The issue of misclassification of workers as exempt when they might not be has been around for a very long time. Another class of such workers has been certified in the health care industry. The federal Judge has granted final certification to two classes of workers claiming they are entitled to overtime. The classes will
Warning—Calling Someone A Manager Or Sous Chef Does Not Automatically Make Them Exempt From Overtime Under The FLSA
The New York City restaurant industry has, over the last several years, been hit with a flood of lawsuits. Many of these have focused on illegal tip pools but many have also alleged that employees were misclassified as exempt. These cases often generate large liabilities for employers and must be avoided. A recent example of
FLSA Misclassification Case Highlights The Vagaries Of The Administrative And Professional Exemptions
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