Category Archives: Wage and Hour

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Let’s See You Flex – The Working Families Flexibility Act Passes the House and Proposes a New Option for Overtime

The House of Representatives passed at least two notable measures last week.  You probably heard about the new healthcare legislation, but you may not have heard about the Working Families Flexibility Act (WFFA). Though Republican representatives were not invited to a celebration in the Rose Garden following its passage, employers need to keep an eye … Continue Reading

When Off-the-Clock Isn’t Off-the-Clock: The Seventh Circuit Considers Employees’ Arguments that Employer Violated the Fair Labor Standards Act by Not Paying Overtime for Off-Duty Use of Work-Issued BlackBerrys

Remember that collective action that the Chicago police officers filed complaining that they weren’t paid overtime for checking their BlackBerrys off duty? Well, the cops lost at trial and now the U.S. Court of Appeals for the Seventh Circuit has it. Recall that 54 officers from the Bureau of Organized Crime Unit filed a collective … Continue Reading

C’est La Vie: No ‘Right to Disconnect’ in U.S., But Non-Exempt Workers Must Be Paid for ‘Connected’ Time

Could a “right to disconnect” become law in the U.S.? France is trying it. Effective January 1, a new French law went into effect giving workers a “right to disconnect” when not at work. French employers with 50 or more employees have to adopt written policies restricting the hours that workers can send or receive … Continue Reading

Emotional Rescue: Fifth Circuit Recognizes Mental Distress Damages in FLSA Retaliation Claim

Can a plaintiff get emotional distress damages in a wage and hour claim? In December 2016, the Fifth Circuit issued an opinion of first impression where it found that a plaintiff filing a retaliation claim as part of an overtime wage dispute can seek emotional distress damages. In Pineda v. JTCH Apartment, LLC, Santiago Pineda did … Continue Reading

STOP! Texas Federal Court Issues Nationwide Injunction to Department of Labor’s FLSA Salary Increases

An update on Department of Labor’s (DOL)’s controversial new overtime regulations regarding “white-collar” exemptions. With the U.S. DOL’s regulations increasing the minimum salary for white collar exemptions scheduled to take effect next week (December 1), a federal court in Texas today issued a nationwide injunction stopping (for now) the Fair Labor Standards Act (FLSA) salary … Continue Reading

Attention HR: The Antitrust Laws Apply To You Too!

Human resources professionals keep track of a number of laws and regulations administered by several different agencies. For the most part, HR departments have given little attention to federal antitrust law compliance. After all, isn’t antitrust law about anticompetitive mergers, monopolies, and price-fixing cartels? Not so fast.  In late October 2016, the two agencies tasked … Continue Reading

Two Big Lawsuits Challenge DOL’s New Overtime Regulations, But Don’t Get Your Hopes Up

The Regulations As we all know by now, Department of Labor’s (DOL) new regulations regarding the “white-collar” exemptions to overtime go into effect on December 1. These regulations raise the weekly salary requirement for the executive, administrative, and professional exemptions, as well as the annual salary requirement for the highly compensated employee exemption. The new … Continue Reading

West Coast—Time to Check Your Employment Agreements: Ninth Circuit Negates No-Class Action Clause in Arbitration Agreements

This week, the Ninth Circuit held that Ernst & Young’s (E&Y) arbitration agreement that prohibited its employees from filing class actions violates the National Labor Relations Act (NLRA). E&Y required as a condition of employment that its employees sign an agreement stating that they could not bring any class action or concerted claim regarding wages, … Continue Reading

Isn’t it Ironic, Don’t You Think? DOL Settles Overtime Claims With Its Own Employees

Last week, attorneys for the Department of Labor (DOL) employee union announced that the government agency had agreed to pay $7 million to settle an almost 10-year-old grievance by DOL workers who claimed they were not paid for off-the-clock work. The claim covered alleged compensable time from 2003 to 2013. Part of the claims were … Continue Reading

Hit by the Pitch: Federal Judge De-Certifies FLSA Class Action of Minor League Baseball Players

In a 100+ page opinion, federal Magistrate Judge Joseph Spero of the Northern District of California refused to grant the Plaintiffs’ motion to certify a class of minor league baseball players and instead granted the baseball clubs’ motion to de-certify. As noted in a previous blog post by my colleague, Matt Miller, minor league players … Continue Reading

Vive Les Email Liberte! French Law Locks Down Weekend Communications with Employees

In an effort to combat work-related burnout, the French government has a new labor law requiring employers with at least 50 employees to adopt written policies restricting the hours during which employees can send or receive emails, text messages, or any other digital, work-related communication. The goal is to cut the electronic leash that constantly … Continue Reading

Who Says Loan Underwriting is Boring and Mechanical? Sixth Circuit Rules Loan Underwriters Exempt from FLSA Regs

In the eyes of at least one Federal court, loan underwriting is not mechanical; it requires discretion and independent judgment. That point was a key factor in the Sixth Circuit Court of Appeals’ recent affirmance in Lutz v. Huntington Bancshares, Inc. of the dismissal of a class-action lawsuit filed on behalf of loan originators. The plaintiffs … Continue Reading

Birmingham Joins Seattle and San Francisco and Passes its Own Minimum Wage

Birmingham, Alabama is poised to join more than 15 cities across the country that have adopted a municipal minimum wage higher than the federal requirement. The federal minimum wage is currently $7.25 an hour but, unless the Alabama legislature takes action, many employees in Birmingham may get $8.50 per hour beginning March 1, 2016. The … Continue Reading

So Nice, You’re Considered Employed Twice: DOL on Joint Employment

On January 20, 2016, the U.S. Department of Labor’s (DOL) Wage and Hour Division issued an Administrator’s Interpretation that provides fresh guidance for determining when two or more entities will be considered joint employers for purposes of the Fair Labor Standards Act (FLSA). This new guidance follows last year’s DOL Administrator’s Interpretation on the misclassification … Continue Reading

Time Spent During Security Screening of Apple Employee Bags Not Compensable Under California State Law

Apple scored a decisive wage-and-hour victory when a California district court recently tossed a class action in which the plaintiff employees sought compensation for time spent undergoing exit bag searches to ensure they were not stealing Apple products from work. In Amanda Frlekin, et al. v. Apple Inc., the court determined that employee time spent … Continue Reading

Sixth Circuit Takes the Bait: Worm Farm Employees Fit Under FLSA Agricultural Exemption for Overtime

Providing legal scholars nationwide a unique opportunity to opine on worm-farming, the Sixth Circuit Court of Appeals held on Friday, October 2, that farm workers involved in the growing of bait worms are exempt overtime under the Fair Labor Standards Act (FLSA). The Silver Bait farm in rural Tennessee houses, grows and packages bait worms … Continue Reading

Upcoming Webinar: Independent Contractor or Employee? Avoiding Worker Misclassification Confusion

Is your company at risk of being told that your independent contractors are actually employees? If the Department of Labor (DOL) breaks this news to you, what are the labor implications? What are the tax obligations? What are your legal obligations to a third party? Join Bruce P. Ely, Summer Davis, and me next Wednesday, … Continue Reading

The U.S. Department of Labor Strikes Again – Worker Misclassification is (Still) a Hot Topic

Continuing the trend of exposing companies who have misclassified workers, the U.S. Department of Labor (DOL) has persuaded its latest target, Halliburton Co., to pay $18.3 million to compensate employees for unpaid overtime. During a self-audit, Halliburton discovered, and the U.S. DOL investigated and found, that several jobs in Halliburton’s oilfield operations were misclassified as … Continue Reading

President Obama Jumps On Netflix Bandwagon And Mandates Paid Sick Leave For Federal Contractors

In early August, Netflix announced that in addition to offering unlimited sick and vacation days, it would also allow employees to take unlimited paid parental leave. Refusing to be upstaged by the private sector, on Labor Day President Obama signed an Executive Order requiring all businesses that contract with the federal government to begin providing their … Continue Reading

FedEx Workers Ruled Employees, Not Independent Contractors – and the IRS Weighs In

Developments continue to come almost daily about misclassification of employees as independent contractors. Wage and hour cases, tax rulings, and discrimination charges all are part of the mix. We have blogged about worker misclassification extensively, covering the DOL guidance from July of 2015, the treatment of Uber and Lyft drivers, and, um, “entertainers” and “cheerleaders.” … Continue Reading
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