Articles Discussing General Topics Under The FLSA.

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.

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.

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.

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).

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.

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.

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).

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).

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.

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.

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.

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.”

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.

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.

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.