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U.S. Open Tennis Umpires Properly Classified As Independent Contractors

Service providers vendors (and those vendors’ employees) are free to assert claims that they  “employees” of the entity for which they are providing services under the FLSA under independent contractor misclassification and joint employer theories.  Service providers continue to do so despite limited success, the most recent example being Judge Andrew Carter’s (SDNY) summary judgment … Continue Reading

Florida Judge Holds That Oyster Shucking Not Part of “Agriculture” For The Purposes Of Migrant Workers’ Act

The Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. § 1801 et seq. (“AWPA”), provides certain protections to guest workers employed through the federal H-2B program.  This week, Judge Richard Smoak of the Northern District of Florida rejected a claim from workers employed pursuant to such program that their employment shucking oysters was covered … Continue Reading

Brooklyn Federal Court Finds Local Establishment Not Covered by FLSA

The high volume of FLSA litigation, particularly in jurisdictions such as New York and Florida, has in recent years forced many small businesses truly outside the scope of FLSA coverage to defend lawsuits brought pursuant to its minimum wage and overtime provisions.  Typically, these smaller employers attempt to address the issue of coverage early in … Continue Reading

Ohio Court Concludes That Construction Trade Association Is Not Joint Employer

In recent months, we have discussed courts adjudicating claims seeking to hold municipalities and business’ clients‘ liable as “joint employers” for alleged unpaid wages under the FLSA.  A new decision rejects a similar challenge brought with respect to a trade association.  IBEW, Local Union No. 8 v. King Elec. Servs., 2014 U.S. Dist. LEXIS 63462 … Continue Reading

General Contractors Defeat Claim of Joint Employer Status

Individuals employed by subcontractors in construction (and other industries) from time to time seek to go “up the food chain” and assert that control was exerted by general contractors on their job sites sufficient to render those general contractors “joint employers” for purposes of the wage laws.  The goal of couse is to hold such … Continue Reading

Eleventh Circuit Affirms: No Individual Coverage of “Local” Painter of Pleasure Boats

While FLSA coverage—both so-called “enterprise” based coverage and individual coverage of a specific worker—remains broad, such coverage generally does not extend to individuals who do not work for a covered enterprise and do not “directly participate in the actual movement of persons or things in interstate commerce.”  In reviewing a trial court decision, the Court … Continue Reading

Chamber of Commerce’s Amicus Brief Argues For Economic Value of Internships to Businesses, Employees and Students

As the Court of Appeals for the Second Circuit prepares to hear argument and ultimately rule in the consolidated appeal involving former interns for Hearst Publishing and Fox Searchlight seeking minimum wage under the FLSA, the Court received amicus submissions from several organizations, including the U.S. Chamber of Commerce, the largest employer association. The Chamber’s … Continue Reading

Supreme Court Declines Catsimatidis’ Invitation To Review FLSA Liability

Though the high court recently has accepted other petitions for certiorari on FLSA issues, today the Court declined Gristede’s owner and former NYC mayoral candidate John Catsimatidis’ request that the Court take up his case and review the imposition of individual liability imposed by the Second Circuit.  Catsimatidis v. Irizarry, 2014 U.S. LEXIS 1802 (2014).  … Continue Reading

Illinois Supreme Court Upholds Construction Industry Misclassification Statute

Illinois’ highest court upheld that state’s six year old statute imposing strict penalties for employee misclassification in the construction industry, the Illinois Employee Classification Act.  Bartlow v. Costigan, 2014 IL 115152 (Ill. 2014). In Bartlow, Rhonda and Jack Bartlow were partners in a roofing company who contested a finding under the Act made by the … Continue Reading

New York Legislature’s Second “Fair Play Act” Enacted to Cover Commercial Goods Transportation Industry

On the heels of similar legislation passed in 2010 for the construction industry, and consistent with the state’s continuing focus on alleged misclassification of service providers as independent contractors, the New York state legislature recently passed the Transportation Industry Fair Play Act, N.Y. Labor Law § 862 et seq.  This legislation creates a “presumption of … Continue Reading

Maine Judge Agrees with Colleague: No Individual Liability Under Maine Wage-and-Hour Law

While the definition of employer under the FLSA is broad, as the Court of Appeals for the First Circuit (encompassing Maine among other states) has noted, state law is not always consistent, as highlighted by a new federal court decision from Maine.  Saunders v. Getchell Agency, 2014 U.S. Dist. LEXIS 16728 (D. Me. Feb. 11, … Continue Reading

New York Federal Court Finds Bank Properly Classified Financial Services Consultant As Independent Contractor

Reviewing a working arrangement common in the financial services industry, particularly with respect to experienced professionals, Judge Katherine B. Forrest of the Southern District of New York recently upheld the Royal Bank of Canada’s (RBC) treatment of a “consultant” as an independent contractor under the federal and state wage/hour and anti-discrimination laws.  Sellers v. Royal … Continue Reading

Second Circuit To Issue Important Guidance On Legal Standards Applicable To Unpaid Interns

Recognizing the need to provide clarity to the business community in light of voluminous litigation, the United States Court of Appeals for the Second Circuit recently agreed to hear appeals in the Fox and Hearst intern cases.  Glatt v. Fox Searchlight Pictures Inc., Case Number 13-2467, 11/26/13.  The Court will examine the different legal tests and … Continue Reading

Supreme Court Declines Review of Intern Compensability Issue

While the compensability of time spent in internship programs continues to be an hotly contested litigation issue, the United States Supreme Court has declined an opportunity to provide clarity in this area, denying certiorari to a Florida medical billing intern whose claim was rejected last year by the Eleventh Circuit.  Kaplan v. Code Blue Billing … Continue Reading

District of Columbia Federal Court Rules Trade Association Not FLSA Enterprise

As we recently discussed, there are exceptions to the FLSA’s broad coverage provisions. One such FLSA exception pertains to organizations—often not-for-profits—which are not “enterprises”, defined as a person or persons performing related activities “for a common business purpose.” A recent decision from the United States District Court for the District of Columbia is instructive as the court … Continue Reading

More and More Interns Seeking Allegedly Unpaid Wages

Presumably buoyed by the district court ruling in Glatt v. Fox Searchlight Pictures Inc., 2013 U.S. Dist. LEXIS 82079 (S.D.N.Y. June 11, 2013), a number of copy-cat lawsuits have been filed by former entertainment industry interns in recent weeks in the Southern District of New York’s Manhattan courthouse seeking unpaid wages. Salaam, et al. v. Bad … Continue Reading

Massachusetts Supreme Judicial Court Issues Employee-Friendly Decisions

In two decisions issued this spring, the Supreme Judicial Court of Massachusetts, reversed decisions issued by Massachusetts lower courts and broadly interpreted the scope of Massachusetts wage law with respect to its extra-territorial reach and potential individual liability for violations. Taylor v. Eastern Connection Operating, Inc., 465 Mass. 191 (Mass. 2013); Cook v. Patient Edu, LLC, … Continue Reading

Reversing District Court, Eleventh Circuit Orders Trial of Cable Installers’ Claims of Misclassification Under FLSA

In a lengthy analysis of the “economic realities” test as applied to cable installers, the Court of Appeals for the Eleventh Circuit reversed Judge Elizabeth A. Kovachevich of the Middle District of Florida’s 2012 decision finding cable installers to be properly classified as independent contractors.  Scantland, et al. v. Jeffry Knight, Inc., et al., 11th Cir. … Continue Reading