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Union Agreement to Arbitrate "Sleep-In" Wage and Hour Claims Applies Even Though Agreement Was Signed After Lawsuit Began

Executive Summary: In Lai Chan et al. v. Chinese-American Planning Council Home Attendant Program, Inc., decided February 3, 2016, the Southern District of New York (covering New York, Bronx, Westchester, Rockland, Putnam, Orange, Dutchess, and Sullivan counties) deferred to arbitration the unpaid wage and overtime claims of sleep-in workers covered by a union agreement, even though the agreement to arbitrate was signed after the lawsuit alleging these claims against the home care agency was commenced. An earlier decision in this same case from the New York County Supreme Court had denied the agency's motion to dismiss the complaint, and volunteered that under New York Labor Law, sleep-in workers must receive wages for 24 hours of work. This question will now be decided in arbitration, not in a court action.

A New And More Flexible Approach To Internship Programs

Class action lawsuits filed by interns who claim they should be classified as employees have proliferated over the last few years. In these types of cases, a large number of interns have argued that they were actually entitled to be paid wages under federal and state laws.

DOL Issues Administrative Interpretation Broadening Test for Joint Employment

Earlier this week, the federal Department of Labor issued a new administrator’s interpretation (No. 2016-1) providing “additional guidance” for determining when an employee is considered “jointly employed” by two or more employers for purposes of the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Workers Protection Act (MSPA).

"Constructive Knowledge" Off-The-Clock Claim Rejected

Another federal appellate court, this time the Fifth Circuit U.S. Court of Appeals (with jurisdiction over Mississippi, Louisiana, and Texas) has rejected an employee's claim to have been entitled to federal Fair Labor Standards Act overtime compensation for unreported hours worked over 40 in a workweek. Readers will recall our 2012 post discussing a decision from the Tenth Circuit saying that, under the right circumstances, an employee's failure to report all hours worked can be fatal to such an "off the clock" claim.

The Supreme Court Will Decide Service Advisor's Exempt Status

Dealerships will soon get a decisive ruling from the U.S. Supreme Court about an issue that has become a thorn in the side for many dealers. The issue: whether Service Advisors are exempt from overtime requirements under Section 13(b)(10)(A) of the Fair Labor Standards Act (FLSA), which exempts “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers.”

New FLSA Exemption Rules - Coming In July?

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.

2nd Circuit Amends Unpaid-Internship Opinion

Readers will recall that, last July, the Second Circuit U.S. Court of Appeals (with jurisdiction over Connecticut, New York, and Vermont) adopted a "primary benefit" framework for determining whether a for-profit entity's unpaid intern is or is not an "employee" for purposes of the federal Fair Labor Standards Act.

Fifth Circuit: Employer Has Right to Mandate Employee Compliance with Overtime Reporting Procedures And Is Not Liable When Employee Fails to Follow Procedures

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).

Practical effect of DOL’s recent expansion of its “joint employer” analysis remains to be seen.

In a marked deviation from current regulatory standards and judicially accepted parameters of “joint employment,” the Wage and Hour Division (WHD) of the Department of Labor (DOL) issued – through Administrator David Weil – Administrator’s Interpretation (AI) No. 2016-1, setting forth its “guidance” for determining employees’ rights and employers’ obligations under the Fair Labor Standards Act. (The AI also addresses joint employment under the Migrant and Seasonal Agricultural Worker Protection Act. The MSPA and the FLSA differ substantively, but share the same definition of “employ.”)

Think Using a Temp Firm Solves Your FLSA Compliance Problems? Think Again, Says the DOL

On January 20, 2016, the Wage and Hour Division of the U.S. Department of Labor issued a new Administrator's Interpretation ("AI") on the issue of joint employment under the FLSA. What is joint employment?

Jackson Lewis P.C. | Massachusetts | Massachusetts Law To Prohibit Inquiries Regarding Prior Salary at Interview (February 01, 2016)

Jackson Lewis P.C. | California | California Court of Appeal Holds Employee’s Agreement to Reimburse Training Costs in Event of Resignation Does Not Offend Public Policy (February 02, 2016)

Littler Mendelson, P.C. | New York | Don't Get Lost in the Weeds: Medical Marijuana is Now Legal in New York (February 01, 2016)

Ogletree Deakins | Massachusetts | Can a Massachusetts Religious School Refuse to Employ a Worker in a Same Sex Marriage (February 01, 2016)

Franczek Radelet P.C | Illinois | Definition of “Deliberate and Willful” Misconduct Under the Illinois Unemployment Insurance Act Revised and Expanded (February 04, 2016)

Littler Mendelson, P.C. | New York | New York City Expands Human Rights Law to Prohibit Employment Discrimination Against Caregivers (February 01, 2016)

FordHarrison LLP | New York | HOME CARE PROFESSIONALS SERIES Part 1 – NYS Domestic Workers' Bill of Rights (February 02, 2016)

Franczek Radelet P.C | Illinois | Illinois Supreme Court Rules Educational Employers Are Not Required to Arbitrate “Do Not Hire” Designation (February 01, 2016)

Jackson Lewis P.C. | California | What California Retail Employers Need to Know About Accommodating Pregnancy (January 29, 2016)

Schulte Roth & Zabel LLP | New York | New York City Commission on Human Rights Issues Enforcement Guidance on Fair Chance Act and Clarifies Credit Check Law Exemption (February 04, 2016)