I have defended many cases in which the employee(s) claim they worked through lunch and are owed wages (or, usually, overtime). These cases are usually difficult to defend unless the employer either compels employees to punch out and in for lunch or has another kind of fail-safe mechanism to account for this time, if legitimately
Overtime Issues
FLSA Suit By Domestic Employee-Are The Work Hours Claimed Accurate?
By Mark Tabakman on
Over these last years, there have been a number of lawsuits by domestic employees against their employers and I have defended some of those. They present a unique kind of case as these domestic servants are usually on very close terms with their employers, not the typical employer-employee relationship, but then, something happens and it…
Great Fifth Circuit Decision On Exclusion Of Bonus From Regular Rate Under FLSA
By Mark Tabakman on
I have often blogged about the thorny issue of bonuses under the FLSA and when those bonuses must be included in the regular rate of employees for overtime purposes. The crucial test is whether the bonus is discretionary, meaning it need not be included, or is “promised” to employees, meaning it does have to be…
Pre-Payment Plans: A Novel Way to Deal With Overtime Issues
By Mark Tabakman on
The FLSA contains a number of provisions that enable employers to manage, if not reduce, overtime costs. One of these is called a pre-payment plan. Under a Pre-Payment Plan, an employer pays anticipated overtime in advance in order to maintain the employee’s wage or salary level constant from pay period to pay period. Excess payments…
FLSA Settlement Principles Illustrated by Recent Case: A Primer on What Is Appropriate
By Mark Tabakman on
When FLSA lawsuits are settled, the matter must go before a federal judge for approval, as opposed to when a “demand letter” is sent and the parties settle prior to suit. There are many elements that a court must look at to determine if the settlement is appropriate and the recent case of Fritz v…
Defeat of Restaurant FLSA Actions for Lack of Credible Evidence Is Encouraging!
By Mark Tabakman on
Many wage-hour/overtime actions are brought against restaurants; this is, and has been for some time, a disturbing pattern. Coupled with this trend is the fact that it seems that this industry has certain “customs” on paying workers that give plaintiffs a seeming leg up in these actions. So, it warms my heart when these suits…
Another Construction Industry Wage-Hour Lawsuit: The Trend Continues
By Mark Tabakman on
The construction industry has had a long history of wage violations, whether of prevailing wage laws or just “ordinary” wage hour laws. Another example of this trend has emerged in New Jersey where an entity (and its subcontractors) have been sued in federal court in a collective action for alleged failure to pay overtime. The…
FLSA Telecommuting Issues Can Lead to Abuse: Employers Beware!
By Mark Tabakman on
I am getting deluged with inquiries from clients, some very agitated, about what they should do, or can do, vis-à-vis their non-exempt work forces and how these folks can be properly paid, but at the same time remain compliant with the Fair Labor Standards Act. As a basic premise, employees must receive at least the…
Staffing Company Cannot Avoid FLSA Liability For Doctored Time Records by Blaming Its Agent
By Mark Tabakman on
What gets a lot of employers into trouble is the failure to keep accurate records. Or worse, the actual falsification of records or knowingly keeping and maintaining inaccurate records. Nothing will cause the DOL to come down harder on an employer and for the courts to back up the agency. A recent example of this…
Labor Contract Preemption Defense Cannot Kill Wage Suit Because No Interpretation of Contract Required
By Mark Tabakman on
I have often blogged about the need for defense lawyers to look for a labor law preemption defense when a wage hour action, single or FLSA collective action is lodged. If the preemption argument succeeds, it is a magic bullet that makes the case totally go away. There has to be, however, some direct connection…