One tactic to defeat a class action is to assert that the named plaintiff is not an appropriate or proper representative for the class. These initiatives are not often successful, but defense counsel should always be looking for them. A defendant employer is doing just that by asserting that a lead plaintiff does not share
On Davis-Bacon/Prevailing Wage Projects, Be Aware of “Split Classification” Issues and Problems
On prevailing wage projects, employees are paid for the different trade work they do by the rate for that trade. Sometimes, employees work in more than one classification (e.g. Carpenter and Laborer). These lines of demarcations are tricky sometimes, especially in situations where work in one trade might follow closely on the work of another.
Biden DOL Withdrawal Of Trump DOL Opinion Letters Signals Major Pendulum Swing Towards Employees
I have often said that the USDOL is a politically charged industry and its view on legal issues (much like the National Labor Relations Board) shifts with the Administration that is in power. For example, under the prior administration, the agency took a pro-business stance and issued pro-business Opinion Letters on independent contractor and working
Be Careful When Submitting FLSA Settlement Documents To The Court: Confidentiality and General Release Clauses Are Taboo!
I have settled numerous FLSA cases and note that there are many elements that management-side lawyers always want to see in such a document. One is a confidentiality provision as we do not want the employee “shooting his mouth off” over what he received in settlement. We also want as broad a Release as possible
Choice of Marty Walsh As Secretary of Labor Signals Huge Pendulum Swing
I have been praising the Opinion Letters which have, of late, been issuing from the US Department of Labor because, candidly, they are displaying a business friendly attitude, or should I say, a pragmatic approach to the thorny issues employers face in the maze of USDOL regulations. Well, this may all change as President Biden
FLSA Joint Employer Doctrine At Issue In Health Care Industry Overtime Class Action: A Warning To That Industry!
In FLSA cases, plaintiff lawyers are always looking for a deep pocket and one of the avenues they use towards this “goal” is the joint employer doctrine. That doctrine allows more than one employer to be liable for employee damages (e.g. overtime, back wages) if the employers are found to co-determine employee terms and conditions
USDOL Seeks To Kick Out Private Lawsuit Asserting It Can Do Better For Employees: Can It?
Are two lawsuits better than one? Not for the employer, I can tell you that. A very interesting case is working its way through the federal courts now, where the US Department of Labor wants to take over a private lawsuit that has been filed alleging Fair Labor Standards Act violations. The government is contending
Federal Court Holds That New Jersey Wage Hour Law Is More Favorable to Employees on Security Check Compensability Than the FLSA
There have been many cases brought recently focusing on the compensability of security checks and in these days of temperature checking for COVID, we expect to see many more. Some of these cases have gone for the employer and others for the employees. In a recent case seeking compensation under the New Jersey Wage and
USDOL Issues Interesting Opinion Letter on Car Manufacturer Incentive Payments Use in Meeting Minimum Wage Requirements
The USDOL has been issuing a slew of Opinion Letters of late, under the stewardship of Cheryl M. Stanton, Administrator of the Wage and Hour Division. Many of these deal with bonus issues and how these payments can and should be used by employers vis-à-vis their obligations to be compliant with the FLSA. The agency
USDOL States It Will No Longer Routinely Seek Liquidated Damages in Administrative Investigations: A Return to Normalcy
The last several years have been quite worrisome to me, as a management side practitioner, on the issue of USDOL agency-initiated liquidated damages assessments. It used to be that only when the USDOL took an entity to court did it seek liquidated damages. Then, some years ago, during the Obama Administration, the agency began seeking