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
Working Time
Employers Must Be Aware of “Sneaky” Working Time FLSA Collective Action Cases
By Mark Tabakman on
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…
The Unemployment “ABC” Test for Independent Contractor Status: A Mount Everest for Unwary Employers
By Mark Tabakman on
Posted in Independent Contractor, Working Time
There is a tripartite test for independent contractor under the New Jersey Unemployment Compensation statute (and many other States), the so-called “ABC” test. Under this test, services performed by an individual for remuneration shall be deemed to be employment unless it is shown to the satisfaction of the Department of Labor that: (a) Such individual…
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…
CBS Parking Spot Case Settles: Another Example Of A FLSA Working Time Issue Gone Viral
By Mark Tabakman on
Posted in Class Actions, Working Time
I had blogged about this case when it first came out. It struck me as very interesting because not only is the subject matter unique, it also raises the whole thorny issue of what is (or is not) working time. This latest case involves Parking Production Assistants (PPAs). These people worked for CBS and their…
First New USDOL FLSA Opinion Letters Are Issued – A Very Good Thing
By Mark Tabakman on
At long last, new USDOL Opinion Letters are bursting forward. Like Spring. The agency just issued three new letters on a variety of topics, including one of my favorites, travel time. The other letters address issues of compensable break time as well as the kinds of lump-sum payments that could be garnished for child support.…
When Does Travel Become Compensable Work Hours?
By Mark Tabakman on
I blog a lot about working time cases because these are the issues can sneak up on an employer, even the most well intentioned and good faith employer. Travel time is one of these murky, arcane kind of activities that go unnoticed by companies until, often, a lawsuit is filed. Another example emerges. A group…
Donning and Duffing Cases Keep Happening: The Danger of Off-The-Clock Activities
By Mark Tabakman on
Posted in Working Time
Working time cases come in all sizes and shapes. Many of these off-the-clock cases are so-called donning-and-duffing cases involving clothes changing for work and whether it is compensable. The U.S. Department of Labor has weighed in again on this issue. It has filed a lawsuit against a battery company for its alleged failure to pay…
A Waiting Time/Bag Inspection Case Where The De Minimis Defense Actually Worked!
By Mark Tabakman on
Posted in Class Actions, Working Time
I have blogged several times recently on the rash of “check bag” cases that have percolated through the courts. Another example. A class of workers employed by Converse Inc. have now asked the Ninth Circuit to revive a class action resting on the theory that the time waiting to go through mandatory security inspections was…
Eddie Bauer Security Check Waiting Time Case Gets Certification: What Is “Working Time”?
By Mark Tabakman on
Posted in Class Actions, Working Time
What is working time? There are many variations on this theme, some far grayer than others. When does waiting time become working time? Is the employee engaged to be waiting or waiting to be engaged? If the former, then it is working time. A class action involving more than 1,100 workers is now testing these…