Mark Tabakman

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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…

When will employers learn?  They keep classifying retail Store Managers and Assistant Managers as exempt, when these workers are often misclassified, not intentionally, but because the nature of their duties often tends to undermine the primary duty test and render them non-exempt.  Another example is a recent case where Store Managers have been granted conditional…

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…

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…

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…

Many employers these days have timekeeping systems that deduct time (e.g. thirty minutes) for lunch on a daily basis.  There is an inherent danger in doing this, as employees may claim that they worked through lunch and therefore should be paid.  This is evidenced in yet another settlement in such an action, a settlement that…

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…