Total Articles: 199
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.
XpertHR • August 03, 2017
An overpayment of wages can occur for many different reasons, such as inaccurate or delayed payroll processing, inaccurate accruals upon an employee’s termination, payroll system failure or simple clerical error. Regardless of why the overpayment occurred, the employee is not entitled to keep the extra cash, and the employer is legally entitled to recoup the amount in full.
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.
By now you’ve undoubtedly heard about monumental changes to the Fair Labor Standards Act (FLSA) taking effect in December 2016, but the actual impact of those changes on your business and the potential consequences if the transition isn’t handled properly remain firmly on the horizon.
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.
Brody and Associates, LLC • March 16, 2016
Most companies have a girl or guy Friday (“Friday”) who does everything. While this employee is essential to your company, the question is do you pay him or her a salary or by the hour? In most cases, the answer should be by the hour. And if he/she works over 40 hours a week, a mistake can really add up.
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.
XpertHR • February 29, 2016
You probably know that today is Leap Day and that 2016 is a leap year, which occurs every four years. According to 5th century Irish tradition, leap year is a good year for women to make marriage proposals to men. However, according to the ancient Greeks, it is unlucky for couples to marry during a leap year. And, while ancient Chinese tradition claims that leap year babies – “leaplings” – are unlucky and poorly behaved, other cultures believe exactly the opposite.
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.
XpertHR • January 21, 2016
With a major winter storm threatening to hit much of the East Coast, now is a great time to review wage and hour requirements for paying employees should it become necessary to close a work site.
XpertHR • December 23, 2015
President Obama has signed an omnibus appropriations bill (H.R. 2029) that will significantly impact payroll operations. The Protecting Americans From Tax Hikes Act of 2015 (PATH Act), which represents half of the bill, permanently extends parity between qualified (tax-free) employer-provided parking and commuter benefits and substantially revises the rules for filing Forms W-2, Wage and Tax Statement, and 1099-MISC, Miscellaneous Income. The Consolidated Appropriations Act of 2016, which is the other half of the omnibus bill, amends the Affordable Care Act.
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.
XpertHR • December 16, 2015
HR directors can take comfort in a new federal appeals court ruling that protects them from being fired in retaliation for reporting about their employer's failures to comply with the Fair Labor Standards Act (FLSA) - but only if they are not actually responsible for ensuring compliance with the FLSA.
XpertHR • November 18, 2015
The owner of a chain of Papa John's franchises in New York City who failed to pay overtime to his employees has been sentenced to 60 days in jail.
XpertHR • October 27, 2015
Paying employees via paycard is a relatively new electronic method of wage payment that many employers have gradually embraced. The main reason for the growing popularity of these pre-loaded debit cards is that they fill the need for an electronic wage payment alternative to costly and inefficient paper paychecks for employees who are either unable, or hesitant, to obtain a bank account that can accept direct deposits.
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."
Phelps Dunbar LLP • June 08, 2015
In 2012, the Fifth Circuit decided Martin v Spring Break ’83, LLC, 688 F.3d 247 (5th Cir. 2012), holding that private settlements of FLSA claims involving bona fide disputes over hours worked or compensation owed are enforceable absent court supervision.
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.
Get ready, employers. New Fair Labor Standards Act (FLSA) regulations are coming soon.
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.
Phelps Dunbar LLP • January 16, 2015
On January 13, 2015, the Florida Department of Revenue and the U.S. Department of Labor entered into a Memorandum of Understanding (“MOU”) whereby these agencies will work together to reduce the misclassification of employees as independent contractors. While the MOU has not yet been made public, the Department of Labor issued a press release discussing the agreement. At the core of the MOU is the agreement that the state and federal agencies share information and coordinate law enforcement in investigation and litigation of misclassification claims. According to the agencies, the MOU will further the dual purposes of protecting the rights of employees and leveling the playing field for employers who properly classify employees.
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.
Brody and Associates, LLC • November 04, 2014
This year, we have reported on President Obama’s Executive Orders raising the minimum wage for federal contractors, prohibiting retaliation against workers who share their salary information, and prohibiting LGBT (lesbian, gay, bisexual and transgender) discrimination against federal employees and those who work for federal contractors. President Obama recently signed another Executive Order, this time requiring companies bidding on federal contracts to disclose certain labor law violations.
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.
Brody and Associates, LLC • October 30, 2014
You may know you can face significant monetary penalties for not paying your workers minimum wage and overtime as required by law. But did you know you can also face arrest and jail time for these violations?
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.
Phelps Dunbar LLP • September 24, 2013
The Consumer Financial Protection Bureau (CFPB) has published a bulletin reminding employers that they cannot require their employees to receive wages on a payroll card. The bulletin also explains some of the federal consumer protections that apply to payroll cards, such as fee disclosure, access to account history, limited liability for unauthorized use, and error resolution rights.
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:
Brody and Associates, LLC • November 08, 2012
Hurricane Sandy has passed but her wake is still overwhelming for many. Once employers know their families are safe, they turn back to their businesses, many of which are struggling to maintain day-to-day operations. In the midst of all this, employers should be aware of the myriad of wage payment issues that may arise.
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.
Brody and Associates, LLC • October 24, 2012
Wage-and-hour cases are big business. The number of wage-and-hour cases in federal court has more than tripled over the last decade. These cases are in addition to the rising number of agency actions at both the state and federal levels, as wage-and-hour enforcement becomes a cash cow for strained government budgets. Agencies are imposing larger penalties for unintentional offenses, even by first-time offenders.
Brody and Associates, LLC • October 12, 2012
According to Martin v. Spring Break ’83 Productions, LLC, a Fifth Circuit Court decision, private Fair Labor Standards Act (“FLSA”) settlements may be allowed without the approval of either the Department of Labor (“DOL”) or the court. If followed, this is a major advancement for employers who want to quietly resolve wage-and-hour disputes.
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.
Brody and Associates, LLC • August 21, 2012
On July 19, 2012, a federal district court held in Salz v. Casey’s Marketing Company, that a claim for violation of an employee’s lactation rights had to be brought through a complaint with the Department of Labor as opposed to the courts, but a constructive discharge and retaliation claim was properly brought in court.
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.