Does an employer’s business qualify as a “retail or service establishment” for the purpose of satisfying the exemption requirements of section 207(i) of the federal Fair Labor Standards Act? The answer to this question might have just changed based on the Department of Labor’s (DOL) recent regulatory action.
Articles Discussing Hours Worked Under The FLSA.
Timber Harvesting Company Cannot Escape Overtime Liability, But Commute and Meal Break Time Should Not Have Been Included, Sixth Circuit Holds
Rejecting employer Timberline South’s argument, among others, that FLSA coverage did not apply because all of its timber harvesting occurred only within one state, the Sixth Circuit Court of Appeals nevertheless concluded that the commuting and meal break times should not have been included in the trial court’s calculation of overtime damages. Secretary of Labor v. Timberline South, LLC, 920 F.3d 1065 (6th Cir. 2019). The Sixth Circuit includes the federal courts in Michigan, Ohio, Kentucky and Tennessee.
Third Circuit Reverses Class Certification of Unpaid Overtime Claims in Off-The-Clock Lawsuit
In Reinig v. RBS Citizens, N.A.,1 a three-judge panel of the U.S. Court of Appeals for the Third Circuit overturned a district court’s decision certifying a class of mortgage loan officers (“MLOs”) who claimed they were unlawfully denied overtime pay for work performed off-the-clock. This precedential decision is significant for three reasons:
Taco Bell’s Prohibition on Employees “Heading for the Border” With Discounted Meals Does Not Violate California Meal Break Law, Ninth Circuit Rules
Affirming a district court order dismissing a putative class action, the Ninth Circuit Court of Appeals has held that Taco Bell’s policy of requiring employees to eat employer-discounted meals in the restaurant does not convert the meal period into “on duty” time such that the meal period becomes compensable under California law. Rodriguez v. Taco Bell Corporation, 2018 U.S. App. LEXIS 19825 (9th Cir. July 18, 2018).
DOL Opinion Letters Providing Guidance on Travel Time and the Compensability of FMLA Protected Leave
Executive Summary: The Wage and Hour Division of the Department of Labor (DOL) issued two opinion letters today, April 12, 2018. One opinion addressed when employers must pay employees for travel time away from their homes and the second dealt with compensability of rest breaks covered by the Family and Medical Leave Act (FMLA). Essentially, the DOL stated that employers are not required to pay for travel time where an employee has no regular working hours if the employer uses one of the permissible methods for identifying the employee’s normal working hours in determining whether travel time is compensable. In another opinion, the DOL addressed the issue of FMLA-protected employees who need fifteen-minute breaks every hour. The DOL concluded that such large, frequent break times were non-compensable under both the FLSA and the FMLA because the breaks predominantly benefitted the employee. It noted, however, that these FMLA-protected employees must be compensated for break time provided to all employees, such as two fifteen-minute breaks per day.
Trump DOL Issues Opinion Letters on Compensability of Travel Time and Break Time Needed for Medical Reasons
Yesterday, the Department of Labor (DOL) under the Trump administration issued its first wage-hour opinion letters. Two of these opinion letters may be of general interest to employers and concern issues of (1) when an employee’s travel time must be compensated as hours worked under the Fair Labor Standards Act (FLSA), and (2) when break time taken by employees for medical reasons (protected by the FMLA) must be compensated under the FLSA.
Dear Littler: What Does Our Company Need To Do Before We Begin Using Biometric Timeclocks?
Dear Littler: We are going to replace the punch-card timeclocks in our U.S. facilities with timeclocks that allow employees to “clock in” each day using their fingerprint. I’ve read about a flood of recently filed class action litigation against companies that collected biometric information and understand that many of these cases have been filed against employers that use biometric timeclocks. Can we go ahead and roll out the timeclocks? Or is there something more that we need to do?
Refinery Workers’ Pre-Shift Wait Time Not Compensable, Fifth Circuit Holds
Concluding that the unstructured time spent by the plaintiffs between arriving at the oil refinery and the beginning of their shifts was not “integral and indispensable” to their duties erecting scaffolds at the refinery, the Fifth Circuit held that this time was not compensable under the FLSA. Bridges v. Empire Scaffold, LLC, 2017 U.S. App. LEXIS 22520 (5th Cir. Nov. 9, 2017).
Paying Employees When Weather Closes the Doors: A Refresher on Employer Obligations
As Hurricane Harvey continues to wreak havoc on Houston, Texas, and surrounding areas, undoubtedly, many businesses have been damaged or destroyed, while others have closed temporarily for safety and security reasons. These businesses may remain closed, or operate with limited hours, for days, weeks, or possibly months. When such closures occur as a result of nature’s forces, what are an employer’s obligations to continue paying its employees?
City of Chicago Not Liable for Police Officers’ After-Hours Smartphone Use, Seventh Circuit Affirms
The City of Chicago lacked either actual or constructive knowledge that members of the Chicago Police Department were performing after-hours work on their smartphones, the Seventh Circuit Court of Appeals has ruled, affirming a trial court’s earlier ruling that the City was not liable for this work under the Fair Labor Standards Act. Allen v. City of Chicago, 2017 U.S. App. LEXIS 14230 (7th Cir. Aug. 3, 2017). The Seventh Circuit has jurisdiction over Illinois, Indiana, and Wisconsin.
Do I have to pay employees to run a 5K? [Wage & Hour FAQ]
Q. Our company would like to enter a team in a local 5K charity race to do some good for the community and provide some positive PR for the company. Do we have to pay employees for time spent in this activity?
Inclement Weather FAQs: Who Gets Pay for a Snow Day?
As winter progresses, employers may find themselves monitoring the weather and wondering how to handle numerous operational headaches. Should a worksite close? If so: when, and for how long? Who can work from home, and who must be paid for what time? The kids may be hoping for a snow day, but employers know that winter weather creates a host of complications, including dangerous commutes and school closings, as well as delivery and service delays.
Unreported Working Lunches May Still Be Work Time
Back in December, we wrote about a case involving the Chicago Police Department, in which officers alleged that they were owed additional overtime for time spent responding to calls and messages on their Blackberry devices, but which they failed to report in accordance with Police Department procedures. The court ruled for the City, holding that while the officers may have worked hours for which they weren’t paid, the City was not liable because it did not have actual or constructive knowledge of the uncompensated work. It was a clear win for the City and for employers in general. But before anyone gets carried away, they should read a subsequent decision from another judge in the Northern District of Illinois that illustrates the limits of the idea that employers are not on the hook for work they don’t know about.
City Not Liable For Chicago Police Officers’ Blackberry Work Time
If a tree falls in the forest but there is no one around to hear, does it make a sound? If a non-exempt worker answers an e-mail message after hours on her Blackberry but fails to put in for overtime, has she performed compensable work? While I’m not aware of any firm legal authority on the first question, a recent ruling by the U.S. District Court for the Northern District of Illinois offers a detailed and instructive analysis of the second.
Fashioning Employee Schedules: Employees Question Compensation Practices
Technological advancements have impacted employee scheduling in certain industries. Notably, employers with access to real-time data that suggest the level of expected business on any given day may require employees to be “on call.” But, in a recent lawsuit against clothing retailer Forever 21, employees allege they’ve been subjected to “exploitative” scheduling practices regarding so-called “on call” shifts. Comparable suits have recently been filed against other fashion retailers like Victoria’s Secret and BCBG Max Azria, regarding similar policies.