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
Counsel for wage-and-hour plaintiffs often argue – in settlement negotiations and in court – that the plaintiff’s burden under Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946), applicable if there are no records of hours worked, renders the employee’s recitation of events unassailable. This position misstates the law, as reflected in the … Continue Reading
Employers defending FLSA overtime claims brought by employees are often frustrated when such claims include alleged “off the clock” work despite the fact that the business properly maintained records of hours worked. A new decision rejects one such allegation. Gilson v. Indaglo, Inc., 2014 U.S. App. LEXIS 20828 (11th Cir. 2014). The sales employee plaintiffs … Continue Reading
Joining the ranks of states which have enacted a specific statute to address the payment of wages via payroll debit card, Illinois Governor Pat Quinn last Wednesday signed legislation regulating payroll debit card practices in the state. The new law is generally consistent with the Illinois Department of Labor’s recent historical enforcement practice, in that … Continue Reading
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
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
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
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
As previously noted here, New York Governor David Paterson has signed into law the Wage Theft Prevention Act. The new law amends the New York Labor Law to create new recordkeeping obligations for employers, as well as significantly greater damages for violations of the Labor Law than previously were available. An expanded analysis of … Continue Reading
As most employers know, the United States Department of Labor has extensive regulations regarding the nature and scope of records employers covered by the Act must maintain. See 29 CFR § 516.1, et seq. Many state laws contain analogous provisions. See, e.g. NY Labor Law § 195. While violations of these recordkeeping requirements can lead to civil penalties, (standing alone … Continue Reading
As discussed here, an employer’s maintenance of accurate records of hours worked by employees is not only a substantive requirement of the FLSA, but an essential component to defending against “off the clock” claims. But what happens if an employee brings such a claim and the employer has not maintained records? Is the employer defenseless? The … Continue Reading
On Friday, May 21, 2010, the Department of Labor, Wage and Hour Division held a public Stakeholder Forum, during which key members of the Wage and Hour Division (WHD) discussed WHD’s goals and regulatory agenda. Jackson Lewis attended the Forum. After welcoming the crowd, Nancy Leppink, the WHD Deputy Administrator pointed out some of WHD’s accomplishments … Continue Reading
During the week of April 26, senior Labor Department officials discussed upcoming rules and initiatives. In a web chat, Nancy Leppink, deputy administrator of the Wage and Hour Division, stated that the agency will issue proposed rules covering numerous areas including companionship services, child labor and recordkeeping within the next 18 months. The proposed recordkeeping rules are … Continue Reading
