Labor Standards Act.
Littler Mendelson, P.C. • December 13, 2017
As employers wait to see whether – and to what extent – the U.S. Department of Labor will revise the minimum amount they must pay to executive, administrative, and professionals for exemption from the Fair Labor Standards Act’s (FLSA) minimum wage and overtime requirements, state-law rates for these employees are scheduled to increase in 2018 (and on New Year’s Eve in New York).
Littler Mendelson, P.C. • November 27, 2017
Russ McEwan, significantly experienced in construction and prevailing wage requirements, discusses key issues facing government contractors with fellow Littler attorney Kurt Rose. Russ addresses the expansion of prevailing wage obligations in public construction work and common employer compliance hurdles. Russ and Kurt also review the typical life cycle of a prevailing wage dispute and potential risks for employers and individuals – including liability for subcontractor misconduct.
Jackson Lewis P.C. • November 21, 2017
Finding not a “scintilla” of evidence to support claims of minimum wage violations, a New York federal district court in Yu Sen Chen et al v. MG Wholesale Distribution Inc. et al, 16-cv-04439 (E.D.N.Y.) dismissed a proposed collective action (and refused to exercise supplemental jurisdiction of the corresponding state law claims). In doing so, the district court relied on simple arithmetic and the plaintiff’s own admissions.
Jackson Lewis P.C. • November 21, 2017
Employees requesting, currently taking, or just returning from leave under the Family and Medical Leave Act (“FMLA”) can be terminated for legitimate reasons that are unrelated to their FMLA leave. This point is exemplified by Jennings v. Univ. of N.C., N.C. Ct. App., Case No. COA16-1031 (July 5, 2017), which was the subject of a prior post on this Blog. In Jennings, the North Carolina Court of Appeals ruled that an employer did not violate the FMLA by proceeding with a disciplinary hearing and termination of an employee because of allegations of misconduct that arose prior to her FMLA leave.
Littler Mendelson, P.C. • October 12, 2017
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.
Fisher Phillips • August 28, 2017
Affected employers will have a variety of wage-hour questions in the aftermath of Hurricane Harvey. The number and scope of the issues raised might well be practically endless. Here we address in very general ways the federal Fair Labor Standards Act topics that experience suggests will be among the most-pressing.
Littler Mendelson, P.C. • August 01, 2017
It’s summertime, but the living is anything but easy for employers trying to track minimum wage and overtime developments. The U.S. Department of Labor is defending legal challenges to various rules the Obama administration adopted, while simultaneously working to revise those rules. States continue to battle with local jurisdictions over who dictates minimum wage rates, and are themselves generally amending minimum wage and/or overtime standards. Additionally, where unencumbered, cities and counties are proposing, enacting, or amending minimum wage ordinances.
Franczek Radelet P.C • July 21, 2017
While not strictly speaking a wage and hour issue, here is a heads-up to any employers that use timekeeping systems featuring biometric security, like a thumbprint or fingerprint scanner:
Fisher Phillips • July 10, 2017
The U.S. Department of Labor's announcement that it would resume issuing opinion letters has re-invigorated criticism that recently surfaced at the mere suggestion that this might be done.
Ogletree Deakins • May 30, 2017
In Jones v. SCO Silver Care Operations LLC, No. 16-1101 (May 18, 2017), the Third Circuit Court of Appeals addressed whether several certified nursing assistant plaintiffs were entitled to pursue their claims for violations of the Fair Labor Standards Act (FLSA) in court or were required to submit the claims to an arbitrator in accordance with the collective bargaining agreement (CBA) between their union and their employer. The Third Circuit held that the certified nursing assistants’ overtime claims did not depend upon an interpretation of the CBA, and accordingly, rejected the employers’ contention that the plaintiffs were first required to present their claims to arbitration.
Nexsen Pruet • May 24, 2017
These days, the majority of mid-to-large employers use payroll service providers for ease of payroll recordkeeping and administration. These third party providers help ease the burden of calculating taxes and withholding, and filing timely returns with state and federal administrative agencies. But while they are increasingly relying on third parties, employers ultimately are responsible for the payment of income tax withheld and the employer and employee portions of Social Security and Medicare taxes, notwithstanding third party negligence or even malfeasance.
Nexsen Pruet • April 12, 2017
Security apps, passwords, and slow computers can delay the start of the workday for many of us by one to six minutes. For non-exempt employees, this can become an issue. Office employees who clock in using their work computers may not be able to do so until after they boot up the machine, and they may clock out before certain programs are closed and they have logged out. In light of this daily routine, is an employer required to compensate the employee for this “boot up” or “shut down” time?
Fisher Phillips • April 05, 2017
Employers sometimes discover that, due to mistake, inadvertence, misunderstanding, or a lack of knowledge, they have not paid all of the wages required under the federal Fair Labor Standards Act. In many instances, this does not occur in the context of a lawsuit or a U.S. Department of Labor compliance audit. Instead, management learns this as the result of, for example, an internal review.
Fisher Phillips • March 23, 2017
When U.S. Department of Labor Wage and Hour Division investigators conclude that back-wages are due under the federal Fair Labor Standards Act or another law the Division enforces, typically they present to the employer a completed Form WH-56, called a "Summary of Unpaid Wages". This document reflects a variety of information, including the names of each individual the investigator believes should receive a payment and the gross amount of this payment.
Fisher Phillips • December 09, 2016
Presidential elections have typically sparked speculation about possible changes in employment laws and enforcement policies. But this seems to be especially true now, due in part to the discussion already occurring about revisions in the compensation requirements for the federal Fair Labor Standards Act's "white collar" exemptions.
Ogletree Deakins • October 31, 2016
Some employers are apparently referring mainly (or even only) to U.S. Labor Department "Fact Sheets" in deciding what they should do to prepare for the coming changes in the federal Fair Labor Standards Act's so-called "white collar" exemptions.
Fisher Phillips • July 10, 2016
The U.S. Labor Department has issued an Interim Final Rule that will substantially increase the civil money penalties it can impose for certain violations of the federal Fair Labor Standards Act and related regulations.
Fisher Phillips • June 27, 2016
In a positive development for employers, the U.S. Equal Employment Opportunity Commission (EEOC) recently announced that it would revisit its controversial proposed pay data collection rules, essentially acknowledging that its initial proposal would have been unduly burdensome for businesses.
Franczek Radelet P.C • May 25, 2016
In a recent blog post, Wage and Hour Administrator David Weil tries to underplay employer concerns about the new overtime exemption rules, including worries about the difficulty of tracking time for employees who are not used to recording their hours, stating:
Franczek Radelet P.C • March 28, 2016
When sexual harassment lawsuits started becoming a major liability issue for employers, many employers sensibly responded by requiring their supervisory employees to go through mandatory anti-harassment training. There is at least some data to suggest that training and other preventive measures have done some good. For example, statistics published on the EEOC’s website (here and here) show a more-or-less steady decline in the number of harassment charges filed with the agency each fiscal year, from a high of 15,889 charges in FY1997 to just 6,822 charges in FY2015.
Fisher Phillips • March 11, 2016
One approach to the coming changes in the federal Fair Labor Standards Act's Section 13(a)(1) exemptions would be to abandon exempt status for at least some employees.
Fisher Phillips • March 03, 2016
It's time for a reminder: Long-held conventional wisdom that might be questionable or even mistaken under the federal Fair Labor Standards Act (or the analogous laws of other jurisdictions) continues to face unprecedented scrutiny.
Littler Mendelson, P.C. • February 29, 2016
The death of an employee is an unfortunate fact of life for businesses. Nonetheless, employers may be ill-prepared for the inevitable issues that arise from the sad event.
Fisher Phillips • February 12, 2016
Some employers use the colloquialisms "current" and "in arrears" to describe the timing of employees' wage payments.
Franczek Radelet P.C • February 01, 2016
Over the last few months we've been asked on an almost daily basis when the DOL will be publishing its hotly anticipated white collar exemption rules. The short answer is still, we don't know. A few months ago, the word was "late 2016," which made some sense due to the extremely high volume of comments the DOL received during the 60-day public comment period.* Now, signs point to an earlier release.
Jackson Lewis P.C. • January 28, 2016
Overtime claims based on alleged “off the clock” work often turn on the question of whether the employer has “suffered or permitted” the employee to work uncompensated hours in excess of forty in the workweek. The Court of Appeals for the Fifth Circuit has affirmed a Mississippi district court’s finding that an employer did not violate the FLSA where the Plaintiff failed to record overtime hours in contravention of employer’s timekeeping policy. Fairchild v. All Am. Check Cashing, 2016 U.S. App. LEXIS 1298 (5th Cir. Jan. 27, 2016).
FordHarrison LLP • January 22, 2016
Executive Summary: Under the Obama administration, the U.S. Department of Labor (DOL) has aggressively enforced and interpreted the federal wage and hour laws. Consistent with that approach, on Wednesday January 20, 2016, the Department of Labor's Wage & Hour Division (WHD) issued an Administrator's Interpretation (AI) that explains and expands its definition of "joint employment." The AI suggests that the WHD will again increase its enforcement efforts, placing more companies under even greater scrutiny and potential liability for compliance with wage and hour laws.
Jackson Lewis P.C. • January 22, 2016
On January 20, 2016, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued an Administrator’s Interpretation (AI) on joint employment under the Fair Labor Standards Act (FLSA) and Migrant Seasonal Agricultural Worker Protection Act (MSPA). This sub-regulatory guidance largely reflects existing WHD policy. However, it confirms how broad the DOL’s view of the concept of joint employment is, and it signals that the DOL will aggressively enforce the FLSA and MSPA against those it believes to be joint employers.
Ogletree Deakins • December 17, 2015
On December 16, 2015, the Ninth Circuit Court of Appeals decided that it would not rehear its earlier decision in a high-profile case on payments that can be made to student-athletes.
Ogletree Deakins • October 26, 2015
The Second Circuit Court of Appeals recently ruled that expert witness fees are not recoverable under the Fair Labor Standards Act (FLSA). In Gortat v. Capala Brothers, Inc., No. 14-3304-cv (July 29, 2015), the Second Circuit ruled in a class action case filed by five former employees who sought unpaid wages and overtime compensation. In May of 2013, a jury found for the workers. In pertinent part, the district court ordered the employer to reimburse the workers for more than $10,000 that they had spent to retain an accounting expert used during trial.
Jackson Lewis P.C. • October 15, 2015
The Fair Labor Standards Act exempts “employee[s] employed in agriculture” from its overtime requirement. Recently, the Court of Appeals for the Sixth Circuit applied this exemption to the operations of an employer who “moved to the United States from his native France in 1992 to grow worms,” and affirmed the district court’s decision holding that workers at Defendant’s Silver Bait worm farming operation were exempt from overtime under 29 U.S.C. § 213(b)(12). Barks v. Silver Bait, LLC, 2015 U.S. App. LEXIS 17310 (6th Cir. 2015).
Franczek Radelet P.C • October 13, 2015
On September 30, 2015, the Ninth Circuit Court of Appeals affirmed, in part, a district court’s ruling that some of the National Collegiate Athletic Association’s (NCAA) compensation rules were unlawful restraints on trade in violation of the Sherman Antitrust Act. Section 1 of the Sherman Act prohibits “[e]very contract, combination…, or conspiracy, in restraint of trade or commerce.” The NCAA prohibits student-athletes from being compensated for the use of their “names, images, and likenesses” (NILs). After a bench trial, the district court concluded that these compensation rules were an unlawful restraint on trade and enjoined the NCAA from prohibiting its member schools from giving student-athletes scholarships or grants up to the full cost of attendance (as opposed to only the full cost of tuition) at their respective schools, and up to $5,000 annually in deferred compensation, to be held in a trust for the student-athlete until after they leave school.
Ogletree Deakins • September 21, 2015
Ongoing activity by the Department of Labor (DOL) regarding overtime regulations, coupled with recent federal court decisions regarding compliance with the Fair Labor Standards Act (FLSA), have raised the level of attention to wage payment issues — and have increased the risk of employer liability — to new heights. A recent decision by the 5th U.S. Circuit Court of Appeals provides a clear illustration of the type of action that triggers that risk. Miles v. HSC-Hopson Services Company, Incorporated, 5th Cir., No. 14-11237 (September 8, 2015).
Jackson Lewis P.C. • September 10, 2015
One common impediment to resolution of FLSA claims is the amount of attorneys’ fees sought by the claimant’s attorney. One important factor in assessing an appropriate fee is the rate likely to be awarded by the Court should Plaintiff prevail in that jurisdiction. A new appeals court decision approves fixing that rate at $350/hour for experienced counsel in the Eastern District of New York. Encalada v. Baybridge Enters., 2015 U.S. App. LEXIS 15985 (2d Cir. 2015).
Franczek Radelet P.C • September 04, 2015
In July, we wrote about the Department of Labor’s proposed changes to the regulations governing the white collar exemptions of the Fair Labor Standards Act. The current regulations governing these exemptions—executive, administrative, and professional—include a salary basis test by which to determine if an employee meets one of these exemptions. The salary basis test currently requires that an exempt employee be paid at least $455 per week (or $23,660 annually). Among other things, the proposed changes to the regulations would increase the salary test to $970 per week (or $50,440 annually) in 2016.
Fisher Phillips • June 30, 2015
As we anticipated, another report – this one from DC Jobs With Justice, the Jobs With Justice Education Fund, the DC Fiscal Policy Institute, and the Georgetown University Department of Government – asserts that District of Columbia employers are imposing "erratic and unpredictable hours" for their workers in an effort to "boost corporate profits and keep labor costs low."
Franczek Radelet P.C • June 26, 2015
As we head into the waning days of June, strong storms and persistent flooding have been all over the news lately. Near me, storms earlier this week demolished homes and businesses, dropped a communications tower on a fire department, knocked out power, and generally left businesses and homeowners unable to go about their normal work.
Franczek Radelet P.C • June 25, 2015
Last week, the Department of Labor posted a new blog post from Wage and Hour Division Administrator Dr. David Weil highlighting the DOL’s wage and hour enforcement efforts. Dr. Weil’s statement that the DOL recovered “over $240 million owed to more than 270,000 workers nationwide in fiscal year 2014 alone” sent me digging in the DOL’s Online Enforcement Database and its statistical abstracts. While I object to the DOL including the specific company information in its database, the inclusion of such data provides fair warning to certain industries that the DOL receives more complaints, undertakes more investigations, and conducts more enforcement actions in those industries.
Franczek Radelet P.C • June 16, 2015
The DOL’s Wage and Hour Division expanded its already busy agenda, announcing upcoming guidance on the Fair Labor Standards Act’s definition of “independent contractor.” WHD Administrator David Weil, speaking at New York University School of Law’s 68th Annual Conference on Labor, disclosed during his keynote address that his office would soon issue an “Administrator’s Interpretation” that he indicated would “clarify” who qualifies as an independent contractor under the FLSA by providing a "very clear set of criteria."
Littler Mendelson, P.C. • June 04, 2015
On June 1, 2015, in Bodle v. TXL Mortgage Corporation, the U.S. Court of Appeals for the Fifth Circuit recognized established precedent1 that parties may privately settle and release wage claims that include a bona fide dispute as to liability (e.g., hours worked or compensation owed). But, the court also refused to find a prior state court settlement agreement enforceable as to overtime claims brought under the Fair Labor Standards Act (FLSA) because there was no mention or factual development of any claim of unpaid overtime or a bona fide dispute as to hours worked or compensation owed under the FLSA in the prior state court case and its settlement negotiations.
Fisher Phillips • June 01, 2015
U.S. Wage and Hour Division Administrator David Weil reportedly has said that the Division is “looking very actively at” the question of whether workers should be legally entitled to “predictable scheduling.” In recounting Mr. Weil’s statements in a recent interview, Daily Labor Report characterized his remarks as having to do with whether an employee has an enforceable right to a predictable, stable work schedule or to some sort of advance notice of that schedule.
Franczek Radelet P.C • May 01, 2015
Periodically this year, we have discussed some of the fundamentals of wage and hour law, starting with a general review of the white collar exemptions. We will continue to periodically review some of the more fundamental concepts of the FLSA, including a comprehensive review of the new FLSA exemption rules that we expect the DOL to issue at some point this year. As always, remember that these are just the basics: the application of these rules to specific facts is where the rubber really meets the road for employers.
Franczek Radelet P.C • April 24, 2015
Over the last month, Domino’s has been in the news for some of the wrong reasons, with not one but two Fair Labor Standards Act (FLSA) class action lawsuits alleging that two large Domino’s franchisees paid delivery drivers less than minimum wage.
Fisher Phillips • April 16, 2015
In late January, we reported on U.S. Wage and Hour Division Administrator David Weil's comments that the agency is considering whether the federal Fair Labor Standards Act somehow entitles employees to "predictable scheduling". His remarks related to whether there is an enforceable right to a stable work schedule and to advance notice of that schedule.
Franczek Radelet P.C • March 27, 2015
It happens every year: I read a decision from a federal judge about the federal Fair Labor Standards Act and shake my head that it actually took litigation to resolve such an obvious question. It is only March, but 2015 already is no different. A recent decision by a federal district judge in New York compelled me to bring back our periodic Captain Obvious posting.
Franczek Radelet P.C • March 24, 2015
Last week, Secretary of Labor Thomas Perez testified during a hearing held by the House Education and Workforce Committee to discuss President Obama’s budget proposal for the Department of Labor. Secretary Perez’s testimony touched a wide range of topics, most notably the oft-delayed FLSA regulations rewrite we have discussed in recent months. The DOL Secretary also echoed President Obama’s call for an increase in the federal minimum wage, despite the action of 17 states to enact increases in the past few years.
Franczek Radelet P.C • March 18, 2015
The calendar has flipped from February to March, but there is still nothing from the Department of Labor regarding new regulations governing the Fair Labor Standards Act. Don’t worry, you haven’t missed anything. The DOL missed its February deadline and has not announced any new deadlines just yet. As we have written here, the new regulation is intended to implement President Obama’s directive to modernize and streamline FLSA regulations for executive, administrative, and professional employees. Although the calendar has changed to February, the page where the regulations, or at least a final release date, would be announced has yet to change.
Fisher Phillips • March 18, 2015
From the federal Fair Labor Standards Act's inception in 1938, employers sought, and officials of the U.S. Labor Department's Wage and Hour Division provided, official written explanations of how that law works in particular situations. These "opinion letters" served as an important means by which the public could develop a clearer understanding of what FLSA compliance entailed.
Goldberg Segalla LLP • March 06, 2015
At 2 a.m. on Sunday, March 8, 2015, people all across the United States will set their clocks forward one hour to begin Daylight Saving Time (DST). The change is intended to place more sunlight into “daytime” hours in order to seemingly stretch the day longer and conserve energy. In fact, 2015 marks the ninth year DST was expanded by four weeks pursuant to the Energy Policy Act of 2005.
Fisher Phillips • March 02, 2015
The U.S. Labor Department (DOL) often sets its sights up the food chain, focusing enforcement efforts on general contractors (GCs) for the wage violations of their subcontractors. In recent years, federal district courts and the DOL have been putting pressure on GCs to insist on and monitor Fair Labor Standards Act (FLSA) compliance by others with whom they share a business relationship by terming them “joint employers.”
Franczek Radelet P.C • February 19, 2015
When I was a kid, my grandpa (a trained biochemist) used to teach me how to burn things and blow things up with my little home chemistry set. But that’s a story for another time. He also used to tell me a story that I never could quite figure out when I was young.
Franczek Radelet P.C • February 17, 2015
As if the DOL’s new Fair Labor Standards Act regulations weren’t enough to fill your plate this year, a recent interview (subscription required) that the DOL’s Wage and Hour Division Administrator David Weil gave to BNA’s Daily Labor Report has added to what portends to be a monumental shift in wage and hour law.
Franczek Radelet P.C • February 17, 2015
At the end of last year, we discussed the Pay Period Leap Year and what it means for employers. If your first weekly paychecks will issue on Thursday, January 1, 2015, you will have a fifty-third pay period on December 31, 2015. If your first bi-weekly paychecks will issue on Thursday, January 1, 2015, you will have a twenty-seventh pay period on December 31, 2015, depending on payday holiday processing rules. This means that for employers who pay employees weekly or bi-weekly, 2015 could be a Pay Period Leap Year, but it doesn’t mean that all of your employees will have one. We discussed three options for handling Pay Period Leap Years if you pay employees on a weekly or bi-weekly basis, each of which we discussed in detail in our December post:
Franczek Radelet P.C • February 11, 2015
If you read this blog regularly, you know that since last spring, we have been telling you about what to expect from the new Fair Labor Standards Act regulations. The regulations were delayed, but what we expect hasn’t changed, as I explained in November. According to the Fall 2014 Agency Rule List, the DOL’s “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees” regulation should be ready this month. The regulation is intended to implement President Obama’s directive to modernize and streamline FLSA regulations for executive, administrative, and professional employees. Although the calendar has changed to February, the page where the regulations, or at least a final release date, would be announced has yet to change.
Fisher Phillips • January 30, 2015
U.S. Wage and Hour Division Administrator David Weil reportedly has said that the Division is "looking very actively at" the question of whether workers should be legally entitled to "predictable scheduling". In recounting Mr. Weil's statements in a recent interview, Daily Labor Report characterized his remarks as having to do with whether an employee has an enforceable right to a predictable, stable work schedule or to some sort of advance notice of that schedule.
Franczek Radelet P.C • January 19, 2015
The dawning of a new year means it is time to look back at the number of cases filed in federal courts during the past year under the Fair Labor Standards Act. Every year seemingly without fail, that number goes up. 2014 was no exception.
Franczek Radelet P.C • January 06, 2015
In the run-up to the holidays, Congress rushed a Continuing Resolution (CR) to President Obama's desk entitled the Consolidated and Further Continuing Appropriations Act, 2015. The omnibus spending bill, nicknamed "CRomnibus," avoided another government shutdown and funded most federal agencies (save for the Department of Homeland Security) through the federal government's 2015 fiscal year, which ends on September 30, 2015. As with many omnibus spending bills, Congress buried in the CRomnibus a number of actions intended to restrict federal agencies’ activities and, in some cases, to make substantial changes to existing laws. Of particular note to readers of this blog, both the Department of Labor and the trucking industry came out winners in the wage and hour world. CRomnibus increased funding for the Department of Labor and several of its subagencies, and handed motor carriers a temporary reprieve from the FMCSA's 2013 maximum hours-of-work regulations.
FordHarrison LLP • January 05, 2015
Executive Summary: The U.S. District Court for the District of Columbia has issued a Temporary Restraining Order ("TRO") blocking the U.S. Department of Labor ("DOL") from enforcing the new definition of Companionship Services in its Final Rule on the Application of the Fair Labor Standards Act to Domestic Service Order ("Final Rule"), which was set to take effect, January 1, 2015. On December 22, 2014, this same court had vacated the Final Rule's differing treatment of home care agencies versus direct-hire employers, such as individuals, families, and households, stating that both should benefit similarly from the "companionship services" and "live-in" exemptions under the Fair Labor Standards Act ("FLSA"). To determine whether a Preliminary Injunction should issue, the court will hold a hearing on January 9, 2015.
Fisher Phillips • January 05, 2015
Solicitor of Labor M. Patricia Smith spoke at a December continuing-legal-education conference in Atlanta. Her remarks in a couple of areas were especially interesting.
Franczek Radelet P.C • December 29, 2014
When I was a kid, my parents taught me the traditional Mother Goose rhyme to remember how many days each month had: “Thirty days hath September, April, June, and November. All the rest have 31….Except for February.” It always seemed odd that this supposed Mother Goose rhyme couldn’t figure out how to fit February in. The payroll calendar, at least for those employers with bi-weekly pay periods, doesn’t fit it in either. That means that while 2015 isn’t a leap year on the calendar, it will be a Pay Period Leap Year for many employers.
Fisher Phillips • December 15, 2014
The Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration have announced that they will soon publish interim Federal Acquisition Regulation amendments designed to implement President Obama's directive to raise the minimum-wage rate for workers on federal contracts to $10.10 per hour beginning January 1, 2015.
Fisher Phillips • December 10, 2014
Lurking among the numerous considerations raised by President Obama's "immigration accountability" initiative are the prospects that this action will result in more allegations by or on behalf of the affected individuals that they have not been paid in compliance with the federal Fair Labor Standards Act.
Fisher Phillips • December 01, 2014
We have written previously about President Obama's directive to change the requirements for who falls within the federal Fair Labor Standards Act's Section 13(a)(1) "white collar" exemptions for executive, administrative, and professional employees (as well as for outside-sales employees and other, derivative categories included at 29 C.F.R. Part 541). The virtually-certain outcome will be U.S. Labor Department regulatory proposals that are intended to reduce the number of employees who can meet the tests for exempt status.
Franczek Radelet P.C • November 19, 2014
As we discussed recently, this month marked the opening of the Supreme Court’s new term. For employment law practitioners, this session will be particularly busy with seven cases analyzing a range of employment questions, from the scope of the EEOC’s duty to conciliate discrimination claims to the applicability of whistleblower protection laws and the Pregnancy Discrimination Act. In Part 1 of this series, we discussed Integrity Staffing Solutions, Inc. v. Busk.
Franczek Radelet P.C • November 17, 2014
Following up on my post on the subject, I had the opportunity to discuss the impact of the 2014 Election on wage and hour laws around the country.
Franczek Radelet P.C • November 13, 2014
Last week, I answered some of the questions that we have been receiving about the new FLSA regulations, but I saved one that I hear almost everywhere I go: what should the Department of Labor do with the FLSA? Last week, I said “start over.” Of course, that’s not going to happen. Scrapping the FLSA and starting over is not an option right now, realistically or politically. If I was Secretary of Labor, what would I do? Develop a safe harbor for employers.
Fisher Phillips • November 06, 2014
In August, the U.S. Circuit Court of Appeals for the 3rd Circuit affirmed dismissal of five purported class or collective actions brought against a number of healthcare systems and their affiliates. Although favorable for the employers, this decision illustrates that plaintiffs’ lawyers remain eager to challenge various aspects of timekeeping practices that arise frequently in hospitals and other healthcare settings.
Franczek Radelet P.C • November 05, 2014
Before the election, we talked about minimum wage and paid sick leave initiatives on the rise, including some important ballot issues. With most of the results tallied, it appears that the Republicans weren’t the only big winners in the 2014 midterm elections last night. While the GOP retaking the Senate majority and reaching historic majority margins in the House garnered most of the national headlines, if you look just below the fold, minimum wage and paid sick leave initiatives were the other big winners of the night.
Franczek Radelet P.C • November 05, 2014
For most of the year, we have been discussing the upcoming FLSA regulations and what employers can expect related to the white collar exemptions. Recently, the DOL delayed the release of proposed rules, potentially for several months. The DOL’s announcement has raised a host of questions, some of which I discussed with SHRM’s legal editor, Allen Smith, this week. The DOL’s own “savage journey to the heart of the American Dream”—at least the part of it that defines how you must be paid while chasing it—continues to raise questions for employers (apologies to Hunter S. Thompson fans…I couldn’t resist). With Election Day upon us, it is a good time to take a deeper look at this issue and review some of the top questions we have received on this topic.
Fisher Phillips • November 04, 2014
The long-term-care industry depends on shift workers to provide patient care 24 hours per day, seven days per week. But even experienced and sophisticated employers can find the application of state and federal labor and employment laws particularly challenging in a shift-work setting. This article will identify a few common pitfalls and provide strategies for avoiding them.
Franczek Radelet P.C • October 29, 2014
This month marked the opening of the Supreme Court’s new term. For employment law practitioners, this session will be particularly busy with seven cases analyzing a range of employment questions, from the scope of the EEOC’s duty to conciliate discrimination claims (Mach Mining v. EEOC, oral argument set for January 2015 or later) to the applicability of a whistleblower protection law to employees who make disclosures “specifically prohibited by law” (Dep’t of Homeland Security v. MacLean, oral argument November 8). Over at the FMLA Insights blog, my colleague Jeff Nowak discusses Young v. UPS, where the Court will consider whether, and in what circumstances, the Pregnancy Discrimination Act requires an employer that provides work accommodations to non-pregnant employees with work limitations to also provide work accommodations to pregnant employees with similar work limitations.
Franczek Radelet P.C • October 13, 2014
Back in late May, we told you that the Department of Labor had released its required Semiannual Regulatory Agenda. The Agenda, which is not binding on the DOL, included several FLSA-related items. Most importantly, the DOL listed its plans to address the “white collar” overtime exemption regulations with proposed rules next month, in November 2014. The section, “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees,” appears on page 56 and 57 of the Agenda. At the time, we predicted that “even with a short 30-day comment period and a quick turnaround on a final rule, the DOL is unlikely to have any new regulation in place before spring 2015.”
Ogletree Deakins • September 23, 2014
The National Collegiate Athletic Association’s (NCAA) fundamental beliefs about the role of student-athletes and its economic model just received a partial rebuke from the courts. On August 8, 2014, a federal judge ruled that the NCAA’s rule prohibiting student-athletes from being compensated for the use of their names, images, and likenesses violated federal antitrust laws.
Franczek Radelet P.C • September 10, 2014
One of my favorite authors and artists as a kid was Shel Silverstein, and I have loved rediscovering his books and poems with my daughter (“The Giving Tree” is much sadder than I remember as a kid—something about having kids of your own, I imagine).
Franczek Radelet P.C • August 28, 2014
From time to time, we hear from employers that ask us about the consequence of delaying payroll because of cash flow.
Franczek Radelet P.C • August 07, 2014
I promise that this post isn’t a bad setup to a joke about The Sopranos, the mafia, or being in “waste
Franczek Radelet P.C • August 05, 2014
Last year, the DOL announced an eye-popping $2 million Fair Labor Standards Act (FLSA) settlement with Hutco, Inc, a labor services firm, for Hutco’s miscalculation of “per diem” payments to temporary workers and contractors. The DOL found that Hutco “mischaracterized certain wages as ‘per diem’ payments and impermissibly excluded these wages when calculating overtime premiums, thus denying employees earned overtime compensation.” This month, the same New Orleans District Office of the DOL’s Wage and Hour Division announced a $1.6 million settlement with another employment agency, B&D Contracting, for “per diem” violations for employees under the FLSA. The continued virtual “perp walks” highlight the heightened scrutiny that DOL is giving per diem payments.
Ogletree Deakins • July 28, 2014
Two weeks ago, the U.S. House of Representatives passed, by voice vote, a little-understood and little-noticed amendment to the Fiscal Year 2015 Energy and Water Development and Related Agencies Appropriations Act (H.R. 4923) that would debar large federal contractors that have been found to have violated the Fair Labor Standards Act (FLSA) within the past five years. “Debarment” is a sanction imposed for violations of law that prohibits cited contractors from doing business with the federal government for a length of time.
Franczek Radelet P.C • July 25, 2014
If you have been anywhere near a TV or radio over the past few months, you have probably seen or heard the ads for Hotels.com featuring Captain Obvious. If you’re from the Midwest, and Indiana in particular, it has probably crossed your mind whether the Bob and Tom Show’s Mr. Obvious and Captain Obvious are somehow related. Well, maybe
Franczek Radelet P.C • July 23, 2014
Late last month, the Senate referred the Fiscal Year 2015 Defense Appropriations Act to the Senate Committee on Appropriations for consideration. The House of Representatives passed its version (H.R. 4870) on June 20 with substantial bipartisan support, 340-73, after considering 80 different amendments. Since this is a wage and hour blog, you can safely assume that I am not telling you about this just so I can link to the cool beta version of the bill tracker at Congress.gov. Of course, you also read the headline, so you know the House version of the bill currently contains a scary provision for many federal contractors.
Fisher Phillips • July 18, 2014
A recent U.S. Labor Department press release highlights a growing area of scrutiny under the federal Fair Labor Standards Act: Paying "per diem" amounts to non-exempt employees.
Franczek Radelet P.C • July 17, 2014
My apologies to Dave Dudley. The song “Six Days on the Road” just doesn’t stand up to the changes we would have to make after the Ninth Circuit’s decision that the state meal and rest break laws are not preempted by federal hours of service laws (though I’m pretty sure that, eyes open wide or not, the “taking little white pills” part wasn’t even legal in 1963).
Franczek Radelet P.C • July 11, 2014
Those of you who attended our annual Employment Law Conference this past February know that failing to complete Form I-9 for all new hires can lead not only to civil fines and penalties, but to criminal penalties (If you missed the conference, all of the materials and audio are available here). That’s true for wage and hour violations, too. And I don’t just mean for the company; I mean for every manager involved. In the highest profile recent example, federal prosecutors indicted a sitting Congressman, Republican Michael Grimm from Staten Island, in April 2014 for violations of wage and hour-related tax laws, and the Immigration Reform and Control Act of 1986 (the “IRCA”), among other charges related to a fast food restaurant he once owned. He allegedly filed false state and federal tax returns to underreport more than $1 million in sales and wages by concealing gross receipts and off-the-books cash wage payments.
Franczek Radelet P.C • July 03, 2014
While renewing my license plates online with Indiana’s Bureau of Motor Vehicles (yes, bureau, not department), I saw an advertisement for the Indiana Attorney General’s Unclaimed Property Division, IndianaUnclaimed.gov. On a lark, I went to the site and found over $3,000 that my former company, an Internet service provider, was owed by MCI for a credit balance on one of our interstate data circuits. An unexpected bonus! What does my good fortune have to do with wage and hour issues? Aside from customer funds like my situation, one of the most common reasons that states end up with unclaimed property is money or other property owed to former employees.
Fisher Phillips • May 30, 2014
The "de minimis" worktime concept is a common-sense, court-recognized notion dating from the federal Fair Labor Standards Act's earliest days. It has been articulated by the U.S. Labor Department this way:
Franczek Radelet P.C • May 28, 2014
Recently, we told you that President Obama had issued a Presidential Memorandum to the U.S. Department of Labor (DOL) instructing its Secretary to update regulations regarding overtime protection for workers under the Fair Labor Standards Act (FLSA), the federal law that establishes minimum wage and overtime pay requirements. The regulations have not been revised at all since 2004, and we made some predictions last month about what employers could expect and, more importantly, when they could expect it.
Franczek Radelet P.C • May 19, 2014
Whether you call it “rounding” or the “7/8ths rule” or have no word to describe it at all, rounding may be of central concern for employers, both in day-to-day operations and in litigation. Rounding is the practice of adjusting time clock punch times within specific bounds. For example, if your employees punch in for work at 7:57, 8:01, and 8:02, your rounding rules may treat all of those punches as occurring at 8:00 a.m. for payroll purposes.
Franczek Radelet P.C • May 16, 2014
As I mentioned yesterday, in order to avoid costly lawsuits or DOL enforcement actions, FLSA and state wage and hour due diligence should be a substantial part of the overall due diligence process in any deal involving a company with employees, regardless of whether those employees will be employed by the buyer.
Franczek Radelet P.C • May 15, 2014
Recently, my colleague Lindsey Marcus guest authored a post on yet another successor liability case, this time out of the Third Circuit. Her post reminded me of another case in the Seventh Circuit from 2013, and a larger point from the mergers and acquisitions part of my practice and my days doing M&A in the tech world: labor and employment issues are too often overlooked in purchase agreements.
Fisher Phillips • May 13, 2014
As we observed last October, there is reason to wonder whether the U.S. Labor Department has become more inclined than in the past to view criminal prosecution as being an appropriate course of action when it finds violations of the federal Fair Labor Standards Act. This possible predisposition has again surfaced, this time in an especially noteworthy way.
Nexsen Pruet • May 01, 2014
During his February 2014 State of the Union address, President Obama pledged to rely on his own executive authority to take action on behalf of American workers. He has taken this commitment to heart, and over the past several months has flexed his presidential muscle through executive orders and presidential memoranda. Specifically, Obama has increased the minimum wage payable by federal contractors, directed the Department of Labor to loosen overtime pay requirements, and prohibited retaliation against federal contractor employees who discuss their compensation.
Goldberg Segalla LLP • May 01, 2014
Employers, take note: The U.S. Department of Labor is watching your adherence to the Fair Labor Standards Act (FLSA), so be cautious — especially if you are on TV.
Fisher Phillips • April 28, 2014
Federal courts continue to embrace a broad view in evaluating the question of whether federal Fair Labor Standards Act liability may be imposed upon a successor company in particular situations.
Fisher Phillips • April 16, 2014
We reported earlier that the U.S. Labor Department has issued a Final Rule re-stating the requirements for and limitations upon the federal Fair Labor Standards Act's Section 13(a)(15) "companionship exemption". The changes are effective in January 2015. As has been widely discussed, this exemption will then no longer be available to third-party employers under the new regulations.
Franczek Radelet P.C • April 15, 2014
Last month, I wrote about the Obama Administration’s Presidential Memorandum to the U.S. Department of Labor (DOL) instructing its Secretary to update regulations regarding overtime protection for workers under the Fair Labor Standards Act (FLSA), the federal law that establishes minimum wage and overtime pay requirements. Since then, DOL Secretary Perez has spoken publicly about the possible scope of the changes.
Fisher Phillips • April 10, 2014
Last month, I wrote about the Obama Administration’s Presidential Memorandum to the U.S. Department of Labor (DOL) instructing its Secretary to update regulations regarding overtime protection for workers under the Fair Labor Standards Act (FLSA), the federal law that establishes minimum wage and overtime pay requirements. Since then, DOL Secretary Perez has spoken publicly about the possible scope of the changes. I’ve also spoken at a couple of events on this issue, and have gotten three questions: Can the president really do this? What do you think DOL will do? How soon could this happen? I wanted to share my thoughts on these three questions and give you a sense of what I think about the direction the DOL will take when it does propose new rules.
Franczek Radelet P.C • April 07, 2014
Recently, we told you about President Obama’s Executive Order increasing the minimum wage for employees of federal contractors to $10.10 per hour. Tomorrow, President Obama is expected to announce that he will sign two new executive orders that will apply to federal contractors: (1) one order will forbid retaliation by federal contractors against employees that discuss their compensation with other employees; and (2) the other order will require federal contractors to maintain certain records on compensation organized by race and gender, and report that data to the federal government. These Orders are being issued to further advance the Administration’s cause of equal pay for women.
Franczek Radelet P.C • March 31, 2014
Recently on Twitter, I commented that revising the FLSA regulations won’t be quick or easy. Speaking of Twitter, if you’re not following @WageHourInsight yet, why not? I find lots of interesting tidbits every day that don’t make it here to the blog, and you can follow along with some of the more free-wheeling conversations HR professionals have on the very same topics we discuss here.
Ogletree Deakins • March 19, 2014
Last week, the Supreme Court of the United States decided that it would not review two wage and hour cases. The first, Catsimatidis v. Irizarry, which was resolved through a settlement agreement, considered whether an individual could be held personally liable as an “employer” for violations of the Fair Labor Standards Act (FLSA). In the second, Jerusalem Cafe, LLC v. Lucas, the Court declined to consider whether undocumented workers have standing under the FLSA to sue for unpaid wages.
Fisher Phillips • February 07, 2014
On almost a daily basis, we read articles about class action lawsuits and settlements against fast-food chains. Almost all chains have had them. Fisher & Phillips has defended many of these lawsuits for different chains in all parts of the country.
Fisher Phillips • February 03, 2014
In recent years employers have become all too familiar with lawsuits alleging violations of the federal Fair Labor Standards Act (FLSA). According to the Administrative Office of the United States Courts, there were more than 7,000 FLSA federal lawsuits filed in 2012, and 2013 was similar. Many of these lawsuits include claims that the employee was “misclassified” as exempt from the FLSA’s overtime-pay requirements.
Fisher Phillips • January 29, 2014
Recent headline items touch upon matters of continuing concern.
Fisher Phillips • January 13, 2014
"Wage-hour lawsuits are booming," trumpets one recent report after another, and this is certainly true. The risk of high-exposure wage claims against an employer is greater than ever.
Fisher Phillips • November 22, 2013
One of the U.S. Labor Department's continuing federal Fair Labor Standards Act enforcement initiatives targets hotels and motels. Officials are following-through on their 2010 warning that they see the hospitality industry as presenting a "high risk" for non-compliance.
Fisher Phillips • November 15, 2013
The U.S. Labor Department has announced another proposal to conduct a survey relating to "worker classification issues" under the federal Fair Labor Standards Act.
Ogletree Deakins • November 05, 2013
Florida’s Second District Court of Appeal recently held that an arbitration agreement was unenforceable in the context of a claim brought under the federal Fair Labor Standards Act (FLSA) when the agreement provides for an award of attorneys’ fees and costs to the prevailing party, contrary to the FLSA’s provision that only a prevailing plaintiff is entitled to an award of attorneys’ fees.
Fisher Phillips • October 30, 2013
A U.S. Labor Department press release serves as a reminder that violations of the federal Fair Labor Standards Act can result in more than just back-wage payments and other civil remedies.
Fisher Phillips • October 17, 2013
We reported in July that the U.S. Labor Department had launched a "Fair Labor Data Challenge" asking application developers to create "an innovative tool that lets an informed consumer find out if a business is obeying the law when it comes to paying workers properly." As we said then, the actual solicitation goes well beyond information relating to "paying workers properly" and indeed expressly mentions providing access to information maintained by state licensing agencies and health boards, as well as unspecified environmental data.
Fisher Phillips • October 10, 2013
Employers sometimes pay workers more than the federal Fair Labor Standards Act requires. Of course, some do so as a matter of choice.
Ogletree Deakins • October 04, 2013
In my last blog post, “To Fee or Not to Fee—The Pros and Cons of Payroll Cards,” I discussed the growing popularity of payroll cards and several U.S. senators’ plea for guidance on this burgeoning pay practice. Perhaps in response to that letter, the Consumer Financial Protection Bureau (CFPB), on September 12, 2013, issued a bulletin, CFPB Bulletin 2013-10, regarding payroll cards and the effect that the Electronic Fund Transfer Act (EFTA) has on them. So, just what does this bulletin that has caused so much buzz say? Surprisingly, the answer is—nothing new. In fact, the CFPB explicitly states that it is issuing the bulletin to “reiterate” the application of Regulation E of the EFTA to payroll cards. This bulletin does not change the current state of federal law regarding payroll cards, and it does not have any effect on state laws.
FordHarrison LLP • September 16, 2013
Executive Summary: Many employers are using or considering using payroll cards to pay employees. A number of states have wage payment laws restricting employers' use of such cards. On September 12, 2013, the Consumer Financial Protection Bureau (CFPB) issued a bulletin stating that under federal law employers cannot mandate that their employees receive wages on a payroll card. Employees who choose to receive wages on a payroll card are entitled to certain federal protections.
Fisher Phillips • September 16, 2013
A statement of some federal-law limitations and requirements relating to the increasingly popular practice of compensating employees via the use of "pay cards" came from an atypical direction on September 12.
Fisher Phillips • September 04, 2013
On July 29, a federal appeals court addressed the question of whether the Fair Labor Standards Act’s minimum wage and overtime protections apply to undocumented aliens working illegally for an employer. Drawing on an analogy to the unlawful practices of a lawful immigrant, Al Capone, the U.S. Court of Appeals for the 8th Circuit firmly concluded that the FLSA’s protections apply, stating:
Fisher Phillips • September 04, 2013
In the age of technology and convenience, some businesses, particularly those with multi-state operations, are turning away from issuing paychecks to employees or paying them by direct deposit. Instead, some are opting to pay employees using payroll debit cards. Just like the debit card most people already carry in their wallet, many employers are issuing these cards to employees and depositing their wages on the card each pay period. The cards can be used like debit cards: the individual can use it to make purchases or withdraw money from an ATM. Some cards even allow employees to pay bills.
Ogletree Deakins • September 03, 2013
Nakahata v. New York-Presbyterian Healthcare Sys., Inc., No. 11-0734 (2d Cir. July 11, 2013); Dejesus v. HF Management Services, LLC, No. 12-4565, 2013 WL 3970049 (2d Cir. Aug. 5, 2013): In a continuing trend in the Second Circuit Court of Appeals, plaintiffs alleging claims for unpaid overtime under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL) must provide sufficient factual detail as to their claims to survive Twombly/Iqbal challenges. The Second Circuit first set forth this pleading standard in Lundy v. Catholic Health Sys. of Long Island, 711 F.3d 106 (2d Cir. 2013), in March 2013. In Lundy, the Second Circuit held that, in order to survive a motion to dismiss, a plaintiff must, at a minimum, sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in excess of the 40 hours. The Second Circuit declined to set any approximation of the total number of uncompensated hours in a given workweek a necessity in all cases, but noted that an approximation may help bring a plaintiff’s claim closer to plausibility. Otherwise, a plaintiff’s allegations “supply nothing but low-octane fuel for speculation, not the plausible claim that is required” under Twombly/Iqbal.
Ogletree Deakins • September 03, 2013
Sutherland v. Ernst & Young LLP, No. 12-304 (2d Cir. Aug. 9, 2013): In a significant victory for employers, the Second Circuit Court of Appeals endorsed class waivers of Fair Labor Standards Act (FLSA) claims even if such waiver removes the financial incentive to pursue individual wage and hour claims. The holding reversed the U.S. District Court for the Southern District of New York and was consistent with the recent decision by the U.S. Supreme Court in American Express Co. v. Italian Colors Restaurant, which held that the Federal Arbitration Act does not permit courts to invalidate a contractual waiver of class arbitration on the ground that the plaintiff’s cost of individually arbitrating a federal claim exceeds the potential recovery
Fisher Phillips • July 26, 2013
The U.S. Labor Department has signaled for some time now that it considers shame and ostracism to be enforcement tools. USDOL's Wage and Hour Division has taken another step in this direction by seeking entries in a contest to develop a smartphone application providing "consumers with information . . . about which businesses have treated their workers fairly and lawfully . . .."
Nexsen Pruet • July 19, 2013
No one enjoys being the center of attention when that attention is coming from federal regulators. Yet that’s where franchise systems have found themselves of late – especially in the hospitality sector, which accounts for roughly one-third of franchise systems. The Wage and Hour Division of the U.S. Department of Labor (DOL) has focused increasingly on hospitality-related businesses such as restaurants and hotels, looking specifically for violations of the Fair Labor Standards Act (FLSA).
Ogletree Deakins • July 15, 2013
Although employers are often ambivalent, if not negative, about federal involvement in the workplace, there are time when it is beneficial.
Fisher Phillips • June 03, 2013
There has always been a great deal of mistaken conventional wisdom afoot where the federal Fair Labor Standards Act is concerned. We have blogged previously about the common misconception that one pay practice or another has just got to be lawful, because "everybody does it" that way.
Fisher Phillips • May 16, 2013
The best answer to our May 8, 2013 Quick Quiz is, "$110.00". In declining percentage order, the responses were:
Fisher Phillips • May 09, 2013
The Big Corporation decides that it will start paying its Field Service Technicians on a day-rate basis, instead of on an hourly basis. Under the day-rate plan, a Technician will now receive a fixed amount of money for each workday in which he or she performs any work, regardless of the number of hours the Technician works in the workday. The day-rate payments represent compensation for all hours worked in a workday and in a workweek.
Fisher Phillips • April 04, 2013
A decision from the Seventh Circuit U.S. Court of Appeals (with jurisdiction over Illinois, Indiana, and Wisconsin) offers an important reminder to employers about the potential for successor liability under the federal Fair Labor Standards Act.
Fisher Phillips • February 21, 2013
Readers will recall our January post concerning the U.S. Labor Department's announced intention to "to collect information about employment experiences and workers' knowledge of basic employment laws and rules so as to better understand employees' experience with worker misclassification." As we said then, this is likely to be a precursor to a renewed "Right to Know" initiative.
Fisher Phillips • January 21, 2013
As we speculated in November, the U.S. Labor Department apparently does intend to reinvigorate its so-called "Right to Know" initiative. This vague and ambiguous proposal first surfaced in 2010 but was eventually shelved. USDOL has now announced its intention to conduct a survey "to collect information about employment experiences and workers' knowledge of basic employment laws and rules so as to better understand employees' experience with worker misclassification."
Franczek Radelet P.C • January 21, 2013
Iowa is the latest State to sign a Memorandum of Understanding and join forces with the U.S. Department of Labor to combat employee misclassification. Although Labor Secretary Solis has announced her resignation, it appears that the Misclassification Initiative that she championed continues, at least for now.
Fisher Phillips • January 18, 2013
The best answer to our January 9 Quick Quiz is, "$200". In declining percentage order, the responses were:
Fisher Phillips • January 10, 2013
Gloria is a stock clerk for The Warehouse Company. She is paid on an hourly basis at the rate of $8.00 per hour.
Fisher Phillips • December 26, 2012
Readers will recall our earlier posts (accessible here) relating to the U.S. Labor Department's proposed regulatory revisions that would significantly limit the application of the federal Fair Labor Standards Act's Section 13(a)(15) exemption for companions. While the period for public comment on these proposals closed in March, a letter from an organization representing the interests of the disabled community, the National Council on Disability, demonstrates that it might not be too late to influence the outcome through other avenues.
Fisher Phillips • November 13, 2012
Now that the election is behind us, employers should consider what they might anticipate in the field of wage-hour law, which is already one of the largest sources of employment-law claims. While the nature and number of the possible developments are practically unlimited, some of the foreseeable ones include these:
Goldberg Segalla LLP • November 02, 2012
At 2:00 a.m. on Sunday, November 4, 2012, people all across the United States turn their clocks back one hour to end Daylight Saving Time (DST). Daylight Saving Time is intended to place more sunlight into “daytime” hours in order to seemingly stretch the day longer and conserve energy. In fact, 2012 marks the sixth year DST was expanded by four weeks pursuant to the Energy Policy Act of 2005.
Fisher Phillips • November 01, 2012
In thinking-through and implementing their recovery plans in the wake of Hurricane Sandy, employers will want to review our August post summarizing a number of federal Fair Labor Standards Act issues that typically arise following a natural disaster.
Fisher Phillips • September 27, 2012
Readers will recall that, in 2010, the U.S. Labor Department announced that it would pay particular attention to multi-party business arrangements that it sees as obscuring or diluting responsibility for complying with the federal Fair Labor Standards Act. USDOL's "fissured industry" enforcement effort seeks to tie together all of the participants, including subcontractors, vendors, suppliers, and the like.
Fisher Phillips • August 30, 2012
Recurring wage-hour issues tend to arise during the recovery from a natural disaster. We posted the following item last year in connection with Hurricane Irene, and the points are equally relevant this time around:
Fisher Phillips • August 28, 2012
Various websites now provide questionnaires, checklists, programs, decision-trees, and so on to guide an employer in trying to decide who qualifies as an exempt executive, administrative, professional, or outside-sales employee under the defining federal Fair Labor Standards Act regulations. These tools are fine as far as they go, but their usefulness is normally very limited.
Fisher Phillips • August 10, 2012
Recently introduced legislation proposes to exempt "any employee employed in insurance claims adjusting" from the federal Fair Labor Standards Act's overtime requirements under certain circumstances. Under H.R. 6346 (link to available version below), introduced by Representative Denny Rehberg (R-MT) and Representatives Jo Bonner (R-AL) and Alcee Hastings (D-FL), these adjusters would be exempt while performing specified insurance-claims work under particular conditions following a "major disaster", including natural catastrophes (such as a hurricane, tornado, earthquake, or blizzard) or fires, floods, or explosions.
Ogletree Deakins • July 30, 2012
After lamenting for some time the direction which FLSA law has been heading, it may be too soon to say that the inevitable swing back to the middle has begun, but there are encouraging signs and last week's decision in Martin, et al v. Spring Break '83 Prodn, L.L.C (5th Cir. 7.24.12) is yet another step.
Franczek Radelet P.C • July 27, 2012
I read this morning that there have been 7,064 lawsuits filed under the Fair Labor Standards Act so far this year. I believe this is a record for wage and hour violation claims and the year is only half over. This is also nearly sixty more FLSA lawsuits than was filed in all of 2011 and more than double the amount of cases filed ten or twelve years ago. The Department of Labor’s wage and hour division alone has collected a record $224 million from employers over the last fiscal year, and is continuing its campaign against misclassification of employees, including its cooperation with other federal and state agencies in going after employers who misclassify workers. In other words, this issue is not going away for employers.
Fisher Phillips • July 12, 2012
The correct answer to our July 1 Quick Quiz is "$25".
Fisher Phillips • July 02, 2012
Anne is paid $1.50 for each remote-control device she assembles. This is her straight-time compensation for all of her hours worked in a workweek.
Franczek Radelet P.C • June 11, 2012
On June 4, the U.S. Department of Labor Wage and Hour Division announced that a San Antonio-based car wash company has paid $246,438 in back wages to 308 employees following a DOL investigation. Among other things, the DOL found that the company had taken illegal deductions from employees paychecks for items including uniforms, insurance claims, and cash register shortages that resulted in employees' pay falling below the federal minimum wage.
Fisher Phillips • June 08, 2012
Once upon a time, a seriously-alarmed legislative body concluded that wage-hour claims and litigation had gotten out-of-hand.
Fisher Phillips • June 01, 2012
A compressed schedule colloquially called a "9/80" pay plan seems to be making a comeback. Under this arrangement, the federal Fair Labor Standards Act "workweek" and the schedule for non-exempt employees are set so that the employees work:
Fisher Phillips • June 01, 2012
Under regulations proposed by the Federal Acquisition Regulatory Council ("FARC"), a federal contractor taking on a new service contract would be required to offer jobs to the qualified employees of its predecessor in that work. The proposal would implement Executive Order 13495 on "Nondisplacement of Qualified Workers Under Service Contracts". This Executive Order mandates that, when a service contract expires and a follow-on contract is awarded for the same or similar services at the same location, the newly-awarded contract must include a clause obligating the contractor to make these job offers to the predecessor's workers.
Fisher Phillips • April 30, 2012
Readers of our earlier post have asked whether there are additional ways to control or even reduce labor costs consistently with the federal Fair Labor Standards Act. There are, and we will again divide our discussion between mistaken beliefs and possible opportunities.
Fisher Phillips • February 07, 2012
Betty works for The Big Store as a non-exempt Accounts-Payable Clerk. She is assigned to help with taking a merchandise inventory over one weekend, and she works a total of 60 hours in that workweek.
Franczek Radelet P.C • November 07, 2011
You're a savvy employer. Your timekeeping policies are clear. Your employees know that they are required to report all of their work time. Employees sign off on their time records each week. You even provide a procedure for employees to confidentially report any improper actions by their supervisors. Your records are complete, organized, and show that you've fully compensated your employees for all reported work hours. But what happens when an employee claims that his supervisor instructed him not to report overtime unless it was authorized in advance, and to record unpaid lunches even on days that he worked through his lunch break? As a recent ruling from a federal district court in Idaho illustrates, even following best practices with respect to recordkeeping compliance won't necessarily preclude an employee from taking a claim for unpaid overtime to a jury.
Franczek Radelet P.C • October 26, 2011
Check out my article in the October 2011 issue of Cleaning & Maintenance Management. While focused on the cleaning and maintenance industry, the issues highlighted in the article are generally applicable to a wide range employers.
Fisher Phillips • October 06, 2011
Affected employers will no doubt have a variety of wage-hour questions in the aftermath of any major disaster, such as Hurricane Irene. The number and scope of the issues raised might well be practically endless. In this article, we'll address in very general ways the federal Fair Labor Standards Act topics that experience suggests will be among the most pressing.
Ogletree Deakins • September 15, 2011
Three times a year, my good friend Connie Cornell and I give a presentation called Essential Employment Law for our law school alma mater's continuing legal education program.
Franczek Radelet P.C • September 02, 2011
Recently the U.S. Department of Labor revamped its enforcement data website, http://ogesdw.dol.gov/, adding some snazzy new map displays showing inspection and violation data from OSHA and the Mine Safety and Health Administration.
Fisher Phillips • August 30, 2011
Affected employers will no doubt have a variety of wage-hour questions in the aftermath of Hurricane Irene. The number and scope of the issues raised might well be practically endless. In this post, we address in very general ways the federal Fair Labor Standards Act topics that experience suggests will be among the most-pressing.
Jones Walker • July 28, 2011
Are Your Loan Officers Properly Classified Under the FLSA?
Franczek Radelet P.C • May 10, 2011
On May 9, 2011, the U.S. Department of Labor announced a free smartphone application designed to help employees independently track the hours they work and wages they are owed. The app allows users to enter their daily work hours manually or automatically using a timer, and to view and e-mail time reports. The DOL's press release makes it clear that the Department intends to use information employees record through this app in its enforcement efforts:
Ogletree Deakins • May 10, 2011
This is clearly a first for this blog. A link to the apple app store.
Franczek Radelet P.C • April 13, 2011
Last week, the U.S. Department of Labor (DOL) issued a final rule updating regulations issued under the Fair Labor Standards Act (FLSA) and Portal-to-Portal Act. The rule takes effect 30 days after publication.
Fisher Phillips • April 08, 2011
Earlier this week, the U.S. Labor Department's Wage and Hour Division published a "Final Rule" entitled, "Updating Regulations Issued Under the Fair Labor Standards Act." This document (which affects not only "regulations" but also interpretative provisions of lesser status), addresses a number of subjects. These topics include (among others) fluctuating-workweek pay plans, the impact of previous changes in the minimum wage, the tip credit available for tipped employees, and the exemption status of certain employees in automobile dealerships. The "Final Rule" is effective on May 5, 2011.
Ogletree Deakins • April 07, 2011
In July 2008, the Department of Laborâ€™s Wage and Hour Division (WHD) published proposed rules that would change several regulations issued under the Fair Labor Standards Act (FLSA) and the Portal-to-Portal Act, including tip credit, fluctuating workweek, compensatory time, commuting, and other provisions. The proposed rules were not finalized during the previous Administration; however, a final rule was published in the Federal Register on April 5, 2011, and will take effect in 30 days.
Franczek Radelet P.C • February 23, 2011
Over the past decade, employers in almost every industry have faced an increasing number of wage and hour lawsuits. Employers in hospitality, heavy and light manufacturing, health care, retail, pharmaceuticals, and agriculture have seen a significant uptick in the number of wage and hour class action lawsuits filed by current and former employees. Unfortunately, this trend will likely continue following a recent decision by the Seventh Circuit in Erwin v. OS Restaurant Serv., which opens the door for plaintiffs to bring state wage and hour class actions in the same lawsuit as federal claims under the Fair Labor Standards Act (FLSA).
Nexsen Pruet • February 16, 2011
With the recent winter storms that blanketed the Carolinas â€“ and with more likely to come â€“ this is a good time for employers to review their inclement weather policies and to make sure they properly compensate all employees who miss work because of adverse weather.
Fisher Phillips • February 04, 2011
The first question often asked by new employees or job applicants is "what is my rate of pay?" In this economy, more than ever, your response is critical to employees and may be closely scrutinized. For legal and practical reasons, employers should obviously be accurate and careful in responding, especially where various differentials, specialty pay, on-call pay, clinical ladders, special pool rates, bonuses, and other bells and whistles could potentially give rise to legal claims. Setting and tracking the regular rate of pay for non-exempt employees forms the foundation for establishing lawful payroll practices.
Fisher Phillips • January 17, 2011
The boom in wage-hour complaints and lawsuits continues unabated. Long-held conventional wisdom that might be questionable or even mistaken under the federal Fair Labor Standards Act or analogous laws now faces unprecedented scrutiny. It is tempting to take comfort in platitudes like, "The whole industry pays employees that way," "Everybody I know of treats those positions as exempt," "All of my competitors classify these kinds of workers as independent contractors," and so on.
Fisher Phillips • December 22, 2010
The U.S. Labor Department has now published what it calls its "preliminary interpretations" and a request for information regarding the federal Fair Labor Standards Act lactation-break amendment we wrote about in April and July. The deadline for submitting information and comments is February 22, 2011. Employers should give serious consideration to weighing-in on these "preliminary interpretations".
Fisher Phillips • December 01, 2010
One might think that the risk of a wage-hour lawsuit can't get any higher, but it will soon increase even more. Vice President Biden and the American Bar Association recently announced that, starting December 13, the U.S. Labor Department will provide a toll-free number to connect people who have made federal Fair Labor Standards Act complaints with an ABA-approved attorney-referral service to help them find a qualified lawyer to handle their claims. It appears that the Labor Department will do this on matters it concludes it cannot pursue given its limited resources.
Fisher Phillips • November 23, 2010
In all her 20 years in human resources, Janice has never seen anything like it. Bigtime Electronics fired its Production Manager Fred Smith last week, and now his lawyer has sent Janice a letter demanding that Fred be paid more than $20,000 for overtime worked during his employment. Fred clearly met the requirements for exemption from overtime under federal and state wage-hour laws.
Fisher Phillips • October 25, 2010
Tucked away in a recent U.S. Labor Department e-newsletter was the announcement of a new "Work Hours Calendar." It is a time-tracking document that the Wage and Hour Division urges workers to maintain separately from the employer's official records. According to the newsletter:
Fisher Phillips • October 01, 2010
The federal Fair Labor Standards Act turns 72 years old this year. Even though today's working world is radically different from that of 1938, the FLSA's principles remain largely unchanged and have become increasingly counterproductive in a global economy. Many believe that it is imperative to harmonize this strict, unforgiving law with modern realities, including by making it more flexible, more adaptable, and better-attuned to the practical concerns and preferences of present-day employers and employees.
Fisher Phillips • October 01, 2010
At the same time human-resources professionals are wondering how they can keep up with the work necessitated by existing employment laws, Senators Bob Casey (D. PA). and Tom Harkin (D. IA) have introduced S. 3840 to "permit employees to request, and to ensure employers consider requests for, flexible work terms and conditions . . .." This objective sounds benign enough; as usual, the devil is in the details, many of which would be supplied by what would no doubt be extensive regulations prepared by the U.S. Labor Department.
Fisher Phillips • August 13, 2010
When U.S. Wage and Hour Division investigators conclude that back-wages are due under the federal Fair Labor Standards Act, at some point they present the employer with a completed Form WH-56, called a "Summary of Unpaid Wages". This document reflects a variety of information, including the names of each individual the investigator believes should receive a payment and the amount of this payment.
Ogletree Deakins • August 04, 2010
Unfortunately for companies that operate in more than one state or are intently focused on the Fair Labor Standards Act, the answer is no.
Fisher Phillips • July 30, 2010
The U.S. Labor Department has released its general views about the meaning of the federal Fair Labor Standards Act's new lactation-break requirement that was the subject of our April 1, 2010 post. You will recall that FLSA-covered employers must now grant breaktime to a worker for the purpose of expressing breastmilk for her nursing child.
Franczek Radelet P.C • July 29, 2010
Recently, the U.S. Department of Labor (DOL) released general information to guide employers on the break time requirements for nursing mothers in the Patient Protection and Affordable Care Act (“Act”), which became effective on March 23, 2010, and amended Section 7 of the Fair Labor Standards Act (FLSA). The Act requires employers to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” Employers must also “provide a space, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”
Fisher Phillips • July 26, 2010
The U.S. Labor Department has released its general views about the meaning of the federal Fair Labor Standards Act's new lactation-break requirement that was the subject of our April 1, 2010 post. You will recall that FLSA-covered employers must now grant breaktime to a worker for the purpose of expressing breastmilk for her nursing child.
Ogletree Deakins • June 15, 2010
A new amendment to the Fair Labor Standards Act (FLSA) contained in Section 4207 of the Patient Protection and Affordable Care Act of 2010 (PPACA) provides that employers must offer "reasonable breaks" for nursing mothers. Under the new law, an employer must provide "a reasonable break time for an employee to express breast milk for her nursing child for [one] year after the child's birth each time such employee has need to express the milk."
Fisher Phillips • May 05, 2010
Lurking in Senate and House "misclassification" bills are expansive changes in the Fair Labor Standards Act's civil money penalties. The impact of these revisions would extend far beyond U.S. Labor Department investigations involving independent-contractor status.
Ogletree Deakins • May 03, 2010
Seth Harris, the number two person in the Department of Labor, has announced the intention of the DOL to require employers to adopt compliance plans "aimed at ensuring they do not violate wage, job safety and equal employment laws," according to Steve Greenhouse's report in yesterday's New York Times, U.S. Outlines Plan to Curb Violations of Labor Law.
Fisher Phillips • October 02, 2009
Employees are working longer and harder to ensure that they keep the jobs they have. With unemployment hovering around 9.5% nationally and up to 13% in states such as Michigan, employees are doing what they can to stand out and avoid being cut in unfortunate, but sometimes necessary layoffs.
Ogletree Deakins • August 05, 2008
Employers should be aware of two key developments in the wage and hour arena - a federal minimum wage hike (effective July 24, 2008) and an increase in civil penalties for child labor law violations (effective May 21, 2008). Below is a brief summary of each of these developments.
Nexsen Pruet • April 21, 2008
Preparing for FLSA Investigations.
Fisher Phillips • August 15, 2007
As hospitals compete for an ever-tighter supply of registered nurses (RNs), they carefully track compensation practices in their markets. Despite bonuses, creative pay plans, flexible schedules and in-house staffing pools, however, most hospitals have also had to use high-priced nursing agencies at one time or another. These agencies temporarily lease nurses to hospitals that are unable to meet all of their staffing needs with their own employees.
Fisher Phillips • May 29, 2007
It may not seem obvious, but statistically speaking, the height of an average American male is usually reported as 5’9". Do most people seem taller than that? According to various studies, only 15% of all American men are 6’ tall or more. Yet 42% of all American presidents have been 6’ or over, 58% of CEOs are over six feet tall, and a whopping 90% of CEOs are at least above average height.
Fisher Phillips • February 13, 2007
Many hospitality employers are building up potentially enormous wage-hour liability day-by-day without even knowing it, because they are not aware of or misunderstand the rules on identifying and recording employee work time.