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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

Preliminary and Postliminary Activities In A Different Context

Posted on April 30, 2010
I have posted numerous times on the issue of when preliminary or postliminary job 'duties' become compensable. If the employer is unaware that they might, or missed the mark, the result can be and often is a class action lawsuit, oftentimes seeking overtime compensation, as these 'work activities' often bring the hours worked to more than forty in a week...

Oh No! Reclassification From Exempt To Non-Exempt Prompts Class Action

Posted on April 21, 2010
A federal judge has granted conditional class certification to a class of workers at a subsidiary of ATT, who are alleging a failure to pay overtime. The case is entitled Wlotkowski et al. v. Michigan Bell Telephone Company, filed in the Eastern District of Michigan...

Unpaid Internships May Be A Problem: Are They Employees Or Not?

Posted on April 16, 2010
There is a fine line oftentimes between who is and who is not an employee. This premise especially applies to the issue of 'interns.' As summer approaches, and as jobs may be quite hard for young people to find, there seems to be a rise and we expect to see a sharp rise in companies utilizing unpaid 'interns...

A New Insight Into The FLSA Administrative Exemption

Posted on April 09, 2010
I have often lamented that the administrative exemption is the grayest of the three white-collar exemptions and the toughest to prove. There are, however, some notable exceptions to this rule. A federal court has granted summary judgment to a temporary employment recruiting firm, where the former employee, an Account Recruiting Manager, alleged he was non-exempt and entitled to overtime under the Fair Labor Standards Act ('FLSA')...

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Critical New Development On Status of Mortgage Loan Officers Under FLSA

Posted on March 31, 2010
I have written many times on the questionable exempt status of mortgage loan officers, brokers, mortgage originators and other similarly titled employees. I have called attention to the proliferation of class/collective actions against mortgage and banking companies on this issue...

When Donning and Duffing Necessary Protective Clothing Is Not Compensable

Posted on March 29, 2010
A federal judge has dismissed a possible class/collective action concerning an alleged failure by Butterball, the giant poultry company, to pay workers for donning and doffing time. I have written many times on this subject, but this case is different because the court found that the employees' union had agreed to the policy of not compensating workers for this time...

Another Assistant Manager Case: The Time Bomb Keeps Exploding

Posted on March 08, 2010
Only a few weeks ago, I posted and commented upon the never-dying issue of whether Assistant Managers are exempt under the Fair Labor Standards Act and the threat of collective and class actions from these employees. That time bomb has gone off again, this time with an Assistant Manager working for Big Lots filing a collective action on behalf of allegedly 'hundreds' of similarly situated employees...

Plaintiff's Bar Seeks To Circumvent Class Action Fairness Act In FLSA Collective Actions

Posted on March 01, 2010
Five years ago, the Class Action Fair Act ('CAFA') was enacted to deal with the onslaught of class action cases and to ensure, if I may say, fairness in the manner in which these cases were litigated but it appears that the ever active and creative plaintiffs bar is coming up with new ways to allow cases to remain in state court, rather than going to federal court where perhaps they feel or believe that the chances of winning are slimmer...

Department of Labor Secures Large Dollar Overtime Awards for Katrina Workers

Posted on February 19, 2010
The US Department of Labor has resolved a legal action against a Texas company, Flour Enterprises Inc. for its failure to pay relief workers who participated in the Katrina clean up and rehabilitation efforts. The company will pay one million dollars to 154 workers...

Is It Working Time Or Not? Employer Compulsion Is The Key Element

Posted on February 11, 2010
The electronic giant, Best Buy, has requested that a judge approve a $900,000 settlement in a New York State wage-hour class action in which the plaintiffs sought payment for time worked 'off-the-clock.' That working time was the minutes spent going through security clearings at the end of the work day, assumedly to ensure that employees did not steal anything during their shifts...

The Difficulty of Fitting Employees Into The Administrative Exemption Rears Its Head Again

Posted on February 03, 2010
The Second Circuit Court of Appeals has reversed a lower court and held that a regional director of advertising sales for the Elite Traveler magazine was non-exempt under the Fair Labor Standards Act. The Court rejected the contention that the employee fell within the administrative exemption...

The Vagaries of the Professional Exemption Continue

Posted on January 25, 2010
In a January 21, 2010 posting in the New York Labor and Employment Law Report, Joseph Dole reported on a case entitled Young v Cooper Cameron Corporation, recently issued by the Second Circuit. The case concerned the applicability of the professional exemption to an individual performing engineering design work on sophisticated equipment...

Improper Overtime Calculation Leads to FLSA Collective Action

Posted on January 20, 2010
A federal judge has agreed to a settlement between the parties in a Fair Labor Standards Act ('FLSA') collective action where a group of former employees sued the employer, a cement company, for overtime. The case, filed in federal court in Florida, is entitled Webster v...

"Where's My Raise"--Webinair To Be Held January 27, 2010

Posted on January 11, 2010
If the economy rebounds in 2010, employees will be looking for enhanced raises to offset the dismal or non-existent raises of 2009. If the economy does not rebound, employers will be faced with tough decisions and even tougher conversations with their employees concerning this lack of increases...

Store Managers Always Pose Thorny Issue on Exemption Question

Posted on January 06, 2010
In a recent posting in the Connecticut Employment Law blog, http://www.ctemploymentlawblog.com/2009/12/articles/wage-and-hour/a-dollar-here-35-mi Steve Lavelle wrote about a recent case in involving the exemption status of Store Managers for Family Dollar Stores...

Law Firm Sued by Legal Secretary on Exemption Misclassification Theory

Posted on January 04, 2010
Law firms are usually defending clients in wage-hour suits where the allegation is that the employee claims he/she has been misclassified as exempt when they are really not and are due overtime. But, law firms themselves must be diligent about properly classifying their own employees, especially when they categorize employees exempt under the administrative exemption...

Independent Contractor Issues Will Remain in 2010

Posted on December 29, 2009
John Ho, in the New York Labor and Employment Law Report, writes that in difficult economic times, employers may resort more to the use of so-called independent contractors, to avoid all personnel/administrative costs affiliated with bringing statutory employees on board...

FLSA Donning and Duffing Class Action Defeated Because of Labor Contract Provision

Posted on December 17, 2009
I have posted a few times about Fair Labor Standards Act donning and doffing cases. The general rule is that donning and doffing is compensable if these preliminary and postliminary activities are integral to the performance of the employee's primary job...

US DOL Finds 4000 Nurses at SSM Health Care Owed One Million Dollars Over Missed Lunches

Posted on December 14, 2009
Under the Fair Labor Standards Act, there is no law requiring employees receive a lunch period or break times. However, when the employer gives time for lunch, the employees must receive at least thirty minutes and the time must be uninterrupted. Put differently, the employees must be completely relieved from duty...

Working Time FLSA Class Action Hits Amazon Over Punch In/Punch Outs

Posted on December 07, 2009
In what is a troubling trend, an employee of Amazon.com Inc. has filed a FLSA collective action for unpaid overtime. The thrust of the allegations is that the rounding policy, which rounds to the nearest fifteen minutes, violates the Fair Labor Standards Act and deprives employees of compensation for alleged productive working time...

Another FLSA Class Action on Exempt Status of Dispatchers: The Threat Grows

Posted on November 30, 2009
A federal judge has ruled that a dispatcher, who was suing as the named plaintiff in a FLSA collective action seeking overtime, was not able to prove that he was 'similarly situated' to other employees and this the judge refused to grant even the conditional certification necessary to keep the case going...

Judge Gives Early Thanksgiving Treat To Employer In FLSA Donning and Duffing Class Action

Posted on November 23, 2009
A federal judge in charge of a Fair Labor Standards Act ('FLSA') action involving workers for the turkey producer, Butterball, has rejected an attempt by the workers to compel the poultry company to adopt measures that would provide accurate records of the time workers took donning and doffing their special work clothing...

Motor Carrier Exemption FLSA Class Action Defeated On Interstate Commerce Issue

Posted on November 11, 2009
The federal motor carrier exemption from overtime, 29 USC 213(b)(1), which applies to safety workers (e.g. drivers) engaged in interstate commerce, has been found to exempt Ray's Trash Service, Inc. drivers from their right to overtime under the Fair Labor Standards Act even though the drivers do not cross state lines...

Mere Conclusions as to Employer Status will Result in Dismissal

Posted on November 09, 2009
In Chen et al. v. Domino's Pizza Inc. et al., the U.S. District Court for the District of New Jersey dismissed Domino's Pizza Inc. from a proposed class action. The action alleged that the company, and a select number of New Jersey franchisees, failed to pay delivery drivers proper overtime wages in violation of the Fair Labor Standards Act and the New Jersey Wage and Hour Laws...

Court Strikes Claims In US Steel/Steelworkers FLSA Class Action

Posted on October 27, 2009
In a case entitled Clifton Sandifer et al. v. U.S. Steel Corp. a federal judge has cut out some claims from a work time class action suit, but has allowed one major allegation to remain in the case. That cause of action involves whether the employees should be paid for the time spent in walking from their locker room to their work stations...

Affirming that Mere Speculation is not Enough to Sustain FLSA Claim

Posted on October 22, 2009
In Bailey et al. v. Border Foods Inc., the U.S. District Court for the District of Minnesota dismissed with prejudice a proposed collective and class action against a Pizza Hut franchisee after finding that the lead plaintiffs failed to adequately plead that their wages fell below the required minimum wage...

The Department of Redundancy Department: Class Action Style

Posted on October 22, 2009
In an unusual move, Rite Aid Corp. is seeking dismissal of an overtime class action filed by a former drugstore employee, asserting it is identical to another class action that had been previously filed and is still working its way through the courts...

The Employer Beats The Class To The Punch With A Dramatic Result!

Posted on October 08, 2009
In a ground-breaking decision, the Ninth Circuit Court of Appeals has set a path down for defendant-employers in Fair Labor Standards Act ('FLSA') class actions that is breathtaking in its simplicity and conclusive effect. In Vinole v. Countrywide Home Loans, the Court ruled that an employer need not wait until the close of discovery (which is very expensive and time-consuming) to file a motion seeking to deny class certification before the plaintiff moves to have the class certified...

Lock and Unload!: De Minimis Plus Failure to Mention Equals Dismissal of Class Action

Posted on September 30, 2009
In Albrecht et al. v. Wackenhut Corp., the U.S. District Court for the Western District of New York has dismissed a lawsuit in which approximately 115 security guards accused their employer, Wackenhut Corp., of violating the Fair Labor Standards Act and New York State Labor Law by not paying them for time spent arming up, checking through security and arming down...

I Told You So: The Offer Of Judgment Works!

Posted on September 23, 2009
A few weeks ago, I posted about a procedure that could be used to defeat FLSA collective actions before they got started. That was the Offer of Judgment procedure under Federal Rule of Civil Procedure 68. Although there were cases previously approving that dismissal process, there seems to be the beginning of a tide...

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