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
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
The FLSA generally governs only the payment of minimum wages and overtime. It does not govern unpaid wage claims that do not result in a minimum wage or overtime violation—e.g., a claim brought by an employee that he worked 39 hours, but was only paid for 35 (sometimes referred to as a “gap time” claim). … Continue Reading
The Fair Labor Standards Act requires payment for all hours an employer suffers or permits an employee to work. This standard is broad, and an employee’s timesheet is not a panacea against claims that he or she worked additional time where managerial employees may have corrupted that timesheet, either directly or through their communications to … 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
Demoralized by the attendant costs of litigation and a shifting compliance environment in numerous jurisdictions, many hospitality industry employers have resolved wage-and-hour lawsuits brought in New York City and elsewhere over the last number of years. Bucking this trend, one such employer recently successfully defended its wage practices at trial. Mendez v. Int’l Food House, … 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
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
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
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
Courts continue to analyze the compensability of preliminary and postliminary time: time spent before or after a non-exempt employee’s shift on certain tasks related to the performance of the employee’s job. Many suits allege the time spent “donning and doffing” of personal protective equipment (“PPE”) related to dangerous work environments (slaughter houses, power plants, etc.) must … Continue Reading
While this space frequently discusses decisions adjudicating the merits of FLSA plaintiffs’ “off-the-clock” claims, allegations that employees were not compensated for all hours worked, FLSA collective action litigation often does not reach this merits stage of the proceeding. Frequently, courts first review plaintiffs’ claims in the context of determining whether FLSA plaintiffs are “similarly situated” – … Continue Reading
The ubiquity of class and collective action lawsuits under the FLSA and state wage and hour laws requires employers to remain ever vigilant with respect to their wage practices. The ferocity of the plaintiffs’ bar is such that even seemingly settled FLSA doctrine is subject to attack. Recently, a federal district court in Illinois rejected one such … Continue Reading
As previously discussed, a federal court in the Western District of New York issued several important rulings in an FLSA case brought by a retail specialist responsible for the stocking, pricing and display of Black & Decker products at six Home Depot stores. In an omnibus decision reviewing all of these district rulings, the Second Circuit … Continue Reading
The FLSA requires that employers pay employees for all work time, as well as for any time that the employee is “engaged to wait.” An employee is “engaged to wait” when the employee is idle, but is constrained with respect to engaging in personal activities. Thus, the employee’s time is deemed to be “for the benefit” … Continue Reading
Reinforcing the importance of properly crafted and enforced work-time tracking policies, Judge Michael Telesca of the Western District of New York recently dismissed the balance of a plaintiff’s claims in a lawsuit alleging failure to compensate non-exempt employees for all overtime hours. The Court based its decision on the employer’s strong time tracking policies and protocols. Kuebel … Continue Reading
