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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

The Misclassification "Flu" Is Going Around: Is Your Company Sick?

Posted on September 16, 2009
It appears that the U.S. Department of Labor and the Internal Revenue Service are planning to escalate their efforts, i.e. audits/inspections, focusing on (some might say, targeting) employers for their allegedly improper classification of individuals as independent contractors rather than employees...

Commission Class Action As Big A Threat As Misclassification Class Action

Posted on September 11, 2009
I have often written of the dangers from class actions based on misclassification theories, e.g. administrative exemption. There are working time actions, alleging illegal policies of making employees work off-the-clock as well. In a case entitled Clara Seamands et al...

You Can't Win For Losing: Even If Proper Classification Would Have Resulted in Lower Pay, Plaintiffs Still Get Damages!

Posted on September 10, 2009
In Somers v. Converged Access Inc., Massachusetts' highest court ruled that an employee misclassified as an independent contractor can seek damages from an employer even if the employer can show that the employee would have been paid less if properly classified...

In Hard Economic Times, The "Salary" Basis For Exempt Employees Is Evolving

Posted on September 04, 2009
In order to be exempt, an employee must perform certain duties and be paid a 'salary' as that term of art is defined. Employers/clients have been calling and inquiring whether they can reduce exempt employee salary, without jeopardizing the exemption...

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Lojack Accused of Stealing Time From Employees: A New Twist On De Minimis

Posted on August 31, 2009
The Ninth Circuit has largely upheld a lower court's grant of summary judgment to the defendant employer in Rutti et al. v. Lojack Corp., Inc. This case involved an alleged Fair Labor Standards Act violation that accused the defendant of failing to compensate its technicians for off-the-clock work...

Topless or Not, They're Employees, Not Independent Contractors

Posted on August 31, 2009
The reach of wage hour laws extends even into topless go-go bars, as a recent case has, perhaps humorously, demonstrated. In a case entitled Chaves v. King Arthur's Lounge Inc. a Massachusetts court has ruled that so-called exotic dancers who performed in a local strip club were employees, not independent contractors...

Class Action Focuses On Unpaid On-Call Time: A Sleeping Giant?

Posted on August 19, 2009
The issue of what constitutes working time is a gray one for employers. Especially murky is the question of when on-call time, i.e. waiting time, should be compensated. In a significant development, in a class action case entitled Green v ATT, filed in the Southern District of California ATT has been charged with depriving its information technology staff of overtime wages for on call hours, which are now claimed as working time...

They're Onto You

Posted on August 17, 2009
In these economic times, employers are classifying more workers as independent contractors in an effort to save costs, but employers should be warned that companies adopting this strategy may be abusing classification rules-and State and Federal entities are noticing...

Financial Employees Shot Down In Effort For Class Action

Posted on August 07, 2009
In a relatively rare occurrence, but one of special interest to financial services employers a federal judge has rejected an effort by a putative class of Citibank NA employees whose job duties focused on the recruiting of businesses to participate in the company's Bank at Work program...

Tipped Employees - Delegate with Caution

Posted on July 29, 2009
This week, Judge Ronald Guzman of the U.S. District Court for the Northern District of Illinois granted class certification in Ervin et al. v. OS Restaurant Services, Inc., a Fair Labor Standards Act suit accusing Outback Steakhouse of failing to pay minimum wage to employees at one of its locations...

The Commission Exemption: Are You A Retail Employer?

Posted on July 24, 2009
There is an exemption under the Fair Labor Standards Act for individuals who earn at least 50% of their compensation from commission, earn at least time and one-half of the federal minimum wage for all hours worked and who work in a 'retail' establishment...

The Russians Are Coming! The Russians Are Coming! (Into Court on FLSA Class Action)

Posted on July 16, 2009
In the 1960's, a movie came out entitled 'The Russians Are Coming! The Russians Are Coming!' It was about a Russian invasion of the United States. Well, a different kind of Russian invasion has hit our shores, but it takes the form of a class wage-hour action filed by Russian performers in a Las Vegas ice-skating revue, the 'Moscow Ice Circus...

Use Of Offer Of Judgment in FLSA Collective Actions To Dismiss Case

Posted on July 10, 2009
A FLSA litigation can drag on for an interminable time, drain legal and company resources and ultimately end up in settlement discussions where the biggest issue for negotiations are the plaintiffs' attorneys legal fees. There is an effective, tried and true manner to bring a FLSA collective action to a dispositive and less costly favorable resolution for a defendant...

Loan Officers Seek Bailout In Another Financial Services Industry Class Action

Posted on June 26, 2009
In a case entitled Sexton v. Franklin First Financial, Ltd, a federal judge has granted conditional certification to a FLSA collective action alleging Franklin First Financial Ltd. failed to pay overtime to a class of loan officers. This is the latest (and surely not the last) of a host of class actions filed under federal and state wage-hour laws, targeted at securing overtime for employees allegedly misclassified as exempt...

Salary Deductions Can Make Workers Lose Exempt Status

Posted on June 08, 2009
Employers cannot only think of job duties when it comes to ensuring that exemptions are maintained. Improper deductions from salary can undermine exempt status and, even with the revised FLSA regulations in place, which allow for corrections to be made without jeopardizing exempt status, mistakes can still be made...

Court Deals Blow to Employees' Proposed Class Action

Posted on May 26, 2009
In a proposed overtime class action against mortgage lender Ocwen Loan Servicing LLC, the United States District Court for the Southern District of Florida denied the plaintiffs' request to conditionally certify a lawsuit as a collective action and notify potential class members...

Classes and Sub-Classes: The Fun Never Ends For FedEx

Posted on May 11, 2009
A federal judge in California has certified five sub-classes of drivers alleging FedEx Corp. bilked them of pay for missed meal periods, off-the-clock work and working split shifts. The Judge found that common issues, a requirement of class-action certification, predominated in the five sub-classes of workers...

Truck Drivers Take Arbitration Highway To Overtime Class Action

Posted on May 06, 2009
As I have written, employees need not file class actions in a court in order to band together to seek overtime monies. Arbitration is a distinct possibility. In the recent case of Franco v Athens Disposal Company, Inc., a California appeals court has held that a trial court erred when it held that a class-action waiver in a company's arbitration agreement was enforceable...

The EEOC Does Not Trump The FLSA: Arbitrator Finds Overtime Violations

Posted on April 08, 2009
Not every allegation of FLSA violation or class action must weave its way through the courts for a resolution. Union members who feel aggrieved may challenge alleged improper pay practices through arbitration. In these settings, the Arbitrator will apply and incorporate federal laws, such as the FLSA, in order to render a decision on the alleged labor contract violations...

Ground Control to Major Tom: DOL Issues "Opinion" on Exempt Status of Pilots

Posted on March 26, 2009
I have often addressed the issue of Department of Labor Opinion Letters and how they provide very good guidance on the myriad wage-hour issues that employers must deal with. They are useful because they highlight the DOL's thinking on any given issue, which, if then followed by an employer, gives that employer a 'safe harbor' from any allegation that it has violated the Fair Labor Standards Act...

Is Training Time Working Time?

Posted on March 18, 2009
A federal court has ruled that an airline was not required under the Fair Labor Standards Act to compensate a prospective flight attendant for the periods of time that she attended a full-time training program that lasted five weeks. Interestingly, during this period, the trainee received free housing and an allowance for meals...

Timber! Loggers File FLSA Class Action

Posted on March 04, 2009

Exemptions Issues At The Heart Of Latest Drug Giant FLSA Class Action

Posted on February 18, 2009
Sales representatives of Novartis Pharmaceutical Corporation who brought a class action have been determined to be exempt employees under the Fair Labor Standards Act, thus bringing an abrupt end (for the plaintiffs) to the litigation. Federal district court Judge Paul Crotty, sitting in the Southern District of New York, has ruled that these employees were “outside salespersons” and exempt under that provision...

Starbucks Hit Again With FLSA Class Action: A Bitter Brew

Posted on February 06, 2009
A former Assistant Manager at a Starbucks has filed a collective action under the Fair Labor Standards Act (“FLSA”). The suit is for overtime on behalf of himself and a class of Assistant Managers who worked more than 40 hours per week but were not paid overtime compensation...

Start Printing The Money: United States Mint Sued in Class Action

Posted on January 16, 2009
The United States Mint failed in a bid to dismiss a wage-hour class action brought by a group of supervisors who allege they were misclassified as exempt. The government had argued that the Court lacked subject matter jurisdiction. The case was filed in March 2008...

Federal Judge Cuts Down Class of Pharmacy Technicians Suing CVS: A First? (Almost)

Posted on December 02, 2008
I have often observed that when a class is certified in a FLSA action, it is very difficult to cut that class down, or, in legalese, to de-certify that class. In a recent FLSA collective action involving CVS pharmacy technicians, entitled King v. CVS Caremark Corp, Dkt No...

Getting Paid For Waiting For Ice To Melt? Nice Work If You Can Get It

Posted on October 22, 2008
In a recent case entitled Gonzalez v. Tanimura & Antle Inc., a federal court in Arizona ruled that farm workers who waited in their employer’s parking lot until the ice melted from the crops they were going to pick were “engaged to be waiting,” rather than “waiting to be engaged” and therefore entitled to compensation for the time they spent waiting...

The Financial Services Industry: An Easy Target for Overtime Class Actions

Posted on October 15, 2008
A collective/class action lawsuit against Merrill Lynch, which is just getting under way in the US District Court for the Southern District of New York (sitting in Manhattan) has been temporarily placed in limbo while the litigants wait for the decision of an Oregon court, which may approve a $43...

Go-Go Dancers Claim They Are Employees, Not Independent Contractors, Want Overtime

Posted on September 22, 2008
In a lawsuit entitled Newark v Executive’s Den, filed in federal court in the Northern District of Ohio, dancers at a go-go bar, so-called exotic dancers, are suing their employer in a class action for failing to pay them the minimum wage and for, allegedly illegally, taking a portion of their nightly tips...

Delivery Workers Want Their Overtime Delivered: The Perils of Too Much Control Over a Contractor's Employees

Posted on September 15, 2008
A class action has been filed against DHL Express Inc., the well-known package delivery company, its contractor, Sky Land Express, Inc., and the individual owner of the contractor. The complaint was brought by a delivery worker, who was an employee of the contractor, alleging a failure to pay overtime...

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