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
Fair Labor Standards Act (FLSA)
More USDOL Guidance On Virus Working Time Issues: Tracking Off-the-Clock Time
By Mark Tabakman on
Posted in Working Time
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…
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…
USDOL Revises FLSA Section 7(i) Retail Commission Exemption: Long Overdue And Very Welcome!
By Mark Tabakman on
Posted in Exemptions
I have handled a number of cases involving Section 7(i) of the Fair Labor Standards Act (“FLSA”) which provides an exemption from overtime for commissioned employees working for a so-called retail/service establishment. One of the major hurdles for an employer in claiming the exemption is the necessity to prove that the employer is in a…
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…
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…
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…
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…
Organ Procurement Coordinator Found Exempt Under FLSA Highly Compensated Exemption: A Case Study in the HCE
By Mark Tabakman on
I have found a very interesting exemption case involving a rather unique job title that also is very instructive in the interpretation of the Highly Compensated Exemption (“HCE”) under the Part 541 FLSA exemption tests. The case involved an employee whose title was Organ Procurement Coordinator, who was seeking back due overtime, claiming he was…