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Labor Department Settles Overtime Pay Dispute with Its Own Employees

Executive Summary: The Department of Labor (DOL) has agreed to pay $7 million to resolve claims that it failed to pay overtime to thousands of its own employees. The settlement reached with the American Federation of Government Employees Local 12 (AFGE), which represents approximately 3,000 federal employees in the Washington metro area, brings closure to longstanding allegations claiming the DOL failed to properly compensate employees.

eLABORate: Interpretation of FLSA 'Tip Credit' Provision Continues to Unfold

A federal district court in the Southern District of Florida joined a growing number of district courts in holding that the Department of Labor’s interpretation of the “tip credit” provision of the Fair Labor Standards Act, 29 U.S.C. § 203(m), is invalid. See Aguila v. Corporate Caterers II, Inc., No. 1:15-cv-24350-KMM, 2016 WL 4196656, *1 (S.D. Fla. Aug. 9, 2016).

FLSA Conditional Certification Denied in NYS for 5,000 Home Care Workers

Executive Summary. In a case with far reaching implications, Cowell v. Utopia Home Care, Inc., 2:14-cv-00736-LDW-SIL, Magistrate Judge Steven Locke of the Eastern District of New York (covering Brooklyn, Queens and Long island) ruled that claims of failure to pay home care workers for hours worked and overtime are not suitable for a collective action where the workers' conditions of employment vary so much between different home care workers and even for the same worker when working for different patients. This could prove to be a very important decision for the home care industry in New York, which has been battered by collective and class action complaints by a very active plaintiff attorneys bar. Every home care agency in New York is a potential target because home care workers can recover double damages and their attorneys' fees if they prevail.

Private Citizens Can Sue For Violations of Federal Breast Feeding Law

In August 2012, we wrote that the U.S. District Court for the Northern District of Iowa held that there is no private cause of action to enforce the breast feeding provision of the Fair Labor Standards Act (“FLSA) in Salz v. Casey’s Manufacturing Co. That may no longer be true.

Federal Court In Florida Is Latest To Reject DOL Regulation, Finds FLSA Does Not Require That Employees Receiving Full Minimum Wage Retain All Tips

While Department of Labor regulations interpreting the FLSA remain the primary source of employer guidance regarding the Act’s requirements, they are not necessarily the final word on what federal wage law requires. This is so even where they have been subject to “notice and comment,” triggering a higher level of judicial deference.

DOL's Focus on Franchising Leads to Landmark Agreement With Subway

Subway, the nation's largest fast food franchise, has entered into a voluntary agreement with the US Department of Labor to encourage its 27,000-plus US franchisees to comply with the Fair Labor Standards Act (FLSA) and other federal labor laws.

"To Arbitrate, or Not to Arbitrate: That is the Question" – A Potential Uber Class/Collective Action Will Proceed in the Eastern District of Pennsylvania.

Pennsylvania recently weighed in on the increasing and developing wage violation litigation, albeit from a procedural perspective, involving Uber Technologies, Inc. (“Uber”). On July 21, 2016, United States District Court Judge Michael M. Baylson of the Eastern District of Pennsylvania denied Uber’s request to compel arbitration, and Uber’s separate request to stay the pending court action.

Fifth Circuit Enforces Delegation Clause, Directs Arbitrator to Determine Whether FLSA Case Should Be Arbitrated

In a recent ruling, the Fifth Circuit Court of Appeals reversed a district court’s refusal to enforce an arbitration agreement’s “delegation clause” requiring the determination of arbitrability to be decided by an arbitrator. Whether the arbitration agreement applied to an employee’s pre-existing Fair Labor Standards Act (FLSA) claim was a legitimate question, the court found but one that should be answered by an arbitrator and not a judge. Kubala. v. Supreme Production Services, Inc., No. 15-41507, Fifth Circuit Court of Appeals (July 20, 2016).

Individuals, Families, and Households and Those Who Jointly Employ Home Care Workers With Them are All Liable for Unpaid Overtime

Executive Summary: Claims by home care workers for unpaid overtime have risen steadily since the U.S. Department of Labor, in 2015, eliminated the federal overtime exemptions that allowed agency employers essentially to pay no overtime wage premiums. This has greatly affected agency employers In New York, who are increasingly seeing class action suits being filed against them. It has also affected individuals, families and households in New York who hire home care workers directly, especially when the home care worker is an agency-employer worker who is continued for extra hours in a workweek. Since 2010, the New York Domestic Workers Bill of Rights has required "direct-hire" employers of home care workers to pay overtime at time and one half the worker's regular rate. When an agency worker is continued for extra hours by an individual, family or household, both can be held liable for unpaid overtime on all hours worked over 40 in a workweek, regardless of who scheduled the hours. Beyond the agency and individual, family, or household, others who have the power, whether or not exercised, to hire, employ, or pay the worker, such as a child or relative who takes care of a client's affairs or an attorney acting under a power of attorney or as a legal guardian, conservator, or trustee, are also at risk of being held liable.

Seventh Circuit Issues Employer-Friendly Ruling on FLSA Tip Credit

The Fair Labor Standards Act has long provided that an employer may satisfy its federal minimum wage obligations for a tipped employee by applying the employee’s tips as a credit toward the minimum wage and, in doing so, directly pay such employee less than the general minimum wage. If the employer’s wages plus the employee’s tips do not equal or exceed the minimum wage, the employer must make up the difference. Moreover, in order to take advantage of the tip credit, the employer is required to notify its tipped employees that it is taking the tip credit and to provide certain information pertaining to the credit.