Archives: Wage and Hour

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Toll Road Ahead: Fourth Circuit Rules Mixed-Fleet Interstate Truck Drivers May Be Entitled to Overtime Pay

Despite the overtime exemption provided by the Motor Carrier Act, interstate trucking employers who operate “mixed fleets” – those with vehicles both over and under 10,000 pounds – may owe overtime pay to drivers of the smaller vehicles, the Fourth Circuit Court of Appeals recently ruled.  Schilling v. Schmidt Baking Co., 2017 U.S. App. LEXIS … Continue Reading

Refinery Workers’ Pre-Shift Wait Time Not Compensable, Fifth Circuit Holds

Concluding that the unstructured time spent by the plaintiffs between arriving at the oil refinery and the beginning of their shifts was not “integral and indispensable” to their duties erecting scaffolds at the refinery, the Fifth Circuit held that this time was not compensable under the FLSA.  Bridges v. Empire Scaffold, LLC, 2017 U.S. App. … Continue Reading

Staffing Firms Benefit from Sixth Circuit Administrative Exemption Ruling

Staffing firms may have something extra to be thankful for this holiday season:  Finding that certain account managers exercised discretion and independent judgment when matching candidates with temporary positions, the Sixth Circuit Court of Appeals recently held that these temporary staffing firm employees fell within the FLSA’s administrative exemption.  Perry v. Randstad Gen. Partner (US) … Continue Reading

Ninth Circuit Concurs that Workweek, Not Individual Hour, is Relevant Timeframe for Determination of Minimum Wage Compliance

In an issue of first impression, the Ninth Circuit joined the Second, Fourth, Eighth and D.C. Circuits (and the position adopted by the Department of Labor) that, in determining whether an employer has complied with the minimum wage provisions of the Fair Labor Standards Act (“FLSA”), the proper inquiry is whether the total compensation for … Continue Reading

National Appliance and Electronics Retailer’s Sales Commission Policy Was Lawful – For the Most Part, Sixth Circuit Rules

In what may be viewed as a pyrrhic victory, now-defunct[1] “big box” electronics, appliance and furniture retailer hhgregg’s commission-with-draws compensation program generally was lawful under the FLSA, the Sixth Circuit Court of Appeals has held. However, its policy holding employees liable for any unearned draw payments upon termination of employment would violate the Act. Stein … Continue Reading

California to Hold Direct Contractors Jointly Liable for Subcontractor’s Unpaid Wages and Fringe Benefits

Beginning with contracts entered into on or after January 1, 2018, direct (general) contractors in California will be held jointly liable for their subcontractors’ unpaid employee wages, fringe benefit or other benefit payments or contributions under Assembly Bill 1701, signed into law by Governor Jerry Brown on October 14th. This joint liability requirement is codified … Continue Reading

DOL Confirms New Overtime Rule Coming (Updated 10/31/2017)

The U.S. Department of Labor confirmed on October 30, 2017 that it intends to “undertake new rulemaking with regard to overtime.”  While the DOL simultaneously filed an appeal of the district court order holding the prior overtime rule invalid, the DOL stated it intends to request that the Fifth Circuit “hold the appeal in abeyance … Continue Reading

DOL Confirms to OMB It Will Reverse Course on Yet Another Controversial Regulation, New Rule Will Reduce Restrictions on Tip Sharing

In recent years, one significant issue that has plagued industries employing tipped employees is whether the employers must ensure that tipped employees retain all of their tips even if the company is not using the employee’s tips to satisfy part of the minimum wage pursuant to the FLSA’s “tip credit” provision, 29 U.S.C. § 203(m). … Continue Reading

New York Department of Labor Issues Emergency Minimum Wage Regulations Regarding Home Healthcare Attendants, Controverting Recent Appellate Court Rulings

Citing the need “to preserve the status quo, prevent the collapse of the home healthcare industry, and avoid institutionalizing patients who could be cared for at home,” the New York Department of Labor (NYDOL) has issued emergency regulations to ensure consistency with longstanding opinion letters issued by the Department and to clarify that time spent … Continue Reading

Second Circuit to Decide Whether Court Approval of FLSA Settlements Applies to Accepted Offers of Judgment

Seeking to resolve a split among the district courts in the Second Circuit, the Court of Appeals has accepted an interlocutory appeal to decide whether, in resolving cases involving FLSA claims, offers of judgment under Rule 68 require DOL or judicial scrutiny and approval.  Yu v. Hasaki Restaurant, Inc., 2017 U.S. App. LEXIS 20698 (2nd … Continue Reading

Pump the Breaks: Employers Cannot Bypass Obligation to Compensate Employees for Short Rest Periods

Refusing to compensate employees for short breaks is prohibited by the FLSA, the Third Circuit has confirmed. Thus, an employer’s “flexible time” policy, under which employees were not paid if they logged off of their computers for more than 90 seconds, fails to comply with the Act when employees take breaks of twenty minutes or … Continue Reading

Intern or Employee? When “Take Your Children to Work” Day Backfires

In late April each year, tens of millions of employees and millions of employers participate in Take Your Sons and Daughters to Work Day. Of course, the vast majority of the child participants are elementary school kids, or perhaps young teenagers, who visit their parents’ workplaces for a few hours and then return to their … Continue Reading

Here’s a Tip, Minnesota: Discharging Employees for Refusing to Share Gratuities is Prohibited

Discharging an employee for refusing to share tips is illegal under the Minnesota Fair Labor Standards Act (MFLSA), according to the Supreme Court of Minnesota.  Burt v. Rackner, Inc., 2017 Minn. LEXIS 629 (Minn. Oct. 11, 2017).  In Burt the plaintiff, who was employed as a bartender, was told that he needed to give more … Continue Reading

Supreme Court Grants Certiorari (Again) to Address Circuit Split on FLSA Automobile Dealer Exemption

After effectively “punting” on the issue last year, the U.S. Supreme Court has again granted certiorari to resolve a circuit split regarding whether “service advisors” at automobile dealerships are exempt from receiving overtime under an exemption for “salesmen, partsmen, and mechanics” under the FLSA.  Encino Motorcars, LLC v. Navarro, No. 16-1362 (U.S. Sep. 28, 2017).  … Continue Reading

Waiting Without Pay for Nike’s Pre-Exit Bag Inspection? Just Do It – Maybe, or at Least Until the California Supreme Court Weighs In

Nike retail employees required to undergo post-clockout, pre-exit bag and coat checks are not entitled to compensation under California’s wage and hour laws for the time spent on such inspections, a federal district court has ruled.  Rodriguez v. Nike Retail Services, Inc., 2017 U.S. Dist. LEXIS 147762 (N.D. Cal. Sept. 12, 2017).  Assuming such inspections … Continue Reading

Department of Labor Moves to Dismiss Appeal on Obama-Era Overtime Rule (UPDATED 9/7/2017)

As anticipated following last week’s decision by the U.S. District Court for the Eastern District of Texas, striking down the Department of Labor’s May 2016 Final Rule regarding the FLSA’s “white collar” overtime exemptions, the DOL has asked the Fifth Circuit to dismiss its appeal of the district court’s preliminary injunction invalidating the Rule last … Continue Reading

North Carolina’s New Employee Misclassification Law: What Will Be the Practical Effect?

Effective December 31, 2017, the North Carolina Employee Fair Classification Act, signed into law on August 11th, creates the Employee Classification Section of the North Carolina Industrial Commission. This new Section will be authorized to receive and investigate reports by employees claiming to be misclassified as independent contractors, and to share information with other state … Continue Reading

Hair Today, Gone Tomorrow: Seventh Circuit Rejects Claim That Cosmetology Trainees Were Employees

Former cosmetology students are not employees entitled to pay under the FLSA and various state laws, the Seventh Circuit holds, rejecting the Department of Labor’s six-factor test but declining to adopt any bright-line test. Hollins v. Regency Corporation, 2017 U.S. App. LEXIS 15076 (7th Cir. Aug. 14, 2017). The plaintiff was a student enrolled at … Continue Reading

New Oregon Overtime Law both Giveth to, and Taketh Away from, Manufacturing Employers

Effective immediately, Oregon’s law has been clarified to provide relief to non-union employers operating mills, factories or other manufacturing facilities with respect to certain overtime pay obligations, but also has been revised, effective January 1, 2018, to limit the number of weekly hours employees in such establishments may work. Previously, the Oregon Bureau of Labor and Industries … Continue Reading

Department Of Labor To Rescind 2011 Tip Pooling Regulation

Today the Trump Administration, through the Office of Management and Budget’s Office of Information and Regulatory Affairs, released the federal government’s semi-annual Unified Agenda of Regulatory and Deregulatory Actions. This agenda provides public notice of the regulatory actions the various agencies of the Executive Branch anticipate taking in the coming year. Among the items listed … Continue Reading

DOL Opinion Letters Are Back

The U.S. Department of Labor announced today that it will reinstate the Department’s long-standing practice of issuing opinion letters to employers and employees regarding application of the Fair Labor Standards Act.   The Obama Administration eliminated opinion letters in favor of broader “Administrator Interpretations,” but those were few and far between.   “The letters were a division … Continue Reading

Georgia Law Endorses ‘On Call Scheduling’ Practice

Georgia’s governor recently signed into law a measure protecting Georgia employers from those pesky local laws seeking to regulate wages and hours.  The State already prohibits localities from enacting more favorable minimum wage and overtime laws than State law, but now Georgia’s tradition of promoting an employer-friendly environment, particularly for retail businesses and restaurants, has … Continue Reading

Federal Court In Illinois Rules Online Retailer Of Event Tickets Qualifies As “Retail Establishment” Under Section 207(i) Of The FLSA, Refusing to Defer to DOL Regulations

An online ticket broker that sells tickets to concerts, sporting events, and the theater qualifies as a “retail or service establishment” under Section 207(i) of the Fair Labor Standards Act (“FLSA”), Judge John Lee of the United States District Court for the Northern District of Illinois held. Blahnik v. Box Office Ticket Sales, LLC, 2017 … Continue Reading
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