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
Time spent by employees in meal and other breaks continues to prompt litigation against public and private sector employers. In a recent decision, the Court of Appeals for the Third Circuit ruled that corrections officers at a Pennsylvania prison failed to allege a violation of the FLSA by challenging the County’s failure to compensate them … 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
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
Joining a decision issued last fall by Southern District of New York Judge Andrew Carter, Judge Ronnie Abrams has also ruled that time spent by New York City employees in alcohol counseling required by their job did not constitute “work.” Gibbs v. City of New York, 2015 U.S. Dist. LEXIS 7960 (S.D.N.Y. Jan. 23, 2015). … 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
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
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
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
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
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
In this post, we discussed two different courts’ analyses of hospital plaintiffs’ attempts to seek conditional certification of their claims that they were not paid for allegedly working meal periods due to the employers’ use of an auto-deduct for meal periods. In an opinion addressing such a claim on the merits (as opposed to the lower … Continue Reading
Wage and hour plaintiffs, like all plaintiffs, seek recovery from the largest, most viable defendants. Often, employees who separate from failing businesses seek to broaden the scope of the concept of “employer” within the meaning of wage-hour laws and include as defendants other potentially-liable parties with “deep pockets.” As discussed here, a federal court in Pennsylvania recently … Continue Reading
