The New Jersey DOL is very aggressive on the issue of independent contractor status, i.e. the issue of misclassification. The latest, perhaps best (or worst) illustration of this view is the agency’s determination that court reporters are employees for purposes of the Unemployment Law. This errant decision, which cuts against traditional modes of thinking on
Referees Settle Independent Contractor FLSA Action: No “Penalty” for Either Side
The issue of whether athletic referees are independent contractors has surfaced a few times in the last few years. Here, in Pennsylvania, the Pennsylvania Interscholastic Athletic Association (the PIAA) that engages these referees has agreed to settle with a group of these individuals for $260,000 to close out a FLSA action, based on misclassification. The
Yet Another Store Manager FLSA Lawsuit: The Hits Just Keep On Coming
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
Another Retail Industry FLSA Collective Action On Misclassification Settles: What Employers Should Do To Be Proactive
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
Converting Exempts To Non-Exempts Leave A Window Of Opportunity
When an employer realizes that a certain classification or number of employees has been misclassified as exempt, the employer may do the right thing and, henceforth, treat those people as non-exempt and pay overtime accordingly. That corrective measure, however, leaves a gap because the workers can sue for overtime for the period preceding the change.
Interagency Coordination Between NJDOL And USDOL: Like Petula Clark Sang, Is This A “Sign Of The Times?”
The issue of who is and who is not an independent contractor has exploded on the legal scene in recent years. Many agencies are honing in on this topic and I have, over the last five years, probably defended more than fifty audits, inspections and lawsuits involving this issue. Well, the landscape just got murkier,
Yet Another Assistant Manager Collective Action: Will They Never End?
I have often written about the scourge of Assistant Manager class actions. The employee category is particularly subject to this kind of lawsuit as these workers often perform some non-exempt work and it is unclear many times if they possess and exercise sufficient and proper supervisory authority. A recent case in New Jersey provides
NJ Governor Issues Executive Order On Independent Contractors—The More Things Change, The More They Stay The Same
I have done a lot of independent contractor work in New Jersey, defended many such cases, from (numerous) unemployment audits to FLSA class actions. The New Jersey test, the A-B-C test, is well-established and one of the hardest for the putative employer to prevail upon. The test was, just a few years ago, reinforced by
Eleventh Circuit Decision On Opt-In Consent Changes FLSA Collective Action Landscape
Employers are always trying to cut off the head of a class action, i.e. the named plaintiff, in order to bring the case to an end. What happens when the named plaintiff is gone from the case but some people have opted in? Do they become named plaintiffs, with the case continuing? The Eleventh Circuit
Computer Exemption Case Settles: Discretion Is The Better Part of Valor
Exemption class actions, i.e. lawsuits alleging misclassification, continue to pop up in different contexts and concerning different classifications. A bank has just agreed to settle a case by paying more than $2 million to put a close to a Fair Labor Standards Act (FLSA) collective action based on a theory that the bank misclassified certain