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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

Personal Liability Under The FLSA: The Issue Of Contro

Posted on October 18, 2010
When can the Department of Labor or plaintiff lawyers go after the officers and owners of a company for unpaid wages due employees? That is an extraordinarily important question because all individuals who go into business, especially those who incorporate, are doing so to gain legal protections and to avoid, if things go 'south,' being found liable for debts of the corporation...

Class Certification Denied Due to Dissimilarity In Putative "Class." The Way To Go!

Posted on October 06, 2010
In a FLSA collective action, a federal judge has denied conditional certification to a class of bus drivers and bus aides, who claimed overtime violations. The denial was founded on the premise that the employees did not make even the modicum of a showing required for the obtaining of conditional certification...

Loss Prevention Managers: Do They Fit Within The Administrative Exemption?

Posted on September 30, 2010
A class of Loss Prevention Managers are suing their employer in a Fair Labor Standards Act collective action, contending they have been incorrectly classified as exempt. Their cause has advanced a step, as a federal judge has just granted conditional certification to their proposed class...

Taking Exercise Classes and Watching Inspirational Videos Is Working Time? FLSA Collective Action Hits Lululemon Athletica

Posted on September 27, 2010
When employers are compelling employees or 'suggesting' to employees that they engage in work-related activities before or after they go on and off the clock, trouble is brewing. In the latest of these working time class actions, a group of employees working for Lululemon Athletica Inc...

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Joint Employer Finding Can Lead To Significant Liability Under The FLSA

Posted on September 17, 2010
In a September 16, 2010 posting in the New York Labor & Employment Report, John Ho wrote about the issue of joint employer status under the Fair Labor Standards Act ('FLSA'). These are potentially explosive situations, especially if employees work from one facility to another...

States Are Enhancing Enforcement of Wage Hour Laws: Revenue for The State And Wages to the Workers

Posted on September 14, 2010
Since March 2009, it has been a stated objective of the United States Department of Labor (USDOL) to step up prosecutions and investigations of employer wage-hour violators. I have noted this trend in a number of other posts. The USDOL is not without (numerous) partners in this initiative...

Collective Action Defeated Through Finding Of Exempt Status of Accountants: Glory Be The Day!

Posted on September 03, 2010
The Eleventh Circuit Court of Appeals court has concluded that a lower court's dismissal of a collective action filed by accountants was legally proper on the basis that the Company did not misclassify these accountants as exempt. In an area of wage-hour law that is rife with all manner of shades of gray, this is a great victory for this employer and employers in general...

Health Care Industry: DOL Intensified Focus Mandates More Awareness

Posted on August 31, 2010
In a recent posting in the Wage Hour Defense Blog, Kara Maciel brought attention to the new, intensified focus by the federal Department of Labor in auditing and inspecting health care facilities. I represent a number of such facilities and have also noticed an uptick in such investigations, especially as concerns lunch breaks and rounding...

Proposed Legislation Seeks To Expand FLSA Coverage To In-Home Workers

Posted on August 24, 2010
Under the proposed Workforce Empowerment Act (S. 3696), introduced in the Senate on August 3, 2010, in-home direct care workers who work more than twenty hours per week will be covered by the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA)...

Union Representation Activities: Are They "Working Time" Under The FLSA?

Posted on August 18, 2010
In a rather new twist on the working time class action trend, Southwestern Bell Telephone Co. is being sued in a Fair Labor Standards Act ('FLSA') collective action, where the underlying theory is that the company has denied union representatives compensation for their time performing union-related duties...

Off-The-Clock Work: A Hidden Danger Explodes

Posted on August 16, 2010
I have posted numerous times on the issues of preliminary and postliminary work and whether these activities are compensable. Part and parcel of this issue is whether such time is compensable. A recent case highlights (again) this issue and the confusion that well-intending employers face when determining whether or not to pay employees for alleged working time...

FLSA Settlements: Employers Must Be Wary Of Correct Procedure

Posted on August 11, 2010
I have defended a number of Fair Labor Standards Act (FLSA) class actions and individual suits and many of these result in settlement. When these cases are settled, naturally, a document is drawn up for the plaintiff(s) to sign. These settlements, under law, must be judicially approved and if they are not, both parties (especially the defendant) run the risk that the settlement may be invalid and the plaintiff(s) then legally able to continue the lawsuit...

Tip Pools: Employers Must Be Wary of Wading In

Posted on August 06, 2010
In another of the slew of tip pool cases that have ripped through the restaurant industry in New York City and elsewhere, a federal judge has granted class certification to workers who receive tips in the Smith &-Wollensky Restaurant Group Inc. These employees allege that the chain has improperly required them to pool their tips in a manner proscribed by the law...

Assistant Manager Saga Continues: Radio Shack Hit (Again)

Posted on July 23, 2010
In Florida, an Assistant Manager has filed a class action against RadioShack Corporation, alleging that the company has misclassified these managers as exempt executives and has not paid them overtime. The case is Truax v. RadioShack Corp. and was filed in the U...

Here Comes An Avalanche of FLSA Cases: Employers Be Aware, Be Proactive!

Posted on July 16, 2010
Statistics were just published showing a rise in litigation under the Fair Labor Standards Act. This highlights the fact (something we have seen for some years, now) that there is a semi-organized network of plaintiff side lawyers specializing in FLSA cases who are actively seeking out these cases and also highlights the fact that, under a Democratic administration, there is a more employee-friendly federal Department of Labor...

Another Law Firm Sued For Overtime, This Time By A Lawyer: What's The World Coming To?

Posted on July 14, 2010
A few months ago, I posted about a law firm sued for overtime by a paralegal. In this latest case lodged against another law firm, a securities and antitrust plaintiff's law firm named Labaton Sucharow LLP, a former attorney has filed a class/collective action seeking overtime...

Who's The Bimbo Here? Another Class Action Focusing On Independent Contractor.

Posted on July 07, 2010
Bimbo Bakeries has been hit with another wage-hour collective action in which the allegation is that the delivery drivers claim they have been classified as independent contractors, when they are really employees. They seek wages and the employment benefits they would be due as statutory employees...

Travel Time Class Action Highlights Necessity To Accurately Determine "Work Time."

Posted on July 01, 2010
An equipment technician has filed a Fair Labor Standards Act collective/class action against Ingersoll-Rand Company. The allegation relates to alleged working time, i.e. travel time, that the company did not pay workers for. These workers drive all over the New England performing installations, service and repairs...

Pizza Drivers Allegedly Shorted On Gas Money File Collective Action

Posted on June 29, 2010
A class of former Domino's Pizza LLC delivery drivers has succeeded in gaining conditional collective action certification in a Fair Labor Standards Act lawsuit in which they allege that the gigantic pizza chain paid them below the minimum wage, through the device of making them buy their own gasoline! The case is Luiken et al v...

Tip Pool Cases Abound: The Danger For Restaurant Employers

Posted on June 23, 2010
A group of employees has filed a lawsuit against a high-end Greek restaurant situate in the vacation haven of the Hamptons. The plaintiffs, servers, are alleging that the employer improperly implemented a tip-pooling policy that violated the Fair Labor Standards Act ('FLSA')...

A few weeks ago, I posted on the

Posted on June 18, 2010
A few weeks ago, I posted on the new federal Department of Labor policy to now issue position papers, as opposed to responding to requests for opinion letters. On this subject, there has been a rash of cases, many of them class actions, on whether certain preliminary and postliminary activities related to putting on safety equipment and safety clothing is compensable work time...

A New Interpretation of the DOL

Important Development in Class Action Law: Indemnification Agreement Upheld

Posted on June 11, 2010
A case has recently issued that provides instructive guidance for employers who may want to insulate themselves from potential liability in a class action lawsuit. A federal judge has ruled that an entity, a sub-contractor that provided janitorial personnel and crews to Target Corp...

The Administrative Exemption And Dispatchers: The Eleventh Circuit Gives Guidance

Posted on June 09, 2010
I have written a number of times about the difficulty of proving that the administrative exemption applies to dispatchers in the transportation industry. I have noted that most transportation employers consider these employees exempt because their job functions are critical to business operations...

The Demise Of The DOL Opinion Letter

Posted on June 04, 2010
Recently, the United States Department of Labor ('DOL') issued a white paper or a formal position statement on exemption issues in the financial services industry. I wrote about that in March, when it issued. This was the first in a series of white papers that will replace the longstanding practice of the DOL responding to inquiries from employers and workers and issuing/publishing these responses, so-called Opinion Letters...

Classes and Sub-classes Are Possibilities In FLSA Collective Actions

Posted on June 01, 2010
The Seventh Circuit Court of Appeals (based in Chicago) has reversed a district court judge who dismissed two Fair Labor Standards Act overtime collective actions instigated by a group of Chicago paramedics because the lower court judge found the claims were 'hopelessly heterogeneous...

Momentous Development In FLSA Class Action Law

Posted on May 25, 2010
I have handled a number of wage-hour class actions where the plaintiffs allege federal (i.e. Fair Labor Standards Act) and parallel/identical state law claims for wages and overtime. Here, in New Jersey, I have made motions to sever the state claims because they cannot exist as a component of the FLSA action due to the inherent tension in the opt-in (federal) versus opt-out (state) procedures...

Conditional Certification Defeated: A Rare Occurrence!

Posted on May 19, 2010
A federal judge has thrown a nationwide collective action against Black & Decker out of court. The suit alleged that the company did not pay employees for time allegedly worked off the clock. The court found that the plaintiff did not prove that he had worked overtime...

Are Smart Time Clocks, In Fact, "Smart?"--- Class Action Involving Automatic Lunch Deductions

Posted on May 14, 2010
There are employers whose 'smart' time clocks automatically make a thirty minute deduction every day for lunch, supposedly and assumedly taken. I have railed against this practice, advising that the far safer thing is to have employees punch out and then back in for lunch, because someone, somewhere down the line, will assert that they worked through lunch but nevertheless had that half-hour deducted...

The Offer Of Judgment: Sometimes The Magic Works, Sometimes It Doesn't

Posted on May 07, 2010
In yet another case involving Assistant Managers, the named plaintiff in a exemption misclassification case has moved for conditional certification, after successfully defeating the defendant-employer's Rule 68/Offer of Judgment strategy. I have written about Rule 68 many times and have urged that this is a viable way for a defendant to close a case out, without going through the torture of protracted, extraordinarily expensive litigation...

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