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Reimbursing Employees for Business Expenses: The FLSA Kickback Rule [Wage & Hour FAQs]

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.

Some Additional Thoughts on "Half-Time" Overtime: The Fluctuating Workweek Method

Last week, we discussed the fluctuating workweek method and its possible benefits. Remember that the fluctuating workweek method is not a "save lots of overtime expenses method." Employers who use the fluctuating workweek to clamp down on overtime expenses often end up shifting those expenses from the payroll budget to the litigation budget.

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

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

"Half-Time" Overtime: The Fair Labor Standards Act's Fluctuating Workweek Method [Wage & Hour FAQs]

In the past, we have discussed how to calculate paying overtime to salaried, non-exempt employees, including those employees who also receive commissions. One area that we have not touched on is a potentially employer and employee friendly method of calculating overtime that is nonetheless fraught with some risk: the fluctuating workweek. As you know if you read us regularly, simply paying an employee a salary does not mean that the employee is automatically “exempt” from the Fair Labor Standards Act (FLSA) overtime requirements, or parallel requirements in state and (increasingly) local law. Paying an employee on a salary basis is just one part of the test for exemptions, as we have explained in our recurring Wage and Hour Basics series.

"Predictable Scheduling" Concept Gaining Momentum

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.

Restaurant Industry Alert: "Fight for $15" Planned for Tax Day

Executive Summary: In the latest move in their two-year campaign to raise the minimum wage to $15 per hour, fast-food workers have announced plans for a major one-day walkout on April 15, 2015 – Tax Day for U.S. employers. Events are planned in approximately 200 U.S. cities as well as at least 40 other countries. In addition to fast-food workers, organizers claim the April 15 Fight for $15 will include workers from other industries including retail, child care, and airport workers as well as adjunct college professors. The movement has been spearheaded by the Service Employees International Union and is supported by several community action groups. With thousands of fast-food workers in the U.S. expected to take part in the one-day strike, employers in the fast food industry would be wise to make sure they are prepared to respond appropriately to these efforts.

9th Circuit Splits with 4th, 5th Circuits, Finds Auto Dealer Service Advisors Not Exempt Under FLSA

Reversing a district court decision, and declining to follow decisions from a number of other courts, including the Fourth and Fifth Circuits, the Ninth Circuit has deferred to the Department of Labor's (DOL) "flip-flopped" view of whether the FLSA's exemption for "any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles," applies to auto dealer service advisors/service writers.

Must Management Justify Treating Exempt Employees As Non-Exempt?

For years, The Big Corporation has treated its Department Supervisors as meeting all of the requirements for the executive exemption from the federal Fair Labor Standards Act's minimum-wage and overtime requirements. However, TBC's CEO has now concluded that, for a variety of reasons, it makes more business sense to treat them as non-exempt employees, including paying them by-the-hour.

Lesser Known Exemptions: The "Ministerial" Exception to the FLSA

Last week, in my post about the impact of the various iterations of the Religious Freedom Restoration Act (RFRA) on wage and hour law, we discussed the general rule that the FLSA does not contain blanket exceptions or exceptions for religious entities or individuals, with only a few exceptions. One potential caveat to this rule is an FLSA exception for ministers and clergy, the so-called “ministerial” exception.

Ninth Circuit Finds Auto 'Service Advisors' Not Exempt Under FLSA

In Navarro v. Encino Motorcars, LLC (9th Cir. Mar. 24 2015), the U.S. Court of Appeals for the Ninth Circuit addressed an issue of first impression in the Circuit: whether individuals who worked for automobile dealerships as “service advisors” were exempt from the Fair Labor Standards Act’s (“FLSA”) overtime premium pay requirements. In reversing the district court’s decision, the Navarro court held the FLSA's exemption for automobile dealership salesman, partsman, and mechanics did not apply to service advisors.