As a general rule, employee expense reimbursements are not includible in the regular rate for purposes of overtime computation. When the reimbursements, however, are unreasonable or out of whack (i.e. too high) as regards the particular expense, then the USDOL takes the position that the reimbursements are really a backdoor way of paying the employee
Fair Labor Standards Act (FLSA)
Fifth Circuit Issues New Test For Determining Conditional Certification in FLSA Collective Actions: I Am Giddy!

I have often lamented how easy it seems for plaintiffs to secure conditional certification in a FLSA collective action. A few Affidavits, often identical in content, are produced and then, voila, the plaintiff gets conditional certification which then inordinately complicates matters for the employer and makes litigating the case and, of equal import, settling…
Named Plaintiff in OT Class Action Dooms The Case By Her “Re-Inventing” Her Deposition Testimony: A Cautionary Tale!

In class actions there is always a named plaintiff (or two or three, etc). That person acts as the class representative and is the “flagship” for the entire case. When that individual does something to jeopardize their status as such a “representative,” the entire case might go away. That is precisely what happened in a…
The Impact Of Working Remotely And FLSA Compensable Travel Time: Another USDOL Opinion Letter Nugget

Lately, there has been a lot of “action” from the USDOL on the thorny and misunderstood issue of travel time. The agency has just issued another Opinion Letter that addresses the issue of whether employers must pay workers for travel time on days when they spend part of the day working from home and the…
Bah, Humbug! Hospital Hit With Another Of The FLSA Collective Actions On Missed Lunches
The health care industry seems to be ground zero for a particular kind of class action lawsuit. Many of these health care institutions have policies where a thirty-minute lunch period is automatically deducted from the daily scroll of hours. This is quite understandable, from an operational perspective, as it usually is difficult for employees to…
FLSA Joint Employer Doctrine At Issue In Health Care Industry Overtime Class Action: A Warning To That Industry!
In FLSA cases, plaintiff lawyers are always looking for a deep pocket and one of the avenues they use towards this “goal” is the joint employer doctrine. That doctrine allows more than one employer to be liable for employee damages (e.g. overtime, back wages) if the employers are found to co-determine employee terms and conditions…
USDOL Seeks To Kick Out Private Lawsuit Asserting It Can Do Better For Employees: Can It?
Are two lawsuits better than one? Not for the employer, I can tell you that. A very interesting case is working its way through the federal courts now, where the US Department of Labor wants to take over a private lawsuit that has been filed alleging Fair Labor Standards Act violations. The government is contending…
Commuting In Company Truck Does Not Make The Travel Time Compensable Under FLSA: Too Bad!
I just posted on a travel time case the other day but I have a special fondness for these kinds of cases and enjoy watching the numerous, creative ways that plaintiffs try to convert ordinary travel into working hours, i.e. compensable. In a recent case, a class of employees whose job function was directing traffic…
Travel Time Class Action Tries To Convert Home-To-Work Travel To Compensable Time
I have handled many travel time cases and can report, regretfully, that plaintiff-side lawyers are always seeking new and creative ways to make certain kinds of travel time compensable. A new case has been filed on this issue where oil and gas workers claim they are owed overtime for travel between company housing to their…
FLSA Working Through-Lunch Case Gets Dismissed: Another Automatic Lunch Deduction Case Goes Nowhere!
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…