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
Overtime Issues
New FLSA Exemption Salary Level Set at $35,000
By Mark Tabakman on
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
By Mark Tabakman on
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…
Attempt at “Blended” Overtime Defense Fails in FLSA Case in Fourth Circuit
By Mark Tabakman on
Posted in Overtime Issues, State Wage & Hour Laws
An interesting decision just issued involving an employer who attempted to use a blended compensation system to pay employees overtime. A federal appellate court ruled, however, that this system did not comply with the Fair Labor Standards Act and allowed a million dollar judgment obtained by the USDOL to stand. The case is entitled U.S. …
Settling With (Only) the Named Plaintiff in Collective Actions: The Way To Go!
By Mark Tabakman on
Posted in Class Actions, Overtime Issues
I often preach that, when dealing with a class action, the employer should try to pick off the named plaintiff, perhaps overpaying to do so (or maybe not). In this interesting case, the parties settled (i.e. with the named plaintiff) right after the class had been decertified. The plaintiff had argued that he was misclassified…
LMRA Preemption Defense Works Yet Again: Defense Counsel Should Always Look for It!
By Mark Tabakman on
Posted in Overtime Issues
Employers should always look for a preemption defense when a FLSA suit is lodged against a unionized client. Clear proof of that was just given by the Ninth Circuit when that Court held that unionized offshore oil rig workers could not pursue overtime claims because the Labor Management Relations Act (LMRA) barred the suit. …
Off-The-Clock Collective Action Case Settles: The Continuing Danger for Employers
By Mark Tabakman on
Posted in Overtime Issues, Working Time
I have defended many off-the-clock working time cases and I submit that they are very dangerous for employers. This is because they are particularly amenable to class certification because it is likely that there is a common policy applicable to the members of the class. This premise is highlighted by a recent settlement for a…
One Toke Over the Line: Employer of Marijuana Workers Seeking FLSA Overtime Defends By Asserting Its Business Is Illegal
By Mark Tabakman on
It is not often when an employer defends a FLSA lawsuit by asserting that it is in an illegal business and therefore immune to suit. Sound funny? Well, that is precisely what a Colorado employer that furnishes security services to legal cannabis growers/sellers has pressed on the Tenth Circuit. The employer’s theory is that the…
Judge Allows Named Plaintiff Expansive Ability To Communicate with Potential Opt-Ins in FLSA Collective Action
By Mark Tabakman on
When a class action is filed, often times there are issues (for the plaintiff and their counsel) as to who should be in the class. Often, the named plaintiff will seek to reach out to other putative class members, but it is not every day when a Judge orders that the plaintiff may telephone or…
Decertification of a Class and Rejection of Another Class in the Same Case: The Daily Double!
By Mark Tabakman on
This is an interesting case because it combines the elements of necessary, but not proven, commonality of situation for class certification and a quirky element of overtime calculation based on a unique FLSA provision. The bottom line is that the two workers who sought a class action on both the federal and state levels lost…