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Labor & Employment Law

Wage & Hour - Development & Highlights

By Mark E. Tabakman, Esq.

Post Frequency: 0.8/day

Last Entry: March 30, 2011 at 10:04:31

Don't Hang Up: Nokia Independent Contractor Lawsui Settled

Posted on August 22, 2008
Nokia has agreed to settle a Fair Labor Standards Act suit action in which the workers charged they were misclassified as independent contractors and not paid proper overtime. In this suit, filed in federal court in Texas, the plaintiffs had tried to recover unpaid back wages, attorneys’ fees and costs, based on a theory that they consistently worked in excess of forty hours per week...

Lunch Time Can Be Work Time: Employers Beware!

Posted on August 15, 2008
I have encountered a number of cases where employees do not, whether unintentionally or otherwise, work through their lunch hours (or half-hours) and then later claim they are owed wages or overtime for that work. It is crucial to understand that it is not enough to simply, merely have a policy that requires employees to take lunch...

New Proposed Regulations Affect Overtime Issues

Posted on August 04, 2008
The federal regulations are always being updated, even if some of the revisions move at seemingly glacial speed. Recently, the United States Department of Labor has proposed to revise regulations addressing the so-called tip credit, the use of the fluctuating work-week method of paying overtime and compensatory time off...

Salute Me And Then Pay Me Overtime

Posted on July 23, 2008
The Court of Appeals for the Tenth Circuit has held that civilian military recruiters were non-exempt employees and therefore entitled to overtime pay. As they were salaried, their back due overtime will be computed under the so-called “fluctuating workweek” method, which generates a lower recovery than traditional time and one-half...

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Predators, Physicals and Working Time

Posted on July 16, 2008
As I have written about, many activities may be deemed compensable working time, under the right circumstances. Some of these activities might not appear immediately visible as working time. For example, a class of almost 200 employees who worked at a facility for sexually violent predators on McNeil Island, Washington State and had to ride a ferry to and from the facility were not entitled to overtime pay for the travel time on the ferry, held an appellate court...

Snake Eyes Comes Up For Plaintiffs In Casino Exemption/Overtime Case

Posted on June 30, 2008
A class of table games supervisors sued Harrah's, claiming they were non-exempt and entitled to overtime. The casino defended by asserting that they were exempt under the administrative exemption. This exemption remains (even after the August 2004 revisions to the FLSA regulations) the grayest and most difficult (for an employer) to prevail upon in an overtime claim...

Judge Rules a Proposed Class Is Exempt As A Matter of Law: All Good Things Come To Those Who Wait!

Posted on June 23, 2008
A federal judge has ruled that a class of information technology workers in California was exempt from overtime and has granted the employer summary judgment on the overtime claims. That this occurred in California is fairly significant as that State has been a breeding ground for numerous class actions, many of them involving computer workers...

The Courts May Hang Up on AT&T In Novel Class Action

Posted on June 02, 2008
Workers have filed a serious class action against the cell phone division of AT&T. The workers, who received overtime pay at first, have claimed that the Company's supervisors changed the data base so employees could not enter more than 40 hours of working time in a week...

Don't Hedge Your Bets: This Billion Dollar Industry Is Subject to Class Actions

Posted on May 09, 2008
Another financial services industry class action. It seems like there is one every week. The same themes predominate. In this latest JP Morgan suit, the hedge fund accountants are claiming they were improperly classified. They also claimed they worked 5-6 days per week and worked many hours more than forty...

Three Strikes And You're Out (Or, In, The Class Action)e

Posted on April 30, 2008
Food vendors at Fenway Park in Boston have filed a class action against Aramark Sports LLC, their employer, alleging that the company assessed service charges and then did not pay the service charges out to the employees. The suit also claims improper payment of overtime...

Tyson Seeks Supreme Court Review of Working Time Definition

Posted on April 11, 2008
Lawyers for Tyson Foods Inc. have petitioned the United States Supreme Court to hear the case involving the issue of whether "work" must involve some physical exertion. The Third Circuit Court of Appeals ruled that the need to put on safety/protective clothing constituted work although no real physical effort was involved...

Starbucks Really Hits The Grinds

Posted on April 04, 2008
A state court judge in California has ordered Starbucks to pay more than 105 million dollars in back wages to servers and other employees because the tip pool included managers, which is a clear-cut violation of the law.There are 120,000 people covered in the case...

Starbucks Really Hits The Grinds

Maintaing Parallel Federal And State Overtime Class Actions: You Can't Do It (Maybe)

Posted on March 14, 2008
Many times when an employee or group of employees files a FLSA class action, the plaintiffs will file a state action, making the same allegations, i.e. unpaid overtime, but under a state wage-hour statute. There have been a host of cases exploring the issue of whether these parallel actions can be maintained simultaneously...

Maintaing Parallel Federal And State Overtime Class Actions: You Can't Do It (Maybe)

Blackwater May Mean Deepwater: Independent Contractor Controversy Erupts

Posted on March 11, 2008
We all know Blackwater as the company that has been given one billion dollars in federal contracts to do work in Iraq. There have already been numerous allegations concerning the activities of Blackwater agents and their tactics. Now, it appears that this company may have, on a widespread scale, been violating labor law by classifying individuals as independent contractors when they should have been deemed employees...

Blackwater May Mean Deepwater: Independent Contractor Controversy Erupts

Glory Be The Day! A Federal Court Denies Class Certification

Posted on March 05, 2008
A federal court in California declined to certify a class action under the FLSA, an action that was filed by financial sales representatives of US Bancorp in a case entitled Guess v US Bancorp. The plaintiffs wanted a nationwide class action, as many of these suits hope for and seek...

The Financial Services Industry: Easy Target For Class Actions

Posted on February 29, 2008
The financial services industry has been and will continue to be, in my view, hard hit by wage-hour class actions. The attack will be and has been that these employees are non-exempt and therefore entitled to overtime. These employees also, typically, work much more than forty hours in a week...

Workplace Policies Prohibitng Unauthorized Overtime Are Denied Enforcement: A Boondoggle for Employees

Posted on February 26, 2008
How does an employer control overtime costs and ensure that the employees do not take it upon themselves to work overtime when there is no need for it or, more to the point, it has not been authorized. I have counseled clients for years that they should implement a policy that requires employees to get prior authorization before they work overtime and if they do not, the overtime is unauthorized and will not be paid...

Interstate Commerce and The Exemption Issue

Posted on February 21, 2008
There are more than twenty (20) exemptions from overtime enumerated in the Fair Labor Standards Act. Mostly, employers only are concerned with the three so-called white-collar exemptions (executive, administrative, professional). There is, however, an exemption for truck drivers, bus drivers and other individuals who drive for a living and who cross state lines...

Another Working Time Class Action: The More Things Change...

Posted on February 18, 2008
A group of San Francisco police officers has filed a class action, seeking compensation for time they allege was working time that occurred before their shifts. They claim that they should be paid for putting on their uniforms and taking care of their equipment...

Decertification of Class Not An Easy task

Posted on February 11, 2008
When a FLSA class is certified, the defendants then have the opportunity to decertify the class at a later date. The employer argues that the people who opted in to the class are dissimilar to those who started the suit and should be eliminated...

The Fluctuating Work Week Method of Paying Overtime: The Employer's Friend (or Foe)

Posted on December 11, 2007
Under the Fair Labor Standards Act (“FLSA”), the general rule is that employers must pay overtime to non-exempt employees who work in excess of forty (40) hours per week, at the rate of one and one-half times the employee’s regular rate of pay...

Basic Principles For Employer Compliance

Posted on December 04, 2007
The general rule under federal law is that employers must pay overtime to employees who actually work over forty hours a week at a rate of one and one half times the employee's regular rate of pay. The FLSA expressly exempts three major categories of employee from overtime requirements: executive employees, administrative employees and professional employees...

How To "Sell" The Exempt Status Of Sales Representatives To A Court

Posted on November 10, 2007
Amidst a wave of recent cases dealing with the exempt status of sales representatives, one case has shown what employers can do to eliminate liability for such workers as well as potential pitfalls that need to be avoided. In Barnick v. Wyeth, a judge dismissed a proposed class action against the Wyeth company, ruling that the a group of sales representative plaintiffs were exempt under the California statute they sought to bring suit under...

Fed Ex Drivers Look At The Map and Find Their Way To A Class Action

Posted on October 31, 2007
Federal Express is facing a looming legal battle over whether it can classify its drivers as independent contractors or as employees, as the company’s Ground Package division faces a nationwide class action suit by truck drivers, who are suing under the Employment Retirement Income Security Act (ERISA) for allegedly misclassifying the employees as contractors...

Exempt Status and Job Titles: They Do Not Matter

Posted on October 30, 2007
It is important for employers to feel that they have selected the right job title for their employees, but just because the title sounds perfect, that does not mean the chosen title will automatically shield employers from misclassification liability under the exemption rules of the Fair Labor Standards Act (“FLSA”)...

Class Action Liquidated Damages Award of $62 Million Against Wal-Mart

Posted on October 15, 2007
In the continuation of a class action that has been going on for some time, Wal-Mart has recently been ordered by the court to pay a class of 125,304 employees roughly $62 million in liquidated damages for Walmart's violating state wage and break laws by refusing to allow employees to record their hours worked in the computerized pay system...

Preliminary/Postliminary Activities--Compensable Working Time? Maybe, Maybe Not

Posted on October 04, 2007
Everyone knows (all too well) what constitutes “work,” but do we really? Naturally, if we are performing our primary job, we know we are working (and the employer must pay for that time). What about activities that are performed either before the start of the “bell” or following the formal end of a “shift...

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