I have written several times about employees working from home, e.g. telecommuting, and how employers must carefully keep track of their hours to avoid unauthorized overtime. There are situations, however, that arise regarding unanticipated work and how employers should track and pay for this. The USDOL has now assisted in this endeavor, as it issued
Working Time
The FLSA and Temperature Checks: The Doctrine of “Integral and Indispensable” Comes to the Forefront
By Mark Tabakman on
The other day I went to the eye doctor and, before I could go in, an employee checked my temperature. This phenomenon is going to become perhaps a constant fact of life when businesses open, employees return to work and employers want to be sure that they are virus-free and the workplace is safe. That…
Wave of Wage-Hour Lawsuits Coming? Beware of the Danger Zones
By Mark Tabakman on
I have been writing about wage hour issues that are implicated or raised by the continuing COVID-19 situation. Well, here’s another one. I warn that as businesses start to open up (or not), employees (and, more to the point, plaintiff-side lawyers) will be seeking to sue employers on a number of grounds, some of which…
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…
Cutting Exempt Employee Salaries for Slowdowns Resulting From Virus Is Legal—But Be Very Careful!
By Fox Rothschild LLP on
The Corona Virus scare is causing employers to lay people off and reduce their hours. For non-exempt, hourly people this is fairly easy, from a legal perspective, because if non-exempt people do not work, they do not get paid. The case is tougher for exempt workers. The FLSA requires employers to pay exempt employees at…
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…
USDOL Opinion Letter on Bonuses Shows the New Vitality of This Important Instructional Tool
By Mark Tabakman on
The USDOL is busy again issuing Opinion Letters and has again turned its focus to the issue of inclusion/exclusion of bonuses into the regular rate for purposes of overtime computation. These Letters are not binding on courts but they operate to evidence the agency’s position on whatever issue is being addressed so they are extremely…
Fluctuating Work Week Calculation of Back Due Overtime Not Allowed by Pennsylvania Supreme Court
By Mark Tabakman on
I have long been a fan of the fluctuating work week (FWW) method of paying overtime to non-exempt salaried employees. This computation yields a half-time calculation, i.e. a lower calculation than dividing the salary by forty and then calculating time and one half of that number. The Pennsylvania Supreme Court has recently held that this…
Changing Employees From Exempt to Non-Exempt “With the Season” Is Legal!
By Mark Tabakman on
Many industries and businesses are seasonal and I have been often approached with a client question to the effect of whether the client can change the exempt status of workers, depending on the season. This occurs, for example, in the case of an employee who is the Head Coach of an athletic team for a…