Yearly Archives: 2011

Lady Gaga’s Personal Assistant Sues for Overtime: “At Her Side” 24/7

Assisting Lady Gaga with her day-to-day needs may be a dream to many, but does it make one exempt from overtime pay? Under DOL regulations, an administrative assistant who is paid on a salaried basis and exercises significant independent discretion and judgment is exempt under the "administrative exemption." 29 CFR § 541.203(d). This is the same exemption that applies … Continue Reading

Seventh Circuit Finds Employee’s “Work” Not Compensable Due To Lack Of Employer Knowledge

The proliferation of FLSA lawsuits brought by “non-exempt” employees for alleged uncompensated working time has highlighted several important FLSA questions. One prominent and thorny question concerns when and how an employer is deemed to have constructive knowledge of work allegedly performed by an employee, such that the employer will be deemed to have “suffered or permitted” … Continue Reading

Red Cross Director Exercised Discretion and Judgment, Qualified for Administrative Exemption

Quantifying the necessary “discretion and independent judgment” required to qualify for the administrative exemption continues to divide courts, and the conclusion is often in the eye of the judicial beholder. This is especially so where discretionary authority must be measured without reference to monetary benchmarks or limits, such as those applicable to insurance adjusters or purchasing … Continue Reading

USDOL To Announce Proposed Domestic Service Rule Expanding Right To Overtime Pay

As we reported here, the Wage and Hour Division of the U.S. Department of Labor previously announced it would propose a rule regarding the applicability of the companionship exemption to the FLSA’s minimum wage and overtime requirements. This longstanding exemption was the subject of a rare Supreme Court opinion on FLSA issues, in which the Court … Continue Reading

Sullivan v. Oracle Confirmed As California Law by Ninth Circuit

In August, we discussed the California Supreme Court’s ruling addressing the circumstances under which a non-California resident can be covered by that state’s employee-friendly Labor Code.  Sullivan v. Oracle Corp., 51 Cal. 4th 1191 (2011).  Yesterday, the Court of Appeals for the Ninth Circuit adopted the state court’s ruling, rejecting Defendant’s constitutional challenges to that … Continue Reading

Arizona, Florida, Six Other States To Raise Minimum Wage For 2012 (And San Francisco, Too)

The state minimum wage is set to increase in eight states at the start of the new year.  By statute, many states review and revise their respective minimum wage annually, to reflect changes in the cost of living.  San Francisco, one of several municipalities with its own minimum wage law, will also increase its minimum … Continue Reading

New York Employers Must Issue First Annual Wage Theft Prevention Act Notice In January 2012

New York’s landmark Wage Theft Prevention Act, which was recently modified and adopted in California, requires employers to issue to all New York employees an annual notice complying with the requirements of New York Labor Law § 195 (as amended by the Act). While the statute was effective in April 2011, the annual notice requirement, which … Continue Reading

First Circuit Rules Banquet Sales Managers Exercised Discretion and Independent Judgment, Qualify for Administrative Exemption

We have repeatedly addressed the FLSA administrative exemption’s requirement that an employee exercise discretion and independent judgment, a concept which has confounded some courts and at times, led to inconsistent rulings. In a new decision, the Court of Appeals for the First Circuit (encompassing Rhode Island, Massachusetts, New Hampshire and Maine) has ruled that sales managers … Continue Reading

Supreme Court To Decide Classification of Pharmaceutical Representatives

The Supreme Court’s web site confirms that the nation’s highest court has granted the petition for certiorari filed by the pharmaceutical sales representative (PSR) plaintiffs in Christopher et al. v. SmithKline Beecham Corporation.  The Court will now review the Ninth Circuit’s ruling in Christopher that SmithKline properly classifies its pharmaceutical sales representatives as "outside sales" employees, … Continue Reading

Following Third Circuit Precedent, Pennsylvania Federal Judge Finds Pharmaceutical Representatives Are Exempt Administrative Employees

As the pharmaceutical community eagerly awaits the Supreme Court’s decision whether to grant certiorari in Christopher v. SmithKline Beecham Corp., courts within the Third Circuit (encompassing Pennsylvania, New Jersey and Delaware) continue to conform to the appeals court’s previous holding in Smith v. Johnson & Johnson, 593 F.3d 280 (3d Cir. 2010), that pharmaceutical representatives … Continue Reading

Ninth Circuit: California Wage Claims Do Not Usurp Public Utility Commission’s Jurisdiction

As we recently discussed, interplay between state wage-and-hour laws and other statutes (federal or state) is not always seamless, as neither the state wage statute nor the competing law or regulation at issue properly addresses the extent to which their scope might interfere with each other. However, as employment statutes, the wage-and-hour laws are often construed … Continue Reading

California Enacts Eerily Familiar “Wage Theft Prevention Act”

In April, we addressed at length New York’s newly-enacted “Wage Theft Prevention Act.” Now, through Assembly Bill 469, California has adopted a nearly identical law, the California Wage Theft Prevention Act. Effective January 1, 2012, the law increases the penalties available under existing provisions of the California Labor Code, and adds a detailed notice requirement to employees, echoing … Continue Reading

California Enacts Written Commission Plan Law

As discussed by our colleagues at the California Workplace Blog, California governor Jerry Brown has signed into law AB 1396, requiring all employers doing business in California to draft written contracts for any agreements with employees that involve commissions as a method of payment for services.  California joins New York in the vanguard of making … Continue Reading

California Court Finds State Meal and Rest Period Requirements Preempted by Federal Motor Carrier Regulation

While states generally are free to enact wage and hour laws providing greater protections than contained in the Fair Labor Standards Act, sometimes such laws run afoul of federal statutes governing particular industries. In a recent decision exemplifying this type of preemption, a judge in the United States District Court of the Southern District of California … Continue Reading

Non-Displacement Rule to Take Effect Under Service Contract Act

On August 29, 2011, the U.S. Department of Labor (DOL) published its final rule implementing Executive Order 13495.  This Executive Order, which was issued more than two year ago, generally requires contractors (including subcontractors) providing services under a federal government contract that succeeds a contract for performance of the same or similar services at the … Continue Reading

Motor Carrier Exemption Still Has Its Twists and Turns

The motor carrier exemption is one of the original exemptions contained in the 1938 Fair Labor Standards Act.   But seventy years later courts continue to clarify its contours. In just the past few months, several decisions have addressed the exemption—some addressing basic threshold issues and others addressing changes made by dizzying legislation passed between 2005-2008 affecting … Continue Reading

Court Rejects Estimator Plaintiff’s Attempt To Obtain Summary Judgment That She Was Misclassified As An Exempt Administrative Employee

Most commonly, where an employee challenges his or her classification by his or her employer as exempt in an FLSA lawsuit, the defendant seeks summary judgment (opposed by plaintiff), arguing that the employer can establish as a matter of law based on the undisputed factual record that the exempt classification was appropriate. Less often, a plaintiff … Continue Reading

New York Federal Court Upholds Classification Of Funeral Director As Exempt Learned Professional

The highly technical requirements of the FLSA’s learned professional exemption often result in findings that employees traditionally considered to be professionals are non-exempt. In order to satisfy the exemption, the employee must utilize advance knowledge that is “customarily acquired through prolonged academic instruction” when performing their primary duties In a new decision highlighting this analysis (as well as … Continue Reading

New York Federal Court Reiterates Second Circuit’s Narrow View of Protected Activity for Purposes of FLSA Retaliation Claims

As previously discussed, last March the Supreme Court ruled that the FLSA’s anti-retaliation provision protects “informal” complaints, i.e., unwritten complaints alleging violation of the FLSA are protected activity to support a retaliation complaint.  Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834 (Mar. 22, 2011). However, the Court declined to resolve the open issue of whether the … Continue Reading

Federal Magistrate Judge: Former Smelting Facility Employees Not Entitled To Compensation For Donning and Doffing of Protective Gear

Courts continue to analyze the compensability of preliminary and postliminary time: time spent before or after a non-exempt employee’s shift on certain tasks related to the performance of the employee’s job. Many suits allege the time spent “donning and doffing” of personal protective equipment (“PPE”) related to dangerous work environments (slaughter houses, power plants, etc.) must … Continue Reading

DOL Announces October 14 Public Meeting Regarding Proposed Child Labor Regulations

The United States Department of Labor (USDOL) recently announced proposed amendments to the regulations governing the employment of minors in agricultural occupations. Now, the USDOL has announced a public hearing regarding the proposal. The meeting, at which “interested persons” will be given an opportunity to comment on the proposed rulemaking, will be held on October 14, 2011 … Continue Reading

Massachusetts Federal Judge Issues Decision Expansively Interpreting FLSA’s Minimum Wage Obligations

As we have discussed, federal courts generally interpret the FLSA in conformity with longstanding FLSA principles stated in, among other seminal cases, United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487 (2d Cir. 1960). Under the Klinghoffer rule, the FLSA generally just mandates: 1) the payment of overtime at the regular rate for hours in … Continue Reading