There are certain industries or fields where misclassification issues are prevalent because the nature of the duties of the workers “seems” to smack of exempt work but then there is a doubt as to whether they truly meet all of the elements of the exemption(s). A recent example of this tension is the FLSA collective
Doctrine of Practical Continuity Tested Again In Case Involving FLSA Motor Carrier Exemption
I have always been interested in the Motor Carrier Act (MCA) exemption of the Fair Labor Standards Act, 29 USC 213(b)(1), especially in the doctrine of “practical continuity” which is one of the ways that interstate commerce is determined and have defended a number of cases where we had to rely on practical continuity for
Second Circuit Takes Hard Line On FLSA Willfulness Standard: Defense Practitioners Given A New Weapon!
Every time a plaintiff files a FLSA lawsuit, they seek a third year, one longer than the usual two year statute of limitations, claiming that the violations were “willful.” It has become a matter of course and defendant attorneys must begin any settlement negotiations knowing that the amount claimed has been artificially inflated with a
Health Care Industry FLSA Collective Action Focuses On Exempt Status Of Care Coordinators
Another exemption lawsuit has been filed. What else is new? This time, a group of nurses and care coordinators determine who analyze requests for coverage from health care providers have claimed they are entitled to overtime because they are non-exempt. They have filed a collective action under the Fair Labor Standards Act. The case is
USDOL Opening Door (A Little) On Section 7(i) Commission/Retail Exemption After Rescission Of Outdated Lists
There has been a lot of action lately from the USDOL on the issue of the Section 7(i) exemption from overtime (29 USC 207(i), the so-called commission exemption. One of the basic requirements for an employer trying to claim this exemption is that it must be in a “retail business.” Until May 2020, this was
Named Plaintiff in OT Class Action Dooms The Case By Her “Re-Inventing” Her Deposition Testimony: A Cautionary Tale!
In class actions there is always a named plaintiff (or two or three, etc). That person acts as the class representative and is the “flagship” for the entire case. When that individual does something to jeopardize their status as such a “representative,” the entire case might go away. That is precisely what happened in a
Disclosure of Attorney Client Communications and the “Good Faith” Defense: You Can’t Have Your Cake and Eat It!
Often, attorneys advise clients on FLSA issues, such as exemption issues. Then, a lawsuit ensues and the employer may want to use the defense that it relied in good faith on its attorney’s advice. The potential problem that creates is that the plaintiffs may then seek production of the otherwise confidential communications on this issue
USDOL Revises FLSA Section 7(i) Retail Commission Exemption: Long Overdue And Very Welcome!
I have handled a number of cases involving Section 7(i) of the Fair Labor Standards Act (“FLSA”) which provides an exemption from overtime for commissioned employees working for a so-called retail/service establishment. One of the major hurdles for an employer in claiming the exemption is the necessity to prove that the employer is in a
In Major Move, USDOL Makes It Easier for Employers to Claim the Commission Exemption of 29 USC 207(i)—Outstanding!
I have handled many cases involving the so-called commission exemption under the Fair Labor Standards Act, Section 207(i), and I can safely say that often a big stumbling block for the defendant (i.e. employer) is to show that it is in a “retail” industry. Absent that showing, the exemption will not apply, even if the
Flimsy Affidavit From Named Plaintiff Insufficient to Secure Conditional Certification in FLSA Collective Action: A Case for Sanity!
It seems that plaintiffs (and their lawyers) think that all they have to do to get conditional certification is throw up a flimsy Affidavit from the named plaintiff and the Court will hand them conditional certification, like it is giving out candy. Fortunately, in the District of New Jersey that is not the case, as