"As the season for sweet onions ends, another onion farm labor dispute begins," observes Judge B. Avant Edenfield of the Southern District of Georgia in a new opinion, commenting upon the flurry of FLSA lawsuits filed in recent years in the American Southeast arising out of labor conditions at large farming concerns utilizing immigrant workers. Judge
Regular Rate
SDNY Judge Oetken Upholds Payment Of Overtime Pursuant To Fluctuating Workweek Method
By Noel P. Tripp on
Posted in Regular Rate
The technical requirements for paying overtime pursuant to the fluctuating workweek method set forth in 29 C.F.R. § 778.114, can be confusing. The regulation, for example, discusses an employee and employer having a clear mutual understanding that overtime will be paid pursuant to the fluctuating workweek (FWW) method. In a new decision analyzing the FWW method, …
U.S. House of Representatives Approves Compensatory Time Bill Along Party Lines
By Noel P. Tripp on
Posted in Regular Rate
Developing political momentum for the first time in several years, the Republican-sponsored Working Families Flexibility Act or comp time bill – which would permit private sector employers to pay premium overtime via compensatory time off rather than in cash if certain conditions are met – received another boost yesterday, with a House vote passing the …
Eleventh Circuit Addresses Undocumented Workers Right to Unpaid Wages Under FLSA and Calculation of Overtime Owed to Salaried Workers
By Noel P. Tripp on
The Eleventh Circuit has found that an individual who is not authorized to work in the United States can recover alleged unpaid wages under the FLSA, rejecting an employer’s argument that Supreme Court’s decision in Quality Inn in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), bars such claims.
In so…
District Court Finds Clear Mutual Understanding Necessary to Uphold Fluctuating Workweek Compensation Plan
By Noel P. Tripp on
Posted in Regular Rate
The requirements of paying overtime to a non-exempt employee pursuant to the fluctuating workweek method are generally straightforward and set forth in 29 C.F.R. 778.114: (1) the employee’s hours must fluctuate from week to week; (2) the employee must receive a fixed salary that is sufficient to provide compensation at a regular rate that is…
EDNY Judge Rules Suggested Gratuity Did Not Factor Into Overtime Calculation and Upholds Validity of Auto-Deduct For Meal Periods
By Noel P. Tripp on
Posted in Regular Rate, Tips and Tipped Employees
As discussed repeatedly in these pages and elsewhere, employers have faced innumerable lawsuits regarding their alleged failure to distribute amounts purported to be gratuities to service staff in their entirety. However, even distributing tip money dollar-for-dollar to service providers is not a panacea against wage claims, as highlighted in a new opinion issuing from the…
Seventh Circuit Upholds Pro-Employer Method of Overtime Calculation for Misclassified Employees
By Noel P. Tripp on
Posted in Damages, Regular Rate
The Fair Labor Standards Act requires employers to pay non-exempt employees one and one half times their regular rate of pay for any hours worked in a workweek in excess of 40. United States Department of Labor regulations, as set forth in 29 C.F.R. § 778.114(a), allow an employer to utilize the fluctuating workweek (“FWW”) method…
The Pitfalls Of Excluding Payments from the Calculation Of The Regular Rate Of Pay
By Noel P. Tripp on
Posted in Regular Rate
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…