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
The USDOL And The Joint Employer Doctrine: The Saga Continues
The USDOL has proposed a new cut-down (watered down?) test for determining when entities are a joint employer. Such a finding leads to the aggregating of employee hours which are worked at both places as well as rendering the entities jointly liable for wage-hour (e.g. overtime) violations.
The focus of the new proposal is a
New DOL Proposed Rule Will Affect What Is included (or Not) in Regular Rate for Overtime Calculation
Even the most well-intentioned employer who wants to comply with the FLSA will have trouble, as there are many gray, nuanced provisions and regulations in this law, especially on overtime computation. One of these is the requirement to include non-discretionary bonuses in the overtime calculation of non-exempt workers. That may now be changing as the
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
Issues With the New FLSA OT Rule/Exemption Rules
Now that the new $35,000 per annum overtime rule has been proposed, the commentators have been commenting on the implications. I have read these with great interest. For example, Alexander Passantino, former DOL Wage Hour Division chief, stated that “it just struck me as funny that it’s within $5 per week of the exact midpoint
New FLSA Exemption Salary Level Set at $35,000
We have been waiting for the United States Department of Labor to announce its plan for toning down the overtime rule revisions implemented in the last administration, but stayed by federal courts, and to announce its own proposal. Now, that momentous event has happened—the agency announced yesterday it will set the salary threshold at $35,308
Employee Status Will Not Be Determined by Judge in Conditional Certification Stage in FLSA Collective Action
There is no industry that is immune to wage hour or FLSA actions, including amateur sports leagues. In an interesting case, a federal Judge has granted conditional class certification to a class of members of an amateur football league who worked as referees and who were, they claim, compelled to perform the work of refereeing
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
Another Retail Industry FLSA Collective Action On Misclassification Settles: What Employers Should Do To Be Proactive
The retail industry is notoriously prone to FLSA collective action misclassification lawsuits because there are many levels of management, especially so-called lower management, where the employees may/may not discharge actual/true supervisory powers. Another illustration of this principle has resulted in a large dollar settlement that will pay employees known as “sales team managers” a fairly
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