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Computer Exemption Case Settles: Discretion Is The Better Part Of Valor

Exemption class actions, i.e. lawsuits alleging misclassification, continue to pop up in different contexts and concerning different classifications. A bank has just agreed to settle a case by paying more than $2 million to...more

When Does Travel Become Compensable Work Hours?

I blog a lot about working time cases because these are the issues can sneak up on an employer, even the most well intentioned and good faith employer. Travel time is one of these murky, arcane kind of activities that go...more

Donning and Duffing Cases Keep Happening: The Danger Of Off-The-Clock Activities

Working time cases come in all sizes and shapes. Many of these off-the-clock cases are so-called donning-and-duffing cases involving clothes changing for work and whether it is compensable. The U.S. Department of Labor has...more

Harvard University Gets Lesson In “Higher Education” In Independent Contractor Case

Classification issues are annoying ones, to state the obvious. Especially decisions and issues as to who is and who is not an independent contractor. And, it does not matter whether the defending entity is a mom-and-pop candy...more

USDOL Voluntary Compliance/Self-Audit Program Leaves Uncertainty

The U.S. Department of Labor has announced a new self-audit program that allows employers to avoid litigation by “turning themselves in.” This is drawing some praise but there are a number of issues that remain unaddressed,...more

A Waiting Time/Bag Inspection Case Where The De Minimis Defense Actually Worked!

I have blogged several times recently on the rash of “check bag” cases that have percolated through the courts. Another example. A class of workers employed by Converse Inc. have now asked the Ninth Circuit to revive a class...more

Retaliation Sometimes Follows FLSA Lawsuit Filing—It Shouldn’t!

I am always telling clients who are sued in FLSA actions not to take any actions against employees who may still be working for them (which, admittedly, is not the case very often) because that will make things dramatically...more

Arbitration Of Wage Hour Claims Controversy Continues Unabated

The controversy over whether employees must arbitrate wage claims continues with full force. A federal judge has just sent to arbitration a claim by an employee that the Company violated the Fair Labor Standards Act by not...more

When Does Accrued Sick Time Become Wages? The Employer Can Dictate That

An issue often facing employers, in every state, is: when does sick time or vacation time become wages and under what conditions should these days be paid out, especially when an employee separates employment. The Supreme...more

Eddie Bauer Security Check Waiting Time Case Gets Certification: What Is “Working Time”?

What is working time? There are many variations on this theme, some far grayer than others. When does waiting time become working time? Is the employee engaged to be waiting or waiting to be engaged? If the former, then it is...more

Renaissance Of USDOL Opinion Letters Is An Encouraging Development

I have often blogged about the usefulness of USDOL (or any DOL) Opinion Letters and I have lamented that this procedure was stopped under President Obama. I hailed that the new Secretary of Labor was going back to it. Well,...more

New Intern Test Announced By USDOL: Definitive Guidance?

I have blogged many times about the rash of intern cases that have popped up over the last few years. Now maybe there will be a consistent, uniform test for determining whether interns are really statutory “employees.” The US...more

Admissions Director Exemption Issue May Impact Whether She Is Entitled To Pay For On-Call Hours

I have blogged about and have long been concerned about working time issues and what constitutes compensable work hours. One of the thorniest of these issues is on-call time and when, if at all, on-call hours become working...more

Ninth Circuit Finds Beauty School Students Were Not Employees

There have been a great many intern cases recently, cases testing whether interns crossed the line into being statutory employees and therefore covered by the FLSA. I have blogged about these kinds of cases and have...more

Arbitration Provision In Handbook Withstands Judicial Scrutiny In Dismissing FLSA Collective Action: Another Magic Bullet!

There has been a great deal of litigation about class action waivers in Employee Handbooks and use of arbitration mechanisms in Employee Handbooks to preclude judicial litigation. A recent New Jersey federal case sheds more...more

The FLSA And Arbitration

I read an interesting post by Daniel Schwartz in the Connecticut Employment Law Blog. It concerned a recent Second Circuit decision that bodes well for employers in the never-ending fight against wage-hour class actions. The...more

Use of Fluctuating Work Week Method To Pay Overtime Must Have A Fixed Salary As The Foundation

A class of equipment operators and trainees has asked a federal court to approve a $1.35 million settlement of their FLSA class action lawsuit alleging the Company did not fairly pay them their wages and used a gimmick to...more

Case Interpreting FLSA Highly Compensated Exemption Takes Interesting Slant

There has not been much litigation over the HCE, the so-called Highly Compensated Employee exemption under the FLSA. Recently, an interesting case explored the issue of whether commission payments can form the entirety of the...more

A Lesson For Employers – Take The Easy Way Out: No Jurisdiction In FLSA Lawsuit

I always look for the easiest way out of a FLSA lawsuit. I use the word “easiest” in the most generic sense, as no magic bullet defense is truly easy. However, there are times when you catch lightning in a bottle, i.e. the...more

Save Local Business Act Passes House: Legislative Narrowing Of A Judicial Doctrine

I recently blogged about this possibility and now it has come to fruition. The House of Representatives has passed a proposal to walk back the Obama USDOL initiative to expand the doctrine of joint employer status/liability...more

11/17/2017  /  DOL , FLSA , Joint Employers , NLRA , NLRB , Wage and Hour

The Beat Goes On For The New USDOL Overtime Rule

I remember with fondness the Sonny & Cher song, “The Beat Goes On.” That song could be easily applied to the saga of the USDOL overtime rule, which continues. Although the proposed rule has been shot down by the Fifth...more

Third Circuit Rest Break Case Has Different Slant

It is well-established that short rest breaks, so-called coffee breaks, are compensable under the Fair Labor Standards Act. In a variation on this age-old theme, in a unique set of circumstances, the Third Circuit has...more

Third Circuit Ruling Gives Employers Some Relief On “Willfulness” Claims In FLSA Collective Actions

In every FLSA class action I have defended (as well as every demand letter I have seen on this subject) the plaintiff’s lawyer always alleges that the violations were “willful.” It does not matter what the facts are. No, they...more

Independent Contractor Status And The ABC Test

I have handled almost 100 unemployment insurance audits by the New Jersey DOL, where the underlying gravamen is that certain individuals are or are not independent contractors. The Auditors enforce the law very strictly and...more

More Law Firms Hit With FLSA Misclassification Claims: A Cautionary Tale

I have written a number of times about law firms that have been sued in FLSA actions. Another example. Employees have sued two Florida personal injury law firms, alleging that they were misclassified and not properly paid...more

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