Archives: Uncategorized

Subscribe to Uncategorized RSS Feed

Washington Supreme Court Clarifies State Meal Break Requirements

Under Washington State’s meal break statute, an employer must provide an employee working five or more consecutive hours a 30-minute meal period, although employees may waive the meal break under state law.  In answering questions certified to it by a federal district court, the Washington Supreme Court first explained that the statute does not provide … Continue Reading

Oral Argument on Overtime Rule Appeal Scheduled for October 2nd

The Fifth Circuit Court of Appeals tentatively has set oral argument for October 2nd on the Obama-era overtime pay rule that has been blocked from government enforcement by a federal district court in Texas since last November.  The DOL under the Trump administration already has backed away from the government’s previous position, asserting in its … Continue Reading

DOL Withdraws Joint Employer and Independent Contractor Administrator’s Interpretations

U.S. Secretary of Labor Alexander Acosta announced on June 7, 2017, the immediate withdrawal of two Wage and Hour Division Administrator’s Interpretations (“AIs”) on joint employment and independent contractor status issued by the Obama administration. Administrator’s Interpretation No. 2016-01, issued in January 2016, addressed joint employment under the Fair Labor Standards Act (“FLSA”) and Migrant … Continue Reading

United States Supreme Court Agrees to Review Class Action Waiver Cases

Earlier today, the United States Supreme Court granted certiorari in National Labor Relations Board v. Murphy Oil USA, Case No. 16-307, Epic Systems Corp. v. Lewis, Case No. 16-285 and Ernst & Young LLP v. Morris, Case No. 16-300, consolidating them for argument. The three cases present the question whether class action waivers in employment arbitration agreements … Continue Reading

Ohio Means Business: New Law Prohibits Cities and Counties From Enacting Paid Sick Leave, Predictive Scheduling, and Minimum Wage Laws

Imagine you operate multiple business locations in Columbus, Ohio where 3 counties comprise the city proper and as many as 11 counties comprise the larger Columbus Metropolitan Area. Now imagine that each of those counties adopts their own local ordinance requiring paid sick leave as well as advance notice (and extra pay) to employees before … Continue Reading

Fifth Circuit Grants DOL’S Request For Expedited Briefing of Preliminary Injunction Ruling; Case to Be Fully Briefed by January 31, 2017

In a December 8, 2016 Order, the Fifth Circuit Court of Appeals granted the DOL’s request for expedited briefing of its appeal of the preliminary injunction issued by a district court judge that had enjoined the DOL from implementing its regulation raising the salary level for the white collar exemptions.  The Court even set a … Continue Reading

DOL Appeals Preliminary Injunction Ruling to Fifth Circuit

On December 1, 2016, the Department of Labor appealed the district court’s preliminary injunction ruling.  It is expected that the DOL will request the Fifth Circuit to rule on the appeal quickly, but the Fifth Circuit may not grant this request, and the appeal may not be resolved prior to January 20, 2017.  If the … Continue Reading

New Pennsylvania Legislation Allows Payment of Wages by Payroll Debit Cards

Employers in Pennsylvania will be able to pay employee wages using payroll debit cards under an amendment to the banking code signed by Governor Tom Wolf on November 4, 2016. The new legislation goes into effect 180 days following the signing, on May 4, 2017. An alternative to payment of wages by direct deposits or … Continue Reading

Oklahoma Federal Court Finds Expense Reimbursement Need Not Be “Rolled In” To Overtime Calculation

Fixed payments made on other than an hourly basis to non-exempt (i.e., overtime eligible) workers often must be included in the regular rate of pay for purposes of calculating overtime.  One type of payment that may be excluded from the regular rate calculation is payment for “reasonable payments for travel expenses, or other expenses, incurred … Continue Reading

Court Finds Commissioned Jewelry Salesman Qualifies For Outside Sales Exemption Based On His Own Complaint’s Allegations

Because most FLSA exemptions are affirmative defenses, their applicability is not often established by the Plaintiff’s Complaint, of which s/he is “master” and can shape to avoid addressing exemption-triggering duties. There are exceptions. In a recent opinion, a Manhattan federal district judge ruled that a commissioned salesman who traveled from his home office to conduct … Continue Reading

Second Circuit: $350/Hour Sufficient Fee For Plaintiffs’ Counsel in FLSA Cases

One common impediment to resolution of FLSA claims is the amount of attorneys’ fees sought by the claimant’s attorney. One important factor in assessing an appropriate fee is the rate likely to be awarded by the Court should Plaintiff prevail in that jurisdiction. A new appeals court decision approves fixing that rate at $350/hour for … Continue Reading

Second Circuit Holds “Primary Beneficiary” Test Is Standard To Determine Employee Status Of Unpaid Interns; Likely Dooms Any Unpaid Intern Class and Collective Actions

The Second Circuit today issued two eagerly anticipated decisions addressing the standard that should be applied to determine whether unpaid interns at a for-profit employer are employees under the Fair Labor Standards Act (FLSA) entitled to compensation for services provided. Glatt v. Fox Searchlight Pictures, Inc., Nos. 13-4478-cv, 13-4481-cv (2d Cir. July 2, 2015); Wang … Continue Reading

Second Circuit Affirms Tennis Umpires Properly Classified as Independent Contractors

The Second Circuit recently held that the United States Tennis Association properly classified tennis umpires who handled the U.S. Open as independent contractors under the Fair Labor Standards Act and the New York Labor Law. In doing so, the court rejected the umpires’ claims for alleged unpaid overtime, as such laws do not apply to … Continue Reading

Minimum Wage Increases – Another Challenge For National Employers and Unintended Consequences For the Public

As with the recent uptick in state and municipal paid leave laws, employers in multiple jurisdictions now find themselves faced with a similar national bandwagon in favor of increased state and municipal minimum wage requirements, highlighted by the Los Angeles City Council’s recent decision to ratify a proposal moving that City’s minimum wage to $15 … Continue Reading

Pennsylvania Federal Court: Cosmetology Student Not An “Employee” Entitled To Minimum Wage

Last week, a Pennsylvania federal judge held that a former cosmetology school student was not entitled to minimum wage as an “employee” under the Fair Labor Standards Act or the Pennsylvania Wage Payment and Collection Law. Jochim v. Jean Madeline Educ. Ctr. of Cosmetology, Inc., 2015 U.S. Dist. LEXIS 45663 (E.D. Pa. Apr. 8, 2015). … Continue Reading

Origins of Wage-and-Hour Jurisprudence: Portland Terminal

Many current FLSA compensation issues which are the subject of widespread litigation – such as the current wave of intern cases – have their legal underpinnings in Supreme Court authority decided during the 1940s in the years following the enactment of the FLSA (1938) and the Portal-to-Portal Act (1947).  For example, courts seeking to interpret … Continue Reading

Nevada Supreme Court: Exotic Dancers Are Employees Under State’s Law

In a setback for that state’s thriving adult entertainment business, the Nevada Supreme Court yesterday ruled that Sapphire Gentleman’s Club improperly classified its 6000+ semi-nude performers as independent contractors rather than employees under Nevada’s minimum wage law.  Terry et al. v. Sapphire Gentlemen’s Club et al., case number 59214, 10/30/14. The Nevada court, citing policy … Continue Reading

Governor Cuomo Convenes Wage Board To Assess Minimum Wage and Related Regulations Applicable To Tipped Employees; Industry Watching and Waiting (and Preparing to Comment)

When the New York legislature enacted minimum wage legislation last year resulting in the series of increases  to the minimum wage currently underway, legislators reached a temporary agreement not to increase the cash wage applicable to most tipped workers under New York State’s Wage Orders ($5.00 per hour under the Wage Order applicable to the … Continue Reading

Minnesota Congressman Drives Attachment of Debarment Provision to Appropriations Bills

Debarment – a bar on a federal contractor from receiving business from the federal government for a period of years – which is usually based on a violation of a public prevailing wage statute (such as the Service Contract Act (SCA)), is the most draconian civil penalty levied against most contractors, particularly those whose core … Continue Reading

Maryland Judge Rules On-Call Time Non-Compensable Due To Freedom For Personal Activities

The issue of whether time spent “on-call” is compensable under the Fair Labor Standards Act is a factual analysis, and thus the source of FLSA litigation.  A recent decision finding such time to be non-compensable highlights a preeminent principle in the analysis – in order for on-call time to be non-compensable, an employee must be … Continue Reading

Ohio Judge: Mortgage Underwriters Properly Classified As Exempt Administrative Employees

The exempt status of loan officers continues to make headlines as the Mortgage Bankers Association presses for Supreme Court affirmance of its successful challenge to a DOL opinion regarding the applicability of the administrative exemption to those workers.  A new court decision highlights the fact intensive nature of exemption inquiries, and also the potentially misleading … Continue Reading
LexBlog