Archives: Hours of Work

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Fifth Circuit Confirms Employer’s Right To Set Workweek For Payroll Purposes

Employees may have an understanding of their own “work week” for various employment purposes based on different business practices or employer scheduling.  However, with respect to calculating hours worked for purposes of determining overtime pay under the FLSA, DOL regulations simply require that an employer designate and use a standard work week for a given … Continue Reading

Maryland Judge Rules On-Call Time Non-Compensable Due To Freedom For Personal Activities

The issue of whether time spent “on-call” is compensable under the Fair Labor Standards Act is a factual analysis, and thus the source of FLSA litigation.  A recent decision finding such time to be non-compensable highlights a preeminent principle in the analysis – in order for on-call time to be non-compensable, an employee must be … Continue Reading

Supreme Court Accepts FLSA Certiorari Petition Regarding Pay for “Security Screening”

The Supreme Court agreed today to hear a case involving application of the Portal-to-Portal Act to employees who claim they should be compensated for time spent undergoing security screenings used to prevent employee theft.  Integrity Staffing Solutions, Inc. v. Busk, Case No. 13-433.   The employees allege they were required to undergo security screenings to prevent … Continue Reading

Fifth Circuit Affirms FLSA Summary Judgment Based On “Complete Lack Of Evidence” Of Off-the-Clock Work

Last week, the United States Court of Appeals for the Fifth Circuit affirmed the holding of a Texas district court that “an unsubstantiated and speculative estimate of uncompensated overtime does not constitute evidence sufficient to show the amount and extent of that work as a matter of just and reasonable inference.”  Ihegword v. Harris County … Continue Reading

Supreme Court Affirms Seventh Circuit: Donning of Protective Gear “Changing Clothes” Within the Meaning of FLSA Provision

Building on its prior rulings in so-called “donning and doffing” cases, the Supreme Court affirmed the Seventh Circuit’s 2012 decision holding that the donning of certain protective gear qualifies as “changing clothes” within the meaning of 29 U.S.C. § 203(o), and thus is susceptible to exclusion from the hours worked calculation under the terms of … Continue Reading

Seventh Circuit Rejects Claim For Alleged Unpaid Wages Finding Construction Firm Lacked Actual or Constructive Knowledge of Alleged Work

While the FLSA’s “suffer or permit” standard is broad, it is not without limit.  Building on a prior decision, the Court of Appeals for the Seventh Circuit reviewed several purported justifications for imputing knowledge of alleged additional work asserted by a construction employee and rejected claims of alleged unpaid wages asserted by the former employee. … Continue Reading

District Court Rejects FDNY Employees’ Bid To Be Paid For Commuting Time

The City of New York’s compensation practices received an endorsement last week from Southern District of New York Judge Loretta A. Preska, who ruled that employees of the FDNY’s Building Maintenance Division (“BMD”) could not recover under the FLSA for time spent commuting or time spent inspecting their vehicles.  Colella v. City of New York, … Continue Reading

Supreme Court Declines to Review Nurse’s Claim of Off-the-Clock Work In Contravention of Policy

Letting stand a decision of the Court of Appeals of the Sixth Circuit, the Supreme Court has denied review of an emergency room nurse’s claim for overtime based on work allegedly performed during unpaid meal breaks. White v. Baptist Mem’l Health Care Corp., U.S., No. 13-107, cert. denied 10/7/13. Plaintiff urged the Supreme Court to review the … Continue Reading

Federal Court Orders Trial Regarding Lady Gaga Assistant’s Wage Claims

In the still unresolved FLSA litigation concerning alleged unpaid overtime brought by a former personal assistant to entertainer Stefani Germanotta a/k/a Lady Gaga, Judge Paul Gardephe of the Southern District of New York has issued a lengthy ruling addressing some of the asserted claims and defenses. The Court concluded that plaintiff’s New York state law claims … Continue Reading

Supreme Court Accepts Review In FLSA “Donning/Doffing” Case

On February 21, 2013, the United States Supreme Court granted another FLSA certiorari petition, in the matter of Sandifer v. United States Steel Corp.  In the underlying litigation in Sandifer, the plaintiffs sought compensation under the FLSA for time spent donning and doffing certain protective gear.  Although the time spent donning and doffing these articles … Continue Reading

Federal Courts Finds Question of Fact as to “Employee” Status of Casino “Guides” and Related Issues

As we have detailed many times, the legal determination as to when an individual providing services is performing work which must be compensated under the minimum wage and overtime provisions of the FLSA is not always simple. This inquiry and related questions were at issue in Rui Xiang Huang v. J&A Entm’t Inc., 2012 U.S. Dist. … Continue Reading

Circuit Court Affirms Final Leg of Commute on Company Bus Is Not Compensable

While it is well established that standard commuting time from home to work (and back home again) is non-compensable, there is limited guidance as to application of this preliminary, non-compensable “commuting” window to the travel time associated with varying employment circumstances. Providing some clarity to employers within the Fifth Circuit (Texas, Louisiana and Mississippi), the Fifth … Continue Reading

Tenth Circuit Affirms District Court Ruling Rejecting “Off-the-Clock” Claim

The federal regulations to the FLSA impose recordkeeping burdens on employers (see, e.g., 29 CFR § 516.2) but those same records are most vital in assisting employers’ defense of claims of unrecorded work hours ("off the clock" claims). That utility was exemplified this week by a new decision from the Court of Appeals for the Tenth … Continue Reading

Florida Federal Judge Rules Business E-mails Sent During Lunch Not Compensable

While an employee must be paid for all hours worked under the FLSA, time which is “de minimis” may, depending on the circumstances, not be considered compensable “work.” Compensable “work” also does not include periods where the employer did not “suffer or permit” the employee to perform work. A federal judge in Florida recently invoked these concepts … Continue Reading

Appeals Court Rules That Change to Workweek, Even to Reduce Overtime Costs, Not Unlawful

Under the FLSA, entitlement to overtime pay for non-exempt employees is analyzed on a workweek basis, however, an employee must have a fixed and regularly recurring 168-hour workweek. 29 C.F.R. §§ 778.104, 105. The regulations do contemplate that an employer may modify the workweek on a prospective basis, provided the “change is intended to be permanent and … Continue Reading

New York Court Rejects Argument that Alleged Unpaid Off-the-Clock Work Is An Unlawful Wage Deduction

In the latest chapter in the series of cases brought throughout New York State involving compensation of Registered Nurses and other hospital medical support staff, Judge Norman A. Mordue recently rejected plaintiffs’ assertion that, by allegedly failing to include time spent working during meal periods in Plaintiffs’ hours worked, the hospital “deducted” from the plaintiffs’ … Continue Reading

Eleventh Circuit: Absence of Records Does Not Mean Plaintiff’s Assertion of Unpaid Work Hours Must Be Accepted

An employer’s failure to maintain proper records of hours worked by non-exempt employees results in an evidentiary burden shift in overtime cases. Rather than being entitled to rely on properly maintained records, the employer must rebut the employee’s claim of unpaid overtime provided the plaintiff supports his case with testimony leading to a “just and reasonable” … Continue Reading

Federal Judge Rejects Installers’ Claim for Overtime Pay Based on Time Spent Commuting Home In Company Vehicles

Employees who work at multiple work sites, such as cable installers and repair technicians, and often allege that their work requires them to perform certain tasks rendering what would otherwise be a non-compensable commute, compensable time.  Judge Robert C. Chambers of the Southern District of West Virginia recently rejected one such attempt. Davis v. Skylink LTD., … Continue Reading

Appeals Court: Bench Trial Findings Regarding Alleged Overtime Hours Were Proper

Ascertaining the actual “hours worked” by a plaintiff alleging uncompensated working time is one of a factfinder’s most thankless tasks, requiring the judge or jury to apply prevailing law regarding what constitutes compensable “work” to conflicting testimony regarding when, where and how the plaintiff performed that work, and how much work the plaintiff performed. Such determinations, … Continue Reading

Courts Decertify Collective Actions Based On Auto-Deduct Claims, Citing Individualized Issues

As we have repeatedly discussed, use of a so-called “auto-deduct”, wherein a predetermined amount of time is automatically deducted from an employee’s hours of work to correspond to a meal period with the understanding that the employee will perform no work during that period, can give rise to individual or class claims that an employee … Continue Reading

Lady Gaga’s Personal Assistant Sues for Overtime: “At Her Side” 24/7

Assisting Lady Gaga with her day-to-day needs may be a dream to many, but does it make one exempt from overtime pay? Under DOL regulations, an administrative assistant who is paid on a salaried basis and exercises significant independent discretion and judgment is exempt under the "administrative exemption." 29 CFR § 541.203(d). This is the same exemption that applies … Continue Reading

Seventh Circuit Finds Employee’s “Work” Not Compensable Due To Lack Of Employer Knowledge

The proliferation of FLSA lawsuits brought by “non-exempt” employees for alleged uncompensated working time has highlighted several important FLSA questions. One prominent and thorny question concerns when and how an employer is deemed to have constructive knowledge of work allegedly performed by an employee, such that the employer will be deemed to have “suffered or permitted” … Continue Reading
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