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State Plaintiffs Urge Fifth Circuit to Affirm Nationwide Injunction Blocking DOL Overtime Rule

In the latest round in the litigation between 21 States, led by the State of Nevada, and the Department of Labor regarding the Final Rule, the State Plaintiffs filed their appeal brief today with the Fifth Circuit, urging the Court to affirm the district court’s order, which issued a nationwide injunction blocking the rule.  “As … Continue Reading

Sen. Sanders, Other Members of Congress, File Amicus Brief in Support of DOL Salary Basis Regulation

Sen. Bernie Sanders, along with twenty-five other members of Congress, have filed an amicus brief in the Fifth Circuit Court of Appeals urging the Court to reverse the injunction issued by a Texas federal judge enjoining enforcement of the Department of Labor’s recent increase to the salary basis threshold for the white collar exemptions under … Continue Reading

Federal Court In Florida Is Latest To Reject DOL Regulation, Finds FLSA Does Not Require That Employees Receiving Full Minimum Wage Retain All Tips

While Department of Labor regulations interpreting the FLSA remain the primary source of employer guidance regarding the Act’s requirements, they are not necessarily the final word on what federal wage law requires. This is so even where they have been subject to “notice and comment,” triggering a higher level of judicial deference.  A federal court … Continue Reading

Second Circuit Affirms “Supervision” Doctrine Vis a Vis FLSA Settlements

Bringing some degree of clarity to the murky question of whether parties can dismiss a pending FLSA lawsuit on their own volition, the Court of Appeals for the Second Circuit has ruled that any dismissal with prejudice requires “the approval of the district court or the DOL to take effect.” Cheeks v. Freeport Pancake House, … Continue Reading

Utah’s Highest Court Finds LLC Managers Were Not Employers Under State Wage Law

When small entrepreneurial ventures collapse, disputes sometimes arise regarding who constituted an “employee” of the business and whether they were paid proper wages.  As the venture has failed, the issue of individual liability often is raised.  In a new decision, Utah’s highest court clarifies that Managers of a limited liability company are not liable for … Continue Reading

Florida Judge Holds That Oyster Shucking Not Part of “Agriculture” For The Purposes Of Migrant Workers’ Act

The Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. § 1801 et seq. (“AWPA”), provides certain protections to guest workers employed through the federal H-2B program.  This week, Judge Richard Smoak of the Northern District of Florida rejected a claim from workers employed pursuant to such program that their employment shucking oysters was covered … Continue Reading

Brooklyn Federal Court Judge Reiterates And Expands on Prior Opinion Regarding Plaintiff’s Attorneys’ Fees

As the volume of FLSA litigation remains high, an impediment to resolving such cases (even where the underlying claimant’s wage claim already has been resolved) is the issue of the appropriate fee to be paid to counsel representing the worker pursuant to the fee shifting provision of the FLSA and/or applicable state labor law.  Central … Continue Reading

Third Circuit Joins Second Circuit In Rejecting Vague Pleadings of FLSA Violations

The Court of Appeals for the Third Circuit has joined the Second Circuit’s recent opinions requiring plaintiffs in FLSA cases to provide more than generalized allegations regarding hours worked in order to satisfy the the Supreme Court’s Iqbal/Twombly standard (all arising in the medical setting).   Davis v. Abington Mem. Hosp., 2014 U.S. App. LEXIS 16472 … Continue Reading

Brooklyn Federal Court Finds Local Establishment Not Covered by FLSA

The high volume of FLSA litigation, particularly in jurisdictions such as New York and Florida, has in recent years forced many small businesses truly outside the scope of FLSA coverage to defend lawsuits brought pursuant to its minimum wage and overtime provisions.  Typically, these smaller employers attempt to address the issue of coverage early in … Continue Reading

Fifth Circuit Confirms Employer’s Right To Set Workweek For Payroll Purposes

Employees may have an understanding of their own “work week” for various employment purposes based on different business practices or employer scheduling.  However, with respect to calculating hours worked for purposes of determining overtime pay under the FLSA, DOL regulations simply require that an employer designate and use a standard work week for a given … Continue Reading

Second Circuit Rejects Plaintiff’s Tolling, Willfulness Arguments

Reviewing a district court’s dismissal of FLSA claims which were not timely filed within the FLSA’s two-year limitations period for non-willful violations, the Court of Appeals for the Second Circuit found no error in the lower court’s two findings that: 1) plaintiff failed to create a question of fact as to willfulness in order to … Continue Reading

Florida Court Requires Pre-Suit Notice For Claims Under Florida Minimum Wage Act

Florida has maintained a separate minimum wage requirement since the 2005 passage of the Florida Minimum Wage Act (“Act”), which was authorized by the Minimum Wage Amendment (“Amendment”) to Article X of the Florida Constitution.  Since then, courts have disagreed as to whether the Amendment provides the right to a separate cause of action to … Continue Reading

New York Federal Court Upholds Payment of Overtime Pursuant to Fluctuating Workweek Method Notwithstanding Bonus Pay

Uncertainty and litigation have ensued in the wake of the Department of Labor’s May 5, 2011 Final Rule regarding application of the fluctuating workweek method of overtime compensation (FWW) authorized by 29 CFR § 778.114, specifically the Rule’s commentary on the payment of incentive compensation to employees compensated via FWW.  In a thorough recent decision, … Continue Reading

Fifth Circuit Reiterates Appropriate Calculation of Damages For Employees Misclassified as Exempt

In a decision issued on August 16, 2013, the Court of Appeals for the Fifth Circuit, building on its now-venerable ruling in Blackmon v. Brookshire Grocery Co., 835 F.2d 1135 (5th Cir. 1988), reversed a trial court ruling that refused to apply the “half time” measure of damages in an FLSA misclassification case. Ransom v. M. … Continue Reading

More and More Interns Seeking Allegedly Unpaid Wages

Presumably buoyed by the district court ruling in Glatt v. Fox Searchlight Pictures Inc., 2013 U.S. Dist. LEXIS 82079 (S.D.N.Y. June 11, 2013), a number of copy-cat lawsuits have been filed by former entertainment industry interns in recent weeks in the Southern District of New York’s Manhattan courthouse seeking unpaid wages. Salaam, et al. v. Bad … Continue Reading

Citing Supreme Court’s AmEx Decision, Second Circuit Upholds FLSA Collective Action Waivers

In an eagerly anticipated decision, last Friday the United States Court of Appeals for the Second Circuit issued its decision in Sutherland v. Ernst & Young. Applying the Supreme Court’s recent holding in American Express v. Italian Colors, the Court held that plaintiff Sutherland is obligated to pursue her claims for wage claims against Ernst … Continue Reading

Second Circuit Finds Gristede’s Owner to Be Individually Liable “Employer” Under FLSA

Reviewing a district court decision issued two years ago, the United States Court of Appeals for the Second Circuit has affirmed a ruling finding John Catsimatidis, the CEO and owner of New York-area grocery chain Gristede’s (and a New York Mayoral Candidate), individually liable for wages under the FLSA based on the “economic realities” of … Continue Reading

Oxygen Network and Parent NBC Succeed in Compelling Arbitration of Class Wage Claims

With the policy behind arbitration embodied in the Federal Arbitration Act (FAA) reinforced by a series of Supreme Court decisions (Stolt-Nielsen (2010); Concepcion (2011) and Greenwood (2012)), employers continue to implement mandatory arbitration programs under the FAA. Among the many reasons to consider implementation of such a program is the utility of a class/collective action waiver … Continue Reading

5-4 Supreme Court Affirms Dismissal of Collective Action Based on Employer’s Settlement Offer

Issuing its second sharply divided procedural opinion in as many months with ramifications for wage-and-hour practitioners, the Supreme Court yesterday ruled that a Pennsylvania nursing facility’s “offer of judgment,” which would have provided full relief to the sole putative collective action representative, effectively “mooted” her case.  Accordingly, no collective action could proceed even though the … Continue Reading

New York State Court Issues Injunction Preventing Eviction of Tenant-Employee With Pending Asserted Wage and Hour Claims

Injunctive relief is infrequently sought in wage-and-hour litigation, which typically focuses on whether an employer properly paid wages for time periods which already transpired, as well as for any period after the filing of an action where the challenged practice means unchanged. However, injunctive relief can be available in FLSA cases. In a prime example, a … Continue Reading

Court Holds Minority Owner of Construction Business Not Employer Under FLSA

FLSA litigation against medium-sized businesses continues, and a common tactic  in such cases is to assert that one or more owners or managers of the business is the plaintiff’s "employer" under the statute, and thus individually liable for the allegedly unpaid minimum wage and/or overtime. See generally Herman v. RSR Sec. Servs., Ltd., 172 F.3d 132 … Continue Reading
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