In 2010, the Ninth Circuit held in Cumbie v. Woody Woo, Inc., that an employee’s property right to tips attaches under the FLSA only if the employer is taking a tip credit pursuant to 29 U.S.C. § 203(m). In response to this decision the Department of Labor passed widely discussed-regulations which, contrary to the decision
Ninth Circuit
Federal Court in Arizona Also Questions Need for Supervision of FLSA Settlement
As we recently discussed, the Court of Appeals for the Fifth Circuit called into question the FLSA’s long-standing judicial supervision requirement, creating a split of authority between its decision rejecting the supervision requirement where other indicia of fairness are present, and the Eleventh Circuit’s 1982 decision relied on by courts which requires supervision (…
Ninth Circuit Provides Guidance on Scope of State Administrative Exemption to IT Workers
Applicability of various FLSA white collar exemptions to workers in the information technology sector continues to be a detailed and difficult analysis, in part due to the Department of Labor’s rules regarding the “computer professional” exemption, which have failed to keep up with the rapidly evolving workforce in the technology sector of the economy. The computer…
Sullivan v. Oracle Confirmed As California Law by Ninth Circuit
In August, we discussed the California Supreme Court’s ruling addressing the circumstances under which a non-California resident can be covered by that state’s employee-friendly Labor Code. Sullivan v. Oracle Corp., 51 Cal. 4th 1191 (2011). Yesterday, the Court of Appeals for the Ninth Circuit adopted the state court’s ruling, rejecting Defendant’s constitutional challenges…
Appellate Court Holds That Social Workers Employed By The State of Washington Are Not Exempt “Learned” Professionals
Disputes regarding the application of the FLSA’s “learned” professional exemption can arise where many – but not all or even “most” – holders of a given position possess specific or substantially-job related academic credentials, but others do not. This is so due to some courts’ narrow interpretation of the learned professional exemption’s requirement that the position…
Another Petition for Certiorari to US Supreme Court Filed Seeking Clarity As to FLSA Status of PSR’s
As often discussed in this space and elsewhere, Courts continue to widely differ in their analysis as to whether the administrative and/or outside sales exemptions are applicable to pharmaceutical sales representatives. Now, the Supreme Court will have another opportunity to weigh in on the applicability of the outside sales exemption to such employees, as the plaintiffs…
Supreme Court Declines to Review Drug Reps Classification Issue
Despite the Circuit split created by this month’s decision from the Ninth Circuit, holding that pharmaceutical sales representatives are outside sales employees within the meaning of the FLSA, the Supreme Court has declined to take up Novartis’ appeal of the adverse ruling it received on this issue from the Second Circuit. The Supreme…
Ninth Circuit Decision Highlights Concerns With Independent Contractor Classification
In a decision reiterating important independent contractor issues for employers, the Ninth Circuit Court of Appeals last week reversed a lower court decision holding that certain delivery drivers were properly classified as independent contractors under various provisions of the California Labor Code. Narayan v. EGL, Inc., 2010 U.S. App. LEXIS 14279 (9th Cir. July…
Lojack Revisited: Commuting Time Can Be (Surprise) Compensable Under California Law
The Ninth Circuit recently revised and reissued its earlier opinion in Rutti v. Lojack Corp., No. 07-56599 (9th Cir. Mar. 2, 2010), holding upon further review that the Plaintiff’s commuting time is compensable under California law, while continuing to find that such time is not compensable under the FLSA. The Court did not change…
How Broad is the Ninth Circuit’s Woody Woo Decision?
The Ninth Circuit Court of Appeals recently ruled that the FLSA does not restrict employer-mandated tip-pooling arrangements when no tip credit is taken by the employer against the minimum wage obligation. Cumbie v. Woody Woo, Inc., et al., No. 08-35718 (9th Cir. Feb. 23, 2010). Further, the Court rejected the DOL’s regulation at 29…