Archives: Wage and Hour

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Fifth Circuit Grants Request to Delay Appeal on Federal Overtime Rule

The appeal regarding the validity of the federal overtime rule will not be fully briefed until May 1, 2017, according to an order issued by the Fifth Circuit on February 22, 2017, granting an unopposed request by the Department of Justice for an extension. When the Department of Labor first appealed the nationwide injunction issued … Continue Reading

Fifth Circuit Grants Government Request for Additional Time to State Position on Overtime Rule

Before the election the Department of Labor asked the Fifth Circuit Court of Appeals to expedite its appeal regarding the validity of the DOL’s Final Rule, which increased the salary level for the white collar exemptions.  Earlier this week, however, following the inauguration of President Trump, the Department of Labor made the opposite request, asking … Continue Reading

DOL Requests Additional Time to “Consider Issues” Before Filing Reply In Support of Salary Basis Rule

Earlier today, the Department of Labor filed an unopposed motion to extend the deadline for its next submission in support of its appeal of the salary basis rule injunction.  The motion for extension requested until March 2, 2017 to submit the Department’s reply brief to the Fifth Circuit, and expressly stated that the extra time … Continue Reading

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

DOL Requests Expedited Ruling on Appeal of Preliminary Injunction, But Appeal Will Not Be Decided Before Trump Administration Under Proposed Schedule

On December 2, one day after filing its appeal of the preliminary injunction blocking its new salary basis regulations, the DOL filed a request for expedited briefing and oral argument in the appeal.  The DOL has requested that the Fifth Circuit Court of Appeals set an expedited schedule whereby briefing would be complete on February … Continue Reading

Did the DOL Salary Basis Regulations Just Get Trumped?

Jackson Lewis Principal Eric Magnus contributed to this post. The U.S. Department of Labor regulations raising the required salary level for the white collar exemptions (executive, administrative, and professional) under the Fair Labor Standards Act are scheduled to become effective December 1, 2016.  Since the results of Tuesday’s election, some employers are considering whether to … 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

New Arizona Law Permits Parties To Establish Presumption Of Contractor Status Through Writing

As covered at length here, Arizona has enacted a new law effective August 6, 2016 allowing businesses and service providers seeking to enter into an independent contractor relationship to execute a “declaration of independent business status.”  A declaration complying with the statute creates a presumption of proper classification of the relationship between the parties as … Continue Reading

Federal Court In Georgia Rejects DOL Regulation, Rules FLSA Does Not Require That Employees Receiving Full Minimum Wage Retain All Tips

On July 26, 2016, Judge William S. Duffey of the United States District Court for the Northern District of Georgia issued a decision holding that an employer does not have to ensure tipped employees retain all of their tips if the company is not using the employee’s tips to satisfy part of the minimum wage … Continue Reading

Congress Approves Puerto Rico’s Reprieve From Salary Basis Increase

As discussed in detail here, the Senate has approved the Puerto Rico Oversight, Management, and Economic Stability Act (“PROMESA”).  Among other provisions, PROMESA stays applicability of the new salary basis rule to Puerto Rico until the Comptroller General of the United States further analyzes the economic impact of such application, and the Secretary of Labor (taking the … Continue Reading

ESL Teachers At Private Learning Center FLSA “Teachers” Exempt from Overtime

Earlier this week, in a matter of first impression within the Second Circuit, Judge P. Kevin Castel of the Southern District of New York held that employees who teach English as a second language (“ESL”) at a privately-owned ESL learning center qualify for the professional exemption under the FLSA as “teachers.”  Fernandez v. Zoni Language … Continue Reading

DOL Announces Salary Threshold

News outlets are reporting that the new salary basis rule will take effect on December 1, 2016, and require a salary of $47,476 per year ($913/week).  Reports also indicate that the new rule will require an update of the salary threshold every three years, as opposed to annual increases.  This effective date provides employers a … Continue Reading

DOL Expected To Issue Final Regulation Regarding Overtime Exemptions On Wednesday

The Department of Labor is expected to issue its long-awaited Final Rule regarding the white collar exemptions on Wednesday, at an event in Ohio attended by Vice President Biden and Secretary Perez, Politico reports.  It is expected the Final Rule will increase the salary level requirement for white collar exemptions to approximately $47,000, and provide … Continue Reading

Jersey City Seeks To Establish Minimum Workweek Floor of 30 Hours for Building Services

While many laws regulate the payment of wages for long hours (the broadest and most famous of these being the FLSA’s overtime requirement), few if any statutes purport to require workweeks of a certain length.  However, that is exactly what Jersey City, NJ has now attempted to do in a new ordinance requiring a 30-hour … Continue Reading

Wynn Marketing Executive Host Is Exempt Administrative Employee Due To Exercise of Discretion

Earlier this week, the U.S. Court of Appeals for the Ninth Circuit issued an unpublished decision affirming summary judgment in favor of Wynn Las Vegas with respect to overtime claims asserted by a Slot Marketing Executive Host.  Dannenbring v. Wynn Las Vegas, LLC, 2016 U.S. App. LEXIS 5715 (9th Cir. Nev. Mar. 28, 2016). Concluding … Continue Reading

Ninth Circuit Affirms: Not All Complaints About Work Policies Relating to Hours “Protected Activity” Under the FLSA

The substantive provisions of the FLSA protect covered non-exempt employees’ right to receive minimum wage and, as applicable, overtime pay.  The statute’s anti-retaliation provision is co-extensive: it protects employees from termination or other adverse employment action in response to complaints that those provisions were violated.  The FLSA however does not extend anti-retaliation protections to employees … Continue Reading

New Jersey Court: Meal Preparation, Other Tasks Properly Part of “Companion” Duties Under Old Test

In 2013 the Department of Labor announced new regulatory language that substantially limited the scope of the Fair Labor Standards Act’s companionship exemption. Those regulations, of course, were challenged through litigation which remains ongoing, and their implementation by the USDOL was delayed until many months after the original effective date of January 1, 2015. Though … Continue Reading

Louisiana Federal Court Rules Half-Time Method Applies to Calculation of Any Alleged Unpaid Overtime and Bonuses Paid Offset Any Potential Liability

Courts addressing FLSA misclassification claims brought by employees classified as salaried exempt workers must determine damages. In a new decision from the United States District Court for the Eastern District of Louisiana, Judge Jane Triche Milazzo ruled that successful Plaintiffs in one such misclassification case are only entitled to “half-time” damages. Further, the Court ruled … Continue Reading

Indiana Court Rejects Claim that Scholar-Athletes Are Employees under FLSA

Last week, an Indiana federal court dismissed a lawsuit brought by former University of Pennsylvania (“Penn”) athletes against the National Collegiate Athletic Association (“NCAA”) and a number of its member schools over their alleged employment status and corresponding minimum wage protection under the FLSA. Berger, et al. v. NCAA, et al., S.D. Ind., No. 1:14-CV-01710, … Continue Reading

Fifth Circuit: Employer Has Right to Mandate Employee Compliance with Overtime Reporting Procedures And Is Not Liable When Employee Fails to Follow Procedures

Overtime claims based on alleged “off the clock” work often turn on the question of whether the employer has “suffered or permitted” the employee to work uncompensated hours in excess of forty in the workweek. The Court of Appeals for the Fifth Circuit has affirmed a Mississippi district court’s finding that an employer did not … Continue Reading

SCOTUS to Resolve Circuit Split Regarding Whether “Service Advisors” Are Exempt From Overtime and Consider Deference Owed to USDOL

On Friday, the United States Supreme Court agreed to resolve the current split among the Circuit Courts regarding whether “service advisors” are exempt from overtime under the 213(b)(10) exemption, an exemption applicable to any “salesman, partsman, or mechanic” who is primarily engaged in “selling or servicing automobiles.” Both the Fourth and Fifth Circuits have held … Continue Reading

Second Circuit Affirms: Business Not Obligated to Pay $350,000 “Performance” Bonus to Prospective Employee Who Never Worked A Day

Last year, a Manhattan federal district judge reviewed a decision of a federal bankruptcy court and held that Lehman Brothers was not required to pay a $350,000 performance bonus referenced in the offer letter of a prospective employee who never provided services. In doing so, the Court observed that the Firm terminated the contractual relationship … Continue Reading
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