Labor & Employment Law

The U.S. Supreme Court Makes Life For Employers Even More Difficult --- Verbal Complaints Held To Be Protected Activity Under the Fair Labor Standards Act

Posted on March 30, 2011
On March 22, 2011, the United States Supreme Court held in Kasten v. Saint-Gobain Performance Plastics Corp., that the Fair Labor Standards Act ('FLSA') prohibits employers from retaliating against employees who make verbal, as well as written, complaints regarding a violation of the statute...

Security Officers Found To Be Exempt Employees: An Interesting Twist

Posted on March 25, 2011
It is often difficult to claim that security officers are exempt from overtime under the Fair Labor Standards Act.  However, in a recent federal lawsuit, four officers who were employed by a private, so-called, paramilitary force that provided security services at the atomic research laboratory at Los Alamos were ruled to be executive employees and thus were exempt from overtime...

A Pleasant Surprise for Loan Companies --- Mortgage Loan Officers Found to Be Exempt from Overtime

Posted on March 21, 2011
On March 17, 2011, a Michigan jury returned a verdict in favor of loan company, Quicken Loans Inc., in a class action lawsuit alleging that Quicken had failed to pay them overtime under the Fair Labor Standards Act ('FLSA').  The jury found that the loan officers had been properly classified as exempt employees under the FLSA's administrative exemption...

Daylight Savings Time Has FLSA Implications: Employers Beware

Posted on March 16, 2011
Tis Sunday was Daylight Savings Time and we pushed the clocks ahead by one hour. This is, on a human level, a welcome event, as it signals winter's end.  Now, I can fling away any vestiges of Seasonal Affective Disorder and turn my attention to outdoor activities...

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Further Confusion --- The Split in Authority Regarding the Exempt Status of Pharmaceutical Sales Representatives

Posted on March 11, 2011
In early January, I posted an entry regarding the exempt status of pharmaceutical sales representatives. In the past several months, there have been several significant developments with respect to this issue. On February 14, 2011, the Ninth Circuit affirmed the District of Arizona's ruling in Christopher, et al...

The Legality Of Reducing Wage Rate To "Avoid" Overtime: The Supreme Court May Decide

Posted on March 08, 2011
I have believed that it is not illegal form an employer to reduce the wage rate of an employee, even if the objective is to save overtime costs or where as DOL audit has turned up liability and the employer wishes to respond by effecting a reduction in wage rates so the employer's labor costs do not increase...

"You Break It, You Bought It" Is Not the Best Policy In the Workplace --- the Pitfalls of Docking Employees' Pay

Posted on February 25, 2011
Last month, the Massachusetts Supreme Court ruled in Camara v. Attorney General, 2011 Mass. LEXIS 16 (Mass. Jan. 25, 2011), that employers are prohibited from docking the pay of workers as punishment for causing a 'preventable accident.' In reaching this decision, the Court disregarded the fact that the employees in question were only docked a 'modest' amount, and that they had signed a written policy agreeing to the deduction...

Diamonds In The Rough: Class Action Against Jeweler

Posted on February 22, 2011
An hourly paid employee has sued Helzberg's Diamond Shops Inc. in a Fair Labor Standards Act class action alleging that the jewelry store failed to pay proper overtime. The employee alleges on behalf of himself and others similarly situated that the employer did not pay for time worked during lunch breaks, for which the employees were required to punch out and then punch back in...

Even Rock Stars Have to Pay Overtime

Posted on February 15, 2011
On February 2, 2011, Steven Wiig, the former personal assistant for Metallica drummer Lars Ulrich, filed a lawsuit in the Superior Court of California, County of Marin, alleging various violations of the Fair Labor Standards Act and the California Labor Law...

Wage Hour Issues For New Companies: A Puzzlement

Posted on February 10, 2011
David LaGasse recently wrote a column in Employment Law 360 that  highlighted some of the wage-hour issues and  problems facing start-up companies.  I agree with these assessments and can comment further as follows. He mentioned the tendency to classify workers as independent contractors...

Record Keeping Requirements Under the Fair Labor Standards Act: How Employers Can Best Protect Themselves

Posted on January 31, 2011
Earlier this month, the United States Department of Labor ('DOL') announced that it had recovered $1 million in unpaid overtime from federal defense contractors in California. This award was based, in part, on the DOL's finding that the contractors violated the record keeping requirements set forth in the Fair Labor Standards Act ('FLSA')...

The Relationship Between The Joint Employer Doctrine and The Motor Carrier Exemption

Posted on January 28, 2011
In a recent lawsuit, a group of truck drivers filed a FLSA collective action against their employer, which was a leasing company and the trucking company to which they were leased.  The drivers did not have assigned routes, but their routes changed on a daily basis, depending on a number of factors, such as customer requirements and the driver's need to stay with DOT driving hours guidelines...

Lending Companies Can Expect A Wave Of Overtime Lawsuits By Loan Underwriters

Posted on January 17, 2011
On December 30, 2010, a former underwriter for Stearns Lending, Inc, filed an action in the Northern District of California, alleging that the Company, a mortgage loan lender, had misclassified her as an exempt employee. The plaintiff, Jennifer Gordon, claims that her duties as an underwriter consisted of reviewing loan applications and determining whether the loan met the criteria identified by the Company's standardized underwriting software...

Snow Day Compensation For Exempt Employees Is An Issue

Posted on January 13, 2011
We just got clobbered again in New Jersey with a blizzard and many businesses were again closed.  One inquiry I often get from employers at these times relates to their obligations under the Fair Labor Standards Act to pay exempt employees their full salaries when either they take a snow day or the establishment is closed...

A Tough Pill Spill to Swallow - Drug Company Hit With Lawsuit Challenging Exempt Status of Pharmaceutical Sales Representatives

Posted on January 05, 2011
On December 21, 2010, a former employee of drug company, Daiichi Sankyo, Inc. filed a lawsuit alleging that Daiichi misclassified pharmaceutical sales representatives ('Sales Reps') as exempt employees thereby improperly denying them overtime under the Fair Labor Standards Act ('FLSA')...

US DOL To Help Plaintiffs Bar File Collective Actions: Happy New Year?

Posted on December 31, 2010
In a recent posting in the Wage Hour Defense Blog, Michael Kun and Doug Weiner comment on a recent DOL initiative to actually refer potential wage hour law suits to private attorneys.  This, the authors note, comes on top of the DOL announcing that it will be hiring 350 new investigators to step up the government's enforcement initiatives...

Denial of Class Certification By Court Is Based On Need For Individual Assessment: The Key To The Defendant's Success

Posted on December 27, 2010
A group of satellite television dish technicians suing for overtime under the Fair Labor Standards Act ("FLSA") have been denied class certification based on the court's finding that there was not sufficient commonality among the class members, or, put differently, there was too much of a need for individual scrutiny...

Trial Tactic Of Introducing Exemption Defense Disallowed: A Valuable Lesson For Employers

Posted on December 22, 2010
I have often preached that the administrative exemption is the toughest one to prove.  It is even more difficult when that exemption defense is not raised either in the Answer or early on in a case, because it might be deemed lost or waived.  That is precisely what has happened to the employer in a case entitled Diaz v...

The Continuing Saga Of The Fluctuating Work Week Heads To The Supreme Court

Posted on December 13, 2010
An employee who was paid a salary, deemed exempt by her employer, filed a lawsuit claiming she was in fact non-exempt and won.  The calculation of her damages, however, was not to her liking as the court computed the overtime using the half-time method allowed by the Fair Labor Standards Act ('FLSA') fluctuating work week (FWW) regulations for salaried non-exempt employees...

The New Year Will Likely Bring More Of The Same In The FLSA Class Action Arena

Posted on December 09, 2010
In the November 30, 2010 issue of Employment Law 360, Alfred Robinson posits three continuing trends in FLSA litigation: 1) donning and doffing cases; 2) exemption misclassification cases; and, 3) off-the-clock work cases.  I concur, with the addition of a group of cases that I will call 'blackberry cases' or 'checking e-mail' cases...

Steeped-Up Independent Contractor Enforcement Initiatives Coming Down The Pike Full Steam

Posted on November 30, 2010
The United States Department of Labor has announced that it will coordinate with the Internal Revenue Service as well as state officials in enforcing laws related to treatment of individuals as employees, rather than independent contractors.  This represents yet another tactic or step being taken to deal with the problem of alleged employee misclassification and the revenue loss which it entails for the federal and state governments...

Working Time Class Action Focuses On Alleged Manipulation of Time Records

Posted on November 24, 2010
A North Carolina-based employee has filed a FLSA collective action and a state law class action alleging, among other things, breach of contract, against Foot Locker Incorporated.  The Complaint alleges that the Company essentially deprived sales associates, cashiers and stockers from properly due wages and overtime through a systemwide policy and practice of managers altering and changing time records...

Failure To Include Certain Payments In Regular Rate Can Lead To Class Action Liability

Posted on November 18, 2010
A federal judge has conditionally certified a FLSA collective action which was instituted by a production workers in an action in which the plaintiffs claim that many kinds of payments were not included when the company calculated their overtime.  There were lump sum payments, flexibility payments for working during certain operational contingencies, various night work premiums, holiday premium pay and annual payments for certain employees when they renewed their licenses...

Happy Thanksgiving! Turkey Processing Plant Workers Sue For Overtime

Posted on November 16, 2010
A federal judge has conditionally certified a class action which was instituted by a group of production line workers in a turkey processing plant.  They claim they are owed compensation for donning and duffing activities as well as other activities that they claim were 'working time...

New York Proposed Wage Order Illustrates Need for Employer Attention

Posted on November 07, 2010
In a recent posting in the Wage Hour Blog, Amy Traub has commented on a proposal in New York that would merge the Restaurant and Hotel Wage Order.  If the New York State DOL adopts the merger, this will affect requirements related to the minimum wage, tip credits and tip pooling, customer service charges, overtime calculations and other common issues affecting these related industries...

Strippers Claim Coverage Under FLSA And File Class Action!

Posted on November 02, 2010
A federal judge has conditionally certified a class action which was instituted by a 'class' of strippers who allege that the Penthouse Executive Club, a hot spot of entertainment in Manhattan, did not pay them at least the minimum wage and failed to pay overtime...

Crackdown on Allegedly Misclassified Independent Contractors Continues: New York Joins The Club

Posted on October 29, 2010
In an October 28, 2010 posting in the New York Labor and Employment Report, Joseph Dole comments on a new law that took effect in New York State on October 26, 2010.   That law, entitled the Construction Industry Fair Play Act, creates a presumption in the construction industry that all workers are statutory employees, not independent contractors...

Another Blackwater FLSA Class Action Lawsuit

Posted on October 27, 2010
Although Blackwater, the 'infamous' company that has played a role in the occupation of Iraq, has changed its name to Xe Services LLC, that cannot change the seemingly continuing stream of Fair Labor Standards Act collective actions raining down on the company...

Satellite Dish Workers Tune In A FLSA Working Time Class Action

Posted on October 22, 2010
When piece-rate workers work more than forty hours, the Fair Labor Standards Act has developed a formula for determining and computing their overtime pay.  It is first essential, however, to realize that such workers are due overtime and to understand that workers who work 'with their hands' such as mechanics or technicians, are entitled to overtime...

"Practical Continuity" And Interstate Commerce Under FLSA Motor Carrier Exemption

Posted on October 20, 2010
In a recent post in the Wage and Hour Defense Blog, Richard Tuschman discussed the Eleventh Circuit decision in Abel v. Southern Shuttle Services, Incorporated, which analyzed the applicability of the FLSA motor carrier exemption to drivers who transport passengers from airports to locations within the same State...

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