Total Articles: 59
Wrong Response To Pay Complaint Can Pose Big Risks
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.
Hospitality Industry Legal Alert: Tennessee Hotel and Motel Industry Targeted in Department of Labor Enforcement Effort
Executive Summary: The hotel and motel industry has long been an enforcement priority for the U.S. Department of Labor's Wage and Hour Division (WHD). Recently, however, the WHD has embarked upon a multiyear enforcement initiative focused on the hotel and motel industry in Tennessee. Regulators say they are finding "widespread noncompliance with the minimum wage, overtime and record-keeping provisions of the Fair Labor Standards Act (FLSA)."
Competing Payroll Tax Cut Bills Fail to Advance, Sets Stage for Possible Compromise
Neither side of the Senate was able to muster the 60 votes needed to advance their respective payroll tax cut bills on Thursday. The Middle Class Tax Cut Act of 2011 (S. 1917) introduced by Sen. Robert Casey (D-PA) failed by a 51-49 vote margin, while the Republican countermeasure introduced by Sen. Dean Heller (R-NV), the Temporary Tax Holiday and Government Reduction Act (S. 1931), failed by a vote of 20 – 78.
Littler's Tammy McCutchen Examines Department of Labor FLSA Enforcement Issues at Congressional Hearing
During a hearing on the Fair Labor Standards Act (FLSA) conducted by the House’s Subcommittee on Workforce Protections, former administrator of the DOL’s Wage and Hour Division (WHD) and current Littler Shareholder Tammy McCutchen outlined how the agency’s shift in regulatory and enforcement tactics have made complying with the FLSA increasingly difficult for employers, and suggested changes. Overall, McCutchen explained that the WHD has become more punitive during this Administration, is upending practices that have been in place “for decades,” and has focused its resources on extensive and often unnecessary enforcement actions instead of helping good faith employers comply with the law.
Even Best Practices Can't Always Ensure Quick Dismissal of Wage & Hour Claims
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.
Wage & Hour Issues in the Cleaning and Maintenance Industry
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.
Hurricane Irene Leaves Wage/Hour Questions In Her Wake
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.
Fact Checking Me -- Congressional Rollbacks of Pro-employee Legislation
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.
The End of the Four-Day Workweek
The four-day workweek is no more. Well, at least in Utah, reports NPR. Next week, Utah State employees will return to a traditional five-day workweek. The four-day workweek officially died last week but workers can ease their way into the grueling five-day schedule thanks to the Labor Day holiday.
Interesting Wage & Hour Enforcement Statistics
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.
Hurricane Irene Likely To Spur Wage Questions
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.
9th Cir. Opinion Is "Terrible" for Employers
The legal maxim, “bad cases make bad law” was applied in full in a recent decision by the Ninth Circuit. In Pitts v. Terrible Herbst, Inc., the plaintiff-employee, Gareth Pitts, filed a complaint in Nevada state court, alleging that his employer, Terrible Herbst, Inc., had failed to pay him and other similarly situated employees overtime and minimum wages in violation of the FLSA, state labor laws, and state breach-of-contract laws. The employee alleged a mere $88 in unpaid wages.
Eleventh Circuit Issues Important New Decision on Attorneys' Fees in FLSA Lawsuits
Executive Summary: According to a new decision by the U.S. Court of Appeals for the Eleventh Circuit, employers can avoid paying attorneys' fees in FLSA cases by, before judgment, paying the plaintiff(s) all wages claimed, plus an equal amount as liquidated damages.
Are Your Loan Officers Properly Classified Under the FLSA?
Are Your Loan Officers Properly Classified Under the FLSA?
AMENDMENTS TO THE FAIR LABOR STANDARDS ACT
Some California employers may have noticed that the federal Department of Labor (“DOL”) recently issued new regulations applicable to the Fair Labor Standards Act (“FLSA”). The DOL’s stated purpose is to provide clarification on certain regulations and to align the FLSA with other federal statutes. The following is an overview of the revisions pertaining to overtime and tips, as well as the corresponding law in California.
New US DOL Smartphone App Encourages Employees To Track Hours and Pay
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:
Now an iPhone App for Wage and Hour Litigation
This is clearly a first for this blog. A link to the apple app store.
FLSA Compliance: There's an app for that
The Wage-and-Hour Division of the Department of Labor (DOL) has released an app called "DOL-Timesheet." The app works on the iPad and iPhone but may later be released for Android and Blackberry.
Department of Labor Issues Updated FLSA Regulations
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.
DOL "Updates" Mangle Longstanding FLSA Principles
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.
The Department of Labor's update to FLSA regulations is a missed opportunity.
In July 2008, the Department of Labor’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.
KEEPING UP WITH WAGE-HOUR LAW IS HARD LABOR
The wage and hour area of employment law has been especially volatile recently. What employment lawyers thought was safe advice may be rendered stale by a new court opinion, law, regulation or opinion letter.
Seventh Circuit Allows Plaintiffs to Proceed with Federal Collective and State Wage and Hour Class Actions in the Same Lawsuit
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).
WAGE AND HOUR WINTER WONDERLAND: ARE SNOW DAYS PAID DAYS? (pdf)
With the recent winter storms that blanketed the Carolinas – and with more likely to come – 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.
Fog Still Shrouds The "Bridge To Justice"
The parameters of and processes associated with the DOL/ABA Bridge to Justice initiative remain neither transparent nor open, at least where employers are concerned. We have attempted to delve into these matters since posting our November and December comments.
"What's My Rate Of Pay?" The Answer May be Trickier Than You Think
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.
"Everybody Does It" Is A Bad Bet.
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.
DOL Releases Lactation-Break "Preliminary Interpretations", Seeks Comment.
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".
Independent Contracting Big Changes On the Horizon.
The federal Government Accountability Office estimated that employee misclassification cost the United States government $2.72 billion in tax revenue from Social Security, unemployment, and income taxes in 2006 alone. That was four years ago.
DOL/ABA Lawyer-Referral Program Threatens More FLSA Litigation.
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.
Care In Drafting Pay Documents Is Essential.
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.
Plan/Prevent/Protect.
How the Department of Labor's New Strategy May Affect the Wage and Hour Arena
mployer Beware: Employees Might Be Keeping Secret Records At DOL's Recommendation
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:
Compensation Becoming Everybody's Business
The federal government is insinuating itself into employers compensation matters. Employment compensation is the latest target in the federal governments cross-hairs. Washington has issued a gaggle of employment compensation reporting requirements and recommendations, including...
Support Grows For Overhauling FLSA's Principles
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.
"Flexible Work Terms and Conditions" Proposal: Yet Another Burden for Employers
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.
DOL Explains Reasonable Break Time and Facilities for Nursing Mothers
On July 15, the U.S. Department of Labor issued Fact Sheet #73 regarding the Fair Labor Standards Act's (FLSA) new break time requirement for nursing mothers, enacted as part of the Patient Protection and Affordable Care Act (PPACA). The PPACA took effect on March 23, 2010. Under this new law, employers are required to provide "reasonable break time for an employee to express milk for her nursing child for one year after the child's birth each time such employee has need to express the milk."
Be Careful About Signing Official Back-Wage Summaries.
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.
CBA-FLSA-State Law? Is It Like Rock-Paper-Scissors?
Unfortunately for companies that operate in more than one state or are intently focused on the Fair Labor Standards Act, the answer is no.
New Guidance on Law Requiring Breaks for Nursing Mothers.
Employers are affected by the health-care legislation, also known as the Patient Protection And Affordable Care Act, in numerous ways. One of the lesser-known parts of the Act is Section 4207, which amends the Fair Labor Standards Act (FLSA). Section 4207, also called Reasonable Breaks for Nursing Mothers, requires employers to provide nursing mothers reasonable breaks to express breast milk and a separate room where they can take the break for up to the first year after the childs birth. (See FLSA Now Requires Breastfeeding Breaks and a Place to Take Them).
DOL Publishes Guidance On FLSA Lactation-Break Requirement.
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.
Department of Labor Provides Guidance on Break Requirements for Nursing Mothers.
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 childs 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.
DOL Publishes Guidance On FLSA Lactation-Break Requirement.
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.
Employers Must Provide "Reasonable Breaks" For Nursing Mothers.
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."
LEGISLATIVE ALERT: Bills Threaten More FLSA Penalties.
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.
Proposed Legislation Focuses on Misclassification of Workers.
The Employee Misclassification Prevention Act, recently introduced in both House (HR 5107) and Senate (SB 3254), would amend the Fair Labor Standards Act by imposing additional record keeping and notice requirements. Specifically, employers would have to provide each hired individual written notification of the following:
Compliance Plans -- Showing How You Are Not Breaking the Law.
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.
Can Anything Be Done to Stop the Avalanche of Wage & Hour Litigation?
It is no secret that state and federal wage and hour
class actions have exploded over the last ten or so
years, becoming the largest and fastest growing
area of employment litigation. Unfortunately, the
plaintiffs bar is showing no signs of letting up as
plaintiffs continue to garner multi-million-dollar
settlements and jury awards. In 2009, the top ten
private wage and hour settlements under the Fair
Labor Standards Act totaled $363.6 million, a 44%
increase from 2008.
Business Not As Usual At Wage Hour Division.
Since President Obamas inauguration approximately 14 months ago, the Wage and Hour Division of the U.S. Department of Labor had seemed to be asleep: it had issued not a single opinion letter related to the Fair Labor Standards Act. This week, the sleeping giant finally awoke, and employers are unlikely to be pleased with the result. The Division announced that it would be departing from its longstanding practice of publishing opinion letters to provide fact-specific guidance to employers and employees. In the future, requests for opinion letters will be responded to by providing references to statutes, regulations, interpretations and cases that are relevant to the specific request, but without an analysis of the specific facts presented. The Division also withdrew a September 2006 opinion letter that had been favorable to finance industry employers regarding the exempt status of mortgage loan officers and similar positions.
Wage-Hour Pitfalls Rise In Fallen Economy.
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.
Wage & Hour Update: Out of State Residents Subject To California Labor Law While Working In California
If a company sends its out-of-state employees to work on an assignment in California, does the California Labor Code apply during the assignment? The answer, according to the federal Ninth Circuit in a case captioned Sullivan v. Oracle Corp., is yes.
DOL Proposes to "Clean Up" Fair Labor Standards Act Regulations.
On July 28, 2008 the
Department of Labor (DOL)
proposed another round of
revisions to its Fair Labor
Standards Act regulations.
Unlike the August 2004
revisions, which signifi cantly
altered the white collar
exemption regulations, the
stated goal of the latest
proposed revisions is merely to
clean up regulations that are
out of date due to subsequent
legislation and/or court
decisions. Among the proposed
revisions, the DOL seeks to:
Labor Department Update... Minimum Wage, Civil Penalties Increase.
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.
Preparing for FLSA Investigations (Video).
Preparing for FLSA Investigations.
Hospitals Again Accused Of Conspiring To Suppress Nurses Wages.
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.
$800 per inch?
It may not seem obvious, but statistically speaking, the height of an average American male is usually reported as 59". 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.
Wage and Hour Violations: An Employers Single Greatest Uninsured Risk.
Violations of the wage and hour provisions of the Fair Labor Standards Act (FLSA) and analogous state statutes are the single largest liability exposure for employers. Since 1997, wage and hour litigation has tripled while most other employment litigation has stabilized or declined. More wage and hour collective/class actions have been filed in recent years than all other types of employment class actions combined. Hope is not lost, however. Employers can take steps to avoid or at least mitigate wage and hour violations and resulting litigation.
Hospitality: Are Your Employees Records A Ticking Time Bomb?
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.
Wishing You Knew More About Wages? We can help. (pdf)
You asked us to tell you about wage and hour law.
