When the Department of Labor, whether USDOL or a state agency, issues an Opinion Letter on a certain topic/issue or follows a consistent course of conduct vis-à-vis a particular employer, that employer is allowed to rely on that letter or administrative practice or enforcement policy. The Opinion Letter or consistent practice then acts as a
Employers Must Be Aware of “Sneaky” Working Time FLSA Collective Action Cases
I continue to blog about working time cases because these are the kind of lawsuits that can sneak up on an employer who does not realize that a certain pre-shift activity may in fact constitute working time under the Fair Labor Standards Act. This is again illustrated by a trucking company case where the Company
Court Refuses To Award Liquidated Damages in FLSA Collective Action Even After Finding Employer Did Not Pay Proper Overtime
What scares me the most about a USDOL audit or a FLSA lawsuit is the threat of liquidated damages. These damages, which double the wages due, are imposed almost routinely in court cases and are being imposed more and more by the administrative agency. Well, sometimes the pendulum swings the other way, as illustrated by
Another Successful Labor Contract Preemption Defense Prevails in FLSA Collective Action: Defense Practitioners Must Always Look for It!
What do I always say? If an employer is sued in a FLSA action, collective or otherwise, and is unionized, always look for a National Labor Relations Act/Labor Management Relations Act preemption defense. Well, it has happened again! A federal judge has dismissed a collective action alleging that a rehabilitation center did not pay nurses
NJ Equal Pay Act Not Retroactive: Outstanding!
There has been a good deal of controversy and confusion over whether the recently enacted New Jersey Equal Pay Act was retroactive. The law became effective July 1, 2018 and has a six year statute of limitations. Could a lawsuit filed after enactment, say in August 2018, go back to August 2012? We did not
FLSA Collective Action Travel Time Case Illustrates Nuances Of “Working Time” Conundrum
Working time claims/lawsuits take many forms and often arise out of seemingly unlikely circumstances. In a recent case, the Third Circuit ruled that temporary workers brought in to take over the jobs of locked out workers cannot receive pay under the FLSA for their time spent travelling to and crossing the picket line. The case
Collective Action On Automatic Lunch Deductions Settles: We’ve Seen This Before (Many Times)
Many employers these days have timekeeping systems that deduct time (e.g. thirty minutes) for lunch on a daily basis. There is an inherent danger in doing this, as employees may claim that they worked through lunch and therefore should be paid. This is evidenced in yet another settlement in such an action, a settlement that
Prevailing Wage Law Case Shows Intricacies Of Such Laws: The Apprentice Issue
The world of prevailing wage law is a complex and nuanced one. It is, in truth, a niche within a niche of the wage-hour world. I have handled almost one hundred prevailing wage audits and lawsuits and still am learning things about how these laws are interpreted. In an interesting twist, the New York State
Will New USDOL Compliance Office Help or Hurt Employers?—Time Will Tell
There is an old saying, “I’m from the government and I’m here to help you.” Everybody thinks that is funny as, often, the opposite is true, especially for the employer community. Well, the USDOL is putting a new spin on this maxim by creating an office to (supposedly) help employers in complying with the Fair
Happy Birthday FLSA: Eighty And (Maybe Not) Still Going Strong!
The Fair Labor Standards Act is eighty years old this month and commentators strongly suggest that the law needs updating in many areas.
My colleague Tammy McCutchen stated that a complaint-driven mechanism defense should be engrafted into the FLSA. She stated that “I think employers should get the opportunity to avoid [some liability] by having