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Wage & Hour - Development & Highlights 
Post Frequency: 1/day Last Entry: May 22, 2013 at 13:34:07 Recent Entries: 312
By Mark E. Tabakman, Esq.
Go to Wage & Hour - Development & Highlights, find other Labor & Employment Law blogs, or browse all law blogs.
New Jersey Law Scrutinizes Independent Contractors In Trucking Industry
Posted on May 22, 2013I have posted numerous times on the crackdown by numerous States of alleged misclassification of individuals as independent contractors. My State, New Jersey, has passed a special law pertaining to misclassification in the construction industry, although no new definition of independent contractor was established...
Lack of Accurate Records Does Not Equal Windfall In FLSA Suits
Posted on May 16, 2013The Eighth Circuit in Carmody v. Kansas City Board of Police Commissioners addressed the standard of proof in a wage and hour case when an employer failed to maintain accurate timekeeping records. The Court held that even under the 'relaxed standard' established by the U...
DOL Audits Will Rise With New Funding Increases
Posted on April 30, 2013I have often posted on the recently found aggressiveness of the Departments of Labor, on both the federal and state levels, to step up enforcement of (alleged) wage-hour (i.e. overtime) violations and independent contractor audits (i.e. 1099/consultant)...
Proposed Rule Change By the Department of Labor Could Negatively Affect The Elderly and Disabled
Posted on April 29, 2013The National Association of Medicaid Directors ('NAMD') is challenging the proposed rule to extend minimum wage and overtime protections to home health care workers. Currently, home health care workers are exempt from the minimum wage and overtime requirements under the Fair Labor Standards Act...
Supreme Court Gives Offer Of Judgment "Offensive" Defense Big Boost
Posted on April 26, 2013I have posted several times about the offensive use of the FRCP Rule 68 Offer of Judgment in FLSA collective overtime (or other) actions, have myself utilized it to dispose of a FLSA collective action and have watched with great interest the journey to the US Supreme Court of the Genesis Healthcare case...
Use Of Preemption Defense In Wage-Hour Lawsuit May Kill Entire Action
Posted on April 05, 2013When I am faced with a wage suit, whether individual or class action, I always look for a 'magic bullet' a quick fix, a tactic that might make the entire suit go away in one fell (and less costly) swoop. One of these tactics is to use a preemption defense...
Overtime DOL Investigates New Jersey Employers
Posted on March 27, 2013Complying with overtime requirements should be relatively 'simple' for employers, yet often these requirements cause confusion for the business community or are, perhaps, disregarded. The FLSA requires that covered, nonexempt employees be paid (at least) the federal minimum wage of $7...
The Wave Of Intern Suits: When Are They Employees?
Posted on March 25, 2013I have posted a number of times on the slew of intern lawsuits recently filed under the Fair Labor Standards Act. This may be a new 'wave' or fertile new ground for plaintiff side practitioners so I keep following these cases, particularly, the Hearst Corporation case, with more than a little interest...
Gasoline Station Overtime Case Highlights Wage Hour Dangers
Posted on March 15, 2013There are many industries where the agreement between the worker(s) and the employer is that the worker will receive a certain fixed lump sum of money, sometimes wholly or partly in cash, for an agreed-upon number of hours. This situation is rife in the gasoline station industry, as evidenced by the fact that a New Jersey gas station operator has recently settled a case, agreeing to pay $3,000,000 in unpaid wages/overtime and penalties to more than four-hundred employees at more than seventy gas stations in New Jersey for violations of the Fair Labor Standards Act ...
What Employers Should Know About Vacation Pay
Posted on March 01, 2013Do employers need to pay employees for accrued vacation time upon termination? This is a question without a simple answer, and one that has been heavily litigated over the past several years. Unlike most wage and hour issues, the Fair Labor Standards Act does not address this concern...
State Exemptions Need Not Mirror Federal Exemptions
Posted on February 28, 2013The federal motor carrier exemption applies to drivers, mechanics and other employees whose duties affect safety and who work in interstate commerce. This exemption applies to truck companies and bus companies. Any state is free to adopt this exemption, in toto, or to modify it or, in fact, not adopt it at all...
Working During Meal Break Controversy Continues: What Employers Should Do
Posted on February 06, 2013In December, I blogged about off-the-clock work in my post Unreported, Off-the-Clock Work. Off-the-clock work includes meal break time, and issues arise when employees work during these breaks, or claim that they work during these breaks, but are not paid...
Household Cleaners and Maids Protected By the Fair Labor Standards Act
Posted on January 31, 2013In a matter of first impression, the Northern District of Illinois determined that maids and house cleaners employed by third parties are protected by the Fair Labor Standards Act ('FLSA'). In reaching this decision, the court held such workers are not exempt from overtime by the 'domestic service' exemption of the FLSA...
Just In Time For Tax Season--Auditors Test Professional Exemption Against Price Waterhouse in Yet Another Class Action
Posted on January 25, 2013I have noticed that there are not many lawsuits (e.g. class actions) brought that test the limits of the professional exemption. That exemption, geared towards anyone with an advanced degree (lawyer, doctor, CPA, engineer) is fairly well defined and a lawsuit easily defended...
What Is Working Time? Listen To My Webcast Airing on January 17, 2013
Posted on January 15, 2013I often post on and discuss working time issues, e.g. travel time, on-call time, automatic lunch deduction cases, training time and, of late, after-hours employee email/blackberry usage and whether it is "work hours." On Thursday, January 17, 2013, at 11AM, I am giving a one-hour Webcast on the topic "What Is Working Time and When Is It Compensable?" The link is http://www...
Break Time for Nursing Mothers
Posted on January 15, 2013Section 7 of the Fair Labor Standards Act ('FLSA') was amended by the Affordable Care Act to require employers to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child's birth each time such employee has the need to express the milk...
Tough Questions For The Interviewer: Charlie Rose Settles Class Action Intern Lawsuit Alleging Employee Status
Posted on January 09, 2013In other blog posts, I have commented on a number of lawsuits, class action suits, filed on behalf of individuals who were hired as 'interns' but who then claim that they were actually 'employees' under the FLSA and should have been compensated. There are definite criteria that have to be met for someone to be deemed an intern, rather than an employee, and if the putative employer does not comply with all of the factors, the person is not an intern...
Validity of USDOL 2010 White Paper On Loan Officers Being Challenged: Let's Start The New Year Off On The Right Note!
Posted on December 26, 2012The status of employees in the financial services industry has been the subject of numerous lawsuits and controversies. The 'new' FLSA regulations (from 2004) even postulate that a financial services employee can fit the administrative exemption, if their main job duty is not the selling of financial products...
Unreported, Off-the-Clock Work
Posted on December 17, 2012The U.S. Court of Appeals for the Sixth Circuit issued a positive decision for employers about unreported, off-the-clock work. In White v. Baptist Memorial Health Care Corporation, 2012 U.S. App. LEXIS 22752 (6th Cir. 2012) the court held that if an employer establishes a reasonable process for an employee to report uncompensated work time, then the employer is not liable for non-payment when the employee fails to report his time...
New Jersey Moving Towards Heightened Penalties For Wage and Hour Violations
Posted on December 17, 2012The New Jersey Assembly Budget Committee has approved legislation to enhance penalties and sanctions against employers who illegally withhold wages and benefits from employees. The proposed legislation sets forth increased fines, penalties, and damages for wage and hour violations...
Supreme Court Will (Finally) Rule On Offer of Judgment Procedure Used To Moot FLSA Collective Actions
Posted on December 13, 2012These are happy times for management side lawyers, I predict. The U.S. Supreme Court has heard oral arguments on the issue of whether utilizing the Rule 68 FRCP Offer of Judgment procedure to, essentially, 'pick off' the lead, named plaintiff in a FLSA collective action ends up undermining the validity of the entire class if that lead plaintiff turns the Offer down and the Court then dismisses the case for mootness...
Professional Exemption Defense Dooms Large FLSA Collective Action Against KPMG
Posted on December 06, 2012A federal judge has dismissed a FLSA class action lawsuit where the theory was the group of employees was improperly classified as exempt. There were more than one thousand current and former KPMG LLP employees who could have potentially been class members...
De-Certification Attempt Depends Upon Ostensible Need For (Too Much) Individual Scrutiny
Posted on November 29, 2012A FLSA class is usually conditionally certified. The next tactical step for the employer is to seek that class' decertification. If it succeeds in doing so, the case is over (subject to appeals). The key to that effort is to convince the district court that too much individual scrutiny of class members is required so there does not exist the commonality, the 'pattern or practice' that binds all class members together...
Why Employers Should Be Weary About Deducting Housing Costs From Employees' Pay
Posted on November 28, 2012The U.S. Department of Labor ('DOL') has recovered $213,000 in back wages for 1,028 foreign students who were employed at a plant owned by Hershey Co. The foreign students were placed at the plant as part of the State Department's Summer Work Travel Program...
Why Employers Should Be Wary About Deducting Housing Costs From Employees' Pay
Posted on November 28, 2012The U.S. Department of Labor ('DOL') has recovered $213,000 in back wages for 1,028 foreign students who were employed at a plant owned by Hershey Co. The foreign students were placed at the plant as part of the State Department's Summer Work Travel Program...
Large Damages Award In Starbucks Tip Pool Case Demonstrates (Again) Danger of Managers Sharing In These Pools
Posted on November 23, 2012I have written before on these tip pool cases involving Starbucks and other restaurants where the tip credit (which allows an employer to pay a sub-minimum wage) is destroyed. This happens because 'improper' people (i.e. managers) share tips along with rank-and-file employees...
Don't Pass The Ketchup: HJ Heinz Workers Lose Bid For "Rounding" Class Action
Posted on November 16, 2012A thorny and confusing issue under the Fair Labor Standards Act is that of when and how an employer can 'round' employee work time down (or up) to accurately record employee work time and pay (or not pay) for that time. In a significant case, a federal judge has dismissed a proposed nationwide class action in which factory workers sued H...
Eighth Circuit Approves Change In Work Schedules To Reduce Overtime
Posted on October 26, 2012What happens when an overtime violation is found? Well, as a management side practitioner, I want my client to come into compliance with whatever parts of the FLSA they are (allegedly) violating. For overtime violations, I have found that one manner of remedy is to change employee work schedules so that they do not work overtime...
No Steak Sauce For Steak N Shake Workers As Judge Rejects Class Action: No Common Policy Or Practice
Posted on October 19, 2012I happily note that a positive trend, in my view, is continuing. That is to say, the defeating of FLSA collective actions by defendants asserting that there is not enough similarity in the putative plaintiffs to warrant their conditional certification into a class...
Is Gold's Gym Out Of Shape? Company Hit With Collective Action On Off-the-Clock Time
Posted on October 05, 2012A group of Gold's Gym employees have filed a FLSA collective action. Their theory, similar to a rising number of such suits, is that they were required to work off the clock. The employees claim they have to work between 50-60 hours per week, but are only paid for forty...
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How do i go bout geting a free laywer to sue the durham police department for drug raids and nothing is found?they have been in my house 4 or 5 times seems like every 4 months or so and breaking down my door tearing up m
They need a warrant to get into your house...if they never showed you one...you ...
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Look up CONSTRUCTIVE DISCHARGE...................this looks like what happened t...
Can my employer change my salary rate without my written consent and approval?
Yes, they can change what they pay you without your consent. It's their mon...
Can police do this? entering a property and look over a fence?
If the officer was looking over the fence in the line of duty (checking on the n...
My landlord can't afford the house I am renting, and is going to sell it or forclosure - ?
I am sorry about your situation. Unfortunately there is not much you can do. Rig...
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is===1How do i go bout geting a free laywer to sue the durham police department for drug raids and nothing is found?they have been in my house 4 or 5 times seems like every 4 months or so and breaking down my door tearing up m
They need a warrant to get into your house...if they never showed you one...you ...
The company I worked for forced me to quit instead of dealing with someone harassing me, what can I do?
Look up CONSTRUCTIVE DISCHARGE...................this looks like what happened t...
Can my employer change my salary rate without my written consent and approval?
Yes, they can change what they pay you without your consent. It's their mon...
Can police do this? entering a property and look over a fence?
If the officer was looking over the fence in the line of duty (checking on the n...
My landlord can't afford the house I am renting, and is going to sell it or forclosure - ?
I am sorry about your situation. Unfortunately there is not much you can do. Rig...
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