Wage and Hour

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A named plaintiff who files a collective action for overtime pay under the Fair Labor Standards Act (FLSA), and whose individual claims are dismissed without prejudice because the district court lacks jurisdiction over the plaintiff’s former employer, is not entitled to tolling of the statute of limitations of those claims. Therefore, when the plaintiff subsequently…

In a June 9, 2023 filing with the U.S. Court of Appeals for the Fifth Circuit, the U.S. Department of Labor (DOL) stated that its Independent Contractor (IC) Final Rule, addressing the standard for determining whether a worker is an employee or “independent contractor” under the Fair Labor Standards Act (FLSA), will not be ready…

The U.S. Department of Labor (DOL) has issued guidance on the application of the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) to employees who telework from home or from another location away from the employer’s facility. Field Assistance Bulletin (FAB) 2023-1, released on February 9, 2023, is directed to agency…

Although not yet officially announced, Secretary of Labor Marty Walsh is expected to leave the Biden Administration soon, to become the Executive Director of the National Hockey League (NHL) Players Association. Secretary Walsh has served as the head of the Department of Labor (DOL) since the beginning of the Biden Administration in 2021.

During Secretary…

On January 23, 2023, President Biden re-nominated Jessica Looman to formally become the next Director of the Wage and Hour Division (WHD) of the Department of Labor (DOL). Ms. Looman originally was nominated for the position in August 2022 and made it out of the Senate Committee on Health, Education, Labor, and Pensions in late…

Since the COVID-19 pandemic began, thousands of pandemic-related lawsuits, including hundreds of putative class or collective actions, have been filed — and the number continues to grow. A large percentage of those lawsuits involve wage and hour claims, centered around issues including, but not limited to, failure to pay for pre-work COVID-19 screening and testing…

On October 13, 2022, the U.S. Department of Labor (DOL) published a Notice of Proposed Rulemaking (NPRM), seeking to revise the standard for determining whether a worker is an employee or “independent contractor” under the Fair Labor Standards Act (FLSA). The NPRM proposes to withdraw the current regulations, issued during the last days of…

On October 12, 2022, the Supreme Court held oral argument to address the decision of the U.S. Court of Appeals for the Fifth Circuit in Hewitt v. Helix Energy Sols. Group, Inc., 15 F.4th 289 (5th Cir. 2021), cert. granted, No. 21-984 (U.S. May 2, 2022), and a corresponding split among the circuit…

Although the plaintiff cable technicians, who were paid by the completed job and not by the hour, were covered employees under the Fair Labor Standards Act (FLSA), they nonetheless were bona fide commissioned employees and therefore exempt from the overtime requirements of Act, the Fifth Circuit Court of Appeals recently ruled. Accordingly, the district court’s…