Archives: Wage and Hour

Subscribe to Wage and Hour RSS Feed

Timber Harvesting Company Cannot Escape Overtime Liability, But Commute and Meal Break Time Should Not Have Been Included, Sixth Circuit Holds

Rejecting employer Timberline South’s argument, among others, that FLSA coverage did not apply because all of its timber harvesting occurred only within one state, the Sixth Circuit Court of Appeals nevertheless concluded that the commuting and meal break times should not have been included in the trial court’s calculation of overtime damages. Secretary of Labor v. … Continue Reading

Indiana Law Now Allows Paycheck Deductions for Uniform Rentals

Under an amendment to the state’s wage deduction statute, employers in Indiana may now deduct from an employee’s paycheck the rental cost of uniform shirts, pants, and other job-related clothing. The amendment, Senate Bill 99, was signed by Governor Eric Holcomb on May 1, 2019, and went into effect immediately. Michael Padgett, a Principal in the … Continue Reading

DOL Extends Comment Periods for Proposed Joint Employer and Regular Rate Regulations

Citing the interest expressed by “law firms, unions, and advocacy organizations, among others,” the U.S. Department of Labor (DOL) has extended the period for public comment on recently-issued Notices of Proposed Rulemaking (NPRM) regarding amendments to the regulations concerning determination of the “regular rate” of pay under the Fair Labor Standards Act (FLSA) and to … Continue Reading

California’s “ABC” Test for Independent Contractor Analysis to be Applied Retroactively, Ninth Circuit Holds

The U.S. Court of Appeals for the Ninth Circuit has dealt California employers another setback when responding to claims of misclassification of independent contractor status for violations of the Industrial Welfare Commission Wage Order (“IWC Wage Orders”), holding that the State’s recently-adopted “ABC” test must be applied retroactively. Vazquez v. Jan-Pro Franchising Int’l, Inc., 2019 U.S. App. … Continue Reading

Wisconsin Supreme Court Holds State Law Precludes Pay for Normal Commute Time in Employer-Provided Vehicles

Reversing a decision of the lower appellate court, the Wisconsin Supreme Court has held that state law does not require employers to pay employees for routine commute time driving company-provided vehicles between the employees’ homes and their assigned jobsites. Kieninger v. Crown Equipment Corp., 2019 WI 27 , 2019 Wisc. LEXIS 123 (Mar. 20, 2019).  The … Continue Reading

Supreme Court Holds Availability of Class Claims Must be Expressly Declared in Arbitration Agreements

Class action arbitration is such a departure from ordinary, bilateral arbitration of individual disputes that courts may compel class action arbitration only where the parties expressly declare their intention to be bound by such actions in their arbitration agreement, the U.S. Supreme Court has ruled in a 5-4 decision. Lamps Plus, Inc. v. Varela, No. … Continue Reading

When an FLSA Blended Rate Improperly Acts as a Regular Rate: A Case in Point

The Fair Labor Standards Act (FLSA) generally requires employers to pay non-exempt employees overtime pay at one and one-half times their “regular rate” of pay for all hours worked over 40 in a given workweek. The regular rate is the result of a math equation: The employee’s total compensation (with a few defined exceptions) paid … Continue Reading

Comment Period Now Underway for New DOL Overtime Rule

Earlier this month, the U.S. Department of Labor (DOL) issued a new proposed rule that intends to raise the annual minimum salary requirements for the FLSA’s “white collar” (executive, administrative, and professional) overtime exemptions to $35,308 ($679 per week), up from the current annual minimum of $23,660 ($455 per week).  A full discussion of this … Continue Reading

“Catalyst” Test Applicable to Awarding Attorney’s Fees for State Wage and Hour Claims, Massachusetts Supreme Judicial Court Holds

Rejecting the federal standard for determining whether a party has “prevailed” on his or her claim under the Massachusetts Wage Act, Mass. Gen. Laws ch. 149, §§ 148 & 150, the Massachusetts Supreme Judicial Court has held instead that the less-stringent “catalyst” test applies. As a result, plaintiffs who received $20,500 in a settlement under … Continue Reading

USDOL’s Wage & Hour Division Issues Internal Guidance Regarding Elimination of the “80/20” Tip Credit Rule

Last November, the United States Department of Labor (USDOL) issued Opinion Letter FLSA2018-27, rescinding the so-called “80/20” Tip Credit Rule, a provision that during the last decade had spawned a cottage industry of “80/20” cases.  These cases sought to dissect the duties of a server between those that allegedly generated tips and those that did … Continue Reading

Second Circuit Shears Cosmetology Student’s Claims in Intern-or-Employee Case

Concluding that a student at a for-profit cosmetology academy was the “primary beneficiary” of the hours he spent training at the academy’s salon, the Second Circuit Court of Appeals has upheld the district’s court’s determination that the student was an intern, and not an not employee entitled to minimum wage or overtime under the FLSA … Continue Reading

New Overtime Rule Soon to Make Its Appearance

The DOL’s new overtime rule, intended to replace the rule announced late in the Obama administration but subsequently declared invalid by a federal court, finally has made, or soon will make its way, to the Office of Information and Regulatory Affairs (OIRA), a division of the Office of Management and Budget (OMB), Bloomberg Law has … Continue Reading

California Piece-Rate Law Upheld by Court of Appeal

Rejecting an argument that the use of the phrase “other nonproductive time” rendered the statute unconstitutionally vague, a California Court of Appeal recently upheld the state’s law regarding compensation of piece-rate workers. Nisei Farmers League v. California Labor & Workforce Dev. Agency, 2019 Cal. App. LEXIS 10 (Cal. Ct. App. Jan. 4, 2019). Therefore, the … Continue Reading

DOL Eliminates Employer-Plaguing “80/20” Tip Credit Rule

The Department of Labor (“DOL”) today rescinded its prior guidance that made the tip credit unavailable for tipped employees who spend more than 20% of their time performing allegedly non-tip generating duties. The 20% limitation, contained in an internal DOL Field Operations Handbook, spawned numerous so-called “80/20” lawsuits, claiming servers spent too much time performing allegedly non-tipped … Continue Reading

U.S. Department of Labor Announces Creation of New Wage and Hour Compliance Outreach Office

Focusing on education to ensure compliance with the Fair Labor Standards Act, on August 28, 2018 Secretary of Labor Alexander Acosta announced the creation of the DOL’s new Office of Compliance Initiatives (OCI). That office has launched two new websites, one to provide employers with resources to assess wage and hour compliance, and the other to … Continue Reading

Department of Labor Issues Additional FLSA Opinion Letters, Acknowledges New “Fair Reading” Standard for Overtime Exemptions

In furtherance of a practice reinstituted earlier this year, on August 28, 2018 the DOL’s Wage Hour Division (WHD) issued four new opinion letters covering FLSA topics. The current administration began that practice when, in January of this year, it reinstated seventeen opinion letters originally issued during the George W. Bush administration but subsequently withdrawn … Continue Reading

Just as with the NLRA, the FLSA Does Not Preclude Collective Action Waivers in Arbitration Agreements, Sixth Circuit Holds

In a natural extension of the Supreme Court’s recent conclusion that the NLRA does not preclude the use of class or collective action waivers in employment-related arbitration agreements, the Sixth Circuit Court of Appeals has confirmed that such waivers are likewise permitted under the FLSA. Gaffers v. Kelly Services, 2018 U.S. App. LEXIS 22613 (6th … Continue Reading

Restaurant Industry Association Files Suit Challenging “80/20” Rule

The Restaurant Law Center, a public policy affiliate of the National Restaurant Association, has filed suit against the Department of Labor and its Wage and Hour Division, seeking to declare unlawful the DOL’s 2012 revision to its Field Operations Handbook, purporting to establish, through sub-regulatory guidance, the “80/20” tip credit rule or “20% Rule.” Restaurant … Continue Reading

Florida Federal Court Provides Path for Employer Recovery of Attorney’s Fees in FLSA Cases

In most lawsuits filed under the Fair Labor Standards Act (FLSA), an employer’s ability to recover any attorney’s fees under the prevailing standard – that a plaintiff filed the case in “bad faith, vexatiously or wantonly” – is much too difficult to satisfy.  A recent decision from the U.S. District Court for the Middle District … Continue Reading

Are Employers Willing to Risk Getting PAID?

(Updated 4/12/2018) Last month, the DOL announced the Payroll Audit Independent Determination program (“PAID”), a self-auditing program designed to encourage employers to uncover and voluntarily report potential minimum wage and overtime violations and avoid the risk of penalties or liquidated damages that would be imposed if the Agency discovered the violations in the first instance.  … Continue Reading

Department of Labor Issues Initial Guidance on Tip Pooling Amendment

This week the Department of Labor issued new guidance, in a “Field Assistance Bulletin,” on the recent amendment to the FLSA regarding tip sharing.  The recent amendment to the FLSA (which was included in the omnibus budget bill) bars “supervisors or managers” from retaining tips but expressly allows tipped workers to share tips with non-tipped … Continue Reading

Wisconsin Legislature Preempts Local Enactment of Wage and Hour Regulations

Joining more than two dozen other states that have barred local enactment of minimum wage or other employment laws, on March 22, 2018 the Wisconsin legislature passed Assembly Bill 748, intended to promote statewide uniformity in the regulation of employment practices. AB 748 prevents local governments and municipalities from enacting and enforcing their own ordinances … Continue Reading

California Supreme Court Adopts State Agency Formula for Calculating Overtime Value of Flat-Sum Bonus, Rejecting Federal View

The California Supreme Court has held that, under state law, when an employee earns a flat-sum bonus during a pay period, the overtime pay rate will be calculated using the actual number of non-overtime hours worked by the employee during the pay period. Alvarado v. Dart Container Corp., 2018 Cal. LEXIS 1123 (Cal. Mar. 5, … Continue Reading
LexBlog