Wage and Hour Defense Blog

On March 22, 2016, the United States Supreme Court issued its much anticipated decision in Tyson Foods, Inc. v. Bouaphakeo, a donning and doffing case in which a class of employees had been awarded $2.9 million following a 2011 jury trial that relied on statistical evidence. (A subsequent liquidated damages award brought the total to $5.8 million.)

In a 6-2 opinion, the Supreme Court affirmed that award.  While the Supreme Court’s decision may not have been the outcome many were expecting, the Court did not issue a broad ruling regarding the use of statistical evidence in class ...

It is often said that no employer is immune from a wage-hour lawsuit. That no matter how diligent an employer is about complying with wage-hour laws, there is nothing to prevent an employee from alleging that it did not comply in full with the law, leaving it to the attorneys and the court to sort things out. Perhaps the best evidence that no employer is immune from a wage-hour lawsuit came on Thursday, March 17, 2016. That is the date that history will always reflect that a wage-hour lawsuit was filed against Betty White.

Yes, that Betty White. Ninety-four year old Betty White. Sue Ann ...

The Department of Labor’s Wage and Hour Division, which is charged with enforcing federal wage laws, has just issued its latest newsletter.

Included in the newsletter is the Division’s presentation of a variety of statistics relating to its efforts.

Among the statistics reported by the Division:

• It has assisted more than 1.7 million workers since 2009.
• It has recovered approximately $1.6 billion for workers since 2009.
• It recovered more than $246 million in back ...

More than a few media sources have reported on the March 10, 2016 wage-hour “victory” by a class of Taco Bell employees on meal period claims in a jury trial in the Eastern District of California.  A closer review of the case and the jury verdict suggests that those employees may not be celebrating after all -- and that Taco Bell may well be the victor in the case.

The trial involved claims that Taco Bell had not complied with California’s meal and rest period laws. The employees sought meal and rest period premiums and associated penalties for a class of employees that reportedly ...

On March 1, 2016, Oregon Governor Kate Brown signed a law raising the state’s minimum wage. The law is an unusual one, and it will create challenges for many employers with employees in the state, particularly those with operations or employees in multiple counties.

The first increase to the state’s minimum wage will take effect on July 1, 2016, with a new increase scheduled to take effect each July thereafter. The law provides a schedule of annual increases through 2022. Beginning in 2023, the minimum wage will be adjusted annually to account for inflation.

Starting July 1, 2016 ...

As part of the Wage Hour Division’s continuing focus on defining the employment relationships covered by the FLSA, the Division’s Administrator has issued an Administrators’ Interpretation (as well as a Fact Sheet) addressing joint employment relationships.  At the very least, the Interpretation suggests that the Division will be seeking to use the “joint employer” doctrine to pursue multiple entities – and “deeper pockets” – to address wage issues.

“Larger and More Established” Employers

The Administrator’s Interpretation notes that joint ...

In a split decision, the Ninth Circuit Court of Appeals has declined to adopt a bright-line rule to assess whether a managerial employee has filed a complaint for the purposes of § 215(a)(3) of the Fair Labor Standards Act (“FLSA”), the statute’s anti-retaliation provision.  The decision, Rosenfield v. GlobalTranz Enterprises, appears to highlight a disagreement among the Circuits.

At least four Circuit Courts – the First, Fifth, Sixth and Tenth – have adopted a manager-specific legal standard:  in order to engage in protected activity under § 215(a)(3), the employee ...

As we look towards the New Year, employers with locations in various jurisdictions should be mindful of state and local minimum wage increases that will soon take effect.

Some of these increases are a result of laws that tie wages to an economic index (generally the Consumer Price Index). Others are the result of recent legislation.

Below are two charts addressing these changes. The first summarizes the relevant changes for states; the second, for cities and other localities.

Please note that Arizona, Florida, Missouri, Montana, New Jersey, Ohio, Oregon, and Washington all have CPI ...

As we mentioned earlier this week, I was recently interviewed on our firm’s new video program, Employment Law This Week.  The show has now released “bonus footage” from that episode – see below.

I elaborate on some of the reasons behind this year's sharp increase in federal wage-and-hour suits: worker-friendly rules, increased publicity around minimum wage and overtime issues, and the difficulties of applying an outdated law to today's “gig” economy.

[embed]https://youtu.be/Vd3K-9Dfvk4?list=PLi4sj4jEe5heNkhVnjMTh94ipZhPPpMVh[/embed]

The Third Circuit Court of Appeals recently joined the chorus of Circuits adopting the pro-employer “predominant benefit test” when weighing the compensability of meal periods under the Fair Labor Standards Act (“FLSA”).  As a result, the Ninth Circuit is the lone Circuit to apply a different standard, opting to follow the U.S. Department of Labor regulations providing that an “employee must be completely relieved from duty” in order for a meal period to be deemed bona fide and thus not compensable.

In Babcock v. Butler County, a putative class action lawsuit, employees ...