Tag Archives: fifth circuit

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

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

Fifth Circuit Provides Guidance Regarding Occupations Which “Customarily And Regularly” Receive Tips

Attempting to provide clarity to a subject that is a regular source of litigation, the Court of Appeals for the Fifth Circuit has issued an extended, detailed analysis addressing the circumstances under which an employee’s position is “customarily and regularly” tipped for purposes of participating in a valid tip pool under 29 U.S.C. § 203(m). … Continue Reading

Fifth Circuit Affirms FLSA Summary Judgment Based On “Complete Lack Of Evidence” Of Off-the-Clock Work

Last week, the United States Court of Appeals for the Fifth Circuit affirmed the holding of a Texas district court that “an unsubstantiated and speculative estimate of uncompensated overtime does not constitute evidence sufficient to show the amount and extent of that work as a matter of just and reasonable inference.”  Ihegword v. Harris County … 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

Fifth Circuit Upholds Outside Sales Classification

The FLSA’s “outside sales” exemption from minimum wage and overtime is among the more straightforward exemptions, in that it contains only two requirements: that the employee be “customarily and regularly” away from the employer’s place of business; and that the employee primarily be engaged in making sales. This simple-sounding test does not preclude disputes regarding its … Continue Reading

Texas Federal Court Agrees With Employer: Gate Attendants Are Independent Contractors Within the Meaning of FLSA

The Department of Labor often challenges an employer’s independent contractor classification, even when such classification is a matter of long-standing, industry practice.  Such disagreements can result in DOL audits or even DOL litigation seeking alleged unpaid minimum wage and overtime, as well as private enforcement actions. In a recent victory for employers involving litigation brought by … Continue Reading

Contravening Eleventh Circuit, Fifth Circuit Finds No “Supervision” of FLSA Settlements Required Where Other Indicia of Fairness Are Present

For years, the conventional wisdom among FLSA practitioners has been that waiver of FLSA claims requires “supervision,” either from a court or the federal Department of Labor. This supervision requirement dates back to the seminal appellate case on the subject, Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350 (11th Cir. 1982). Since Lynn’s Food was … Continue Reading

Different Circuit, Different Result: Fifth Circuit Upholds Independent Contractor Classification Under FLSA

As discussed here, here and here, the issue of independent contractor classification under wage, unemployment, tax and other laws is omnipresent, continuing to arise in litigation and legislative reform. In a rare victory for employers in this regard, this week the Fifth Circuit Court of Appeals (encompassing Texas, Louisiana and Mississippi) affirmed a district court’s decision … Continue Reading

The Pitfalls Of Excluding Payments from the Calculation Of The Regular Rate Of Pay

In general, when calculating the regular rate of pay for purposes of determining overtime under the FLSA, all remuneration must be included.  This rule is subject to certain limited exceptions for, inter alia, discretionary bonuses and reimbursement of legitimate expenses.  But, if an employer decides to provide an hourly “per diem” and classify it as … Continue Reading
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