Archives: Hours of Work

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Commute Time Is Compensable Only When “Integral and Indispensable” to Employee’s Duties, Fifth Circuit Reaffirms

Upholding the trial court’s dismissal of an FLSA collective action, the Fifth Circuit Court of Appeals reiterated that an employee’s commute time is compensable only when the commute is “integral and indispensable” to the employee’s job duties. Bennett v. McDermott Int’l, Inc., 2021 U.S. App. Lexis 10948 (5th Cir. Apr. 16, 2021). The Fifth Circuit … Continue Reading

Wisconsin Wage and Hour Law: Rounding Employee Time

Wage and hour claims, particularly those asserting class or collective violations, comprise a significant percentage of employment law claims across the country, and Wisconsin is no exception. Improper rounding and other timecard policies frequently are the culprit in such claims against employers. Wage and hour lawsuits, whether individual or class/collective action in nature, typically are … Continue Reading

DOL Issues Opinion Letters Regarding Pay Calculations for Teleworkers, In-Home Caregivers

On the last day of 2020, the Wage and Hour Division of the U.S. Department of Labor (DOL) ushered out the year with two new Opinion Letters. These may be the final two Opinion Letters of the Trump Administration and perhaps the last two for a while, depending on whether the Biden Administration continues the … Continue Reading

Pandemic Necessitates Review of “Donning and Doffing” Policies

As federal and state safety and health guidelines in response to the COVID-19 pandemic call for extensive use of personal protective equipment (PPE) in the workplace, employers should give their policies on “donning and doffing” a fresh look. Pandemic-related reopening orders issued by state and local governments may include requirements that will require employers to modify their … Continue Reading

Truck Drivers’ Sleeper Berth Time Is Presumptively Not Compensable Under the FLSA, DOL Concludes

In a welcome reversal of its prior guidance, on July 22, 2019, the U.S. Department of Labor (DOL) concluded that if a truck driver, or driver’s assistant or helper, is completely relieved of duty and is provided with adequate sleeping facilities (including the truck’s sleeping berth), the individual is not “working while riding” and therefore … Continue Reading

Lack of Alignment Between Employer’s Payroll Workweek and FLSA “Workweek” Results in Overtime Liability, First Circuit Holds

Although the Fair Labor Standards Act (FLSA) includes an overtime exception for employees who reside on the work premises for an “extended” period of time – at least 120 hours in a “workweek” – that exception is inapplicable if an employer’s payroll workweek does not coincide with an employee’s scheduled workweek for at least that … 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

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

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

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

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

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

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

Jersey City Seeks To Establish Minimum Workweek Floor of 30 Hours for Building Services

While many laws regulate the payment of wages for long hours (the broadest and most famous of these being the FLSA’s overtime requirement), few if any statutes purport to require workweeks of a certain length.  However, that is exactly what Jersey City, NJ has now attempted to do in a new ordinance requiring a 30-hour … Continue Reading

Fifth Circuit: Employer Has Right to Mandate Employee Compliance with Overtime Reporting Procedures And Is Not Liable When Employee Fails to Follow Procedures

Overtime claims based on alleged “off the clock” work often turn on the question of whether the employer has “suffered or permitted” the employee to work uncompensated hours in excess of forty in the workweek. The Court of Appeals for the Fifth Circuit has affirmed a Mississippi district court’s finding that an employer did not … Continue Reading

Court Finds Employer Entitled to Flexibility Under FLSA In Determining Employee’s “Workweek”

Under the Fair Labor Standards Act, covered employers must pay non-exempt employees overtime wages for hours worked in excess of forty in a workweek. To comply, while employers must define the workweek, they retain the flexibility to do so as they see fit, as demonstrated by venerable Brooklyn-based federal Judge Jack Weinstein in a new … Continue Reading

Corrections Officers’ Pleading Did Not Establish That County Was “Primary Beneficiary” Of Unpaid Meal Period

Time spent by employees in meal and other breaks continues to prompt litigation against public and private sector employers. In a recent decision, the Court of Appeals for the Third Circuit ruled that corrections officers at a Pennsylvania prison failed to allege a violation of the FLSA by challenging the County’s failure to compensate them … Continue Reading

Applying Integrity Staffing., Federal District Court Holds that Time Spent at Pre-Shift Safety Meetings Is Not Compensable Under the FLSA

Joining similar decisions applying the Supreme Court’s interpretation of the Portal-to-Portal Act in Integrity Staffing Solutions, Inc. v. Busk, Senior District Judge Terrence F. McVerry of the Western District of Pennsylvania recently held that time spent attending allegedly mandatory pre-shift safety meetings was not compensable under the FLSA because those safety meetings were neither “principal … Continue Reading

Applying Integrity Staffing, Ninth Circuit Holds that Firefighters’ Time Moving Gear to and from Temporary Assignments is Not Compensable Under the FLSA

Applying the Supreme Court’s unanimous decision in Integrity Staffing Solutions, Inc. v. Busk, the United States Court of Appeals for the Ninth Circuit recently ruled that firefighters are not entitled to compensation under the FLSA for time spent moving certain necessary gear to and from temporary work assignments at fire stations other than their “home” … Continue Reading

Court Rejects Nurses’ Generalized Claim of “8 to 12” Uncompensated Hours Based on Employer’s Time Keeping Protocols

The best defense for employers confronted with claims of “off-the-clock”, (i.e., unrecorded) work under the FLSA are accurate contemporaneous time records created by employees based on clearly communicated time keeping practices. The effectiveness of such records was recently demonstrated in Roberts v. Advocate Health Care, 2015 U.S. Dist. LEXIS 103631 (N.D. Ill. Aug. 7, 2015). … Continue Reading

Following Supreme Court Direction, Maryland Federal Court Rules Waiting Time Not Compensable

The United States Supreme Court’s 2014 decision in Integrity Staffing clarified that, under the Portal-to-Portal Act, preliminary and postliminary tasks are not compensable even if potentially done for the employer’s benefit, provided they are not integral and indispensable to the job functions for which a person is hired. Applying this concept, a Maryland Federal Court … Continue Reading

California Judge Rejects Overreaching Hours Worked Allegation Contained in Plaintiffs’ Pleading

Employers (and thus courts) continue to be confronted with private litigation and DOL rulemaking seeking to expand the scope of wage-and-hour liabilities, such as expanding the definition of employee, seeking to narrow the scope of a longstanding exemption or expanding the definition of what constitutes compensable work. Rejecting a claim based on the latter theory, … Continue Reading
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