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
Harvard University Gets Lesson in “Higher Education” in Independent Contractor Case
Classification issues are annoying ones, to state the obvious. Especially decisions and issues as to who is and who is not an independent contractor. And, it does not matter whether the defending entity is a mom-and-pop candy store or one of our most elite educational institutions, such as Harvard University. That august institution has just
New Intern Test Announced By USDOL: Definitive Guidance?
I have blogged many times about the rash of intern cases that have popped up over the last few years. Now maybe there will be a consistent, uniform test for determining whether interns are really statutory “employees.” The US Department of Labor has endorsed such a test. The agency is approving the so-called “primary beneficiary”