By Michael Kun
Understandably, employers have celebrated the U.S. Supreme Court decisions in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ---, --- S.Ct. ---, 180 L. Ed. 2d 374 (2011) and AT&T Mobility v. Concepcion, 563 U.S. ---, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011). At the very least, those cases would seem to suggest that the wage-hour class actions and collective actions that have besieged employers might be curtailed significantly, along with the costly settlements triggered by the in terrorem effect of such lawsuits.
California employers can stop celebrating, or at least tone down ...
By Michael Kun and Betsy Johnson
In a much-anticipated decision, the California Supreme Court has expanded the scope of California’s complex wage-hour laws to non-resident employees who perform work in California. While the decision leaves more than a few questions unanswered, it will require a great many employers to review their overtime and other payroll practices. Perhaps just as importantly, it will likely open the door to lawsuits, including class actions, regarding prior overtime and payroll practices.
The case, Sullivan v. Oracle, has had a tortured history. In the ...
By Betsy Johnson and Evan J. Spelfogel
Employment litigation is growing at a rate far greater than litigation in general. Twenty-five times more employment discrimination cases were filed last year than in 1970, an increase almost 100 percent greater than all other types of civil litigation combined. Case backlogs at the U.S. Equal Employment Opportunity Commission ("EEOC") and in state and federal courts and administrative agencies nationwide number in the hundreds of thousands. Class and collective wage and overtime cases are inundating the courts. These types of cases now ...
By: Kara M. Maciel
The Department of Labor’s Wage and Hour Division in Norfolk, Virginia has announced that it will be stepping up its compliance audits and enforcement efforts against area hotels. In the past few years, the DOL stated it found violations at about 60% of local hotels. According to the DOL, the agency recently made spot checks at 10 area hotels since April. This is just one part of the agency’s nationwide enforcement program and its “Plan/Prevent/Protect” initiative against the hospitality industry. Common violations assessed by the DOL include:
· ...
By Rhea G. Mariano and Betsy Johnson
The issue of whether California law requires employers to ensure that employees take meal periods or to merely make meal periods available is hotly contested and regularly litigated. The issue is currently before the California Supreme Court in Brinker Restaurant v. Superior Court (review granted Oct. 22, 2008 (Brinker) and Brinkley v. Public Storage (review granted Jan. 14, 2009 (Brinkley)).
While employers await the California Supreme Court’s decision in Brinker and Brinkley, on May 10, 2011, the California Court of Appeal, Second ...
By Michael Kun and Betsy Johnson
Under the Obama administration, the U.S. Department of Labor (DOL) has implemented a number of initiatives in support of its enforcement of federal wage and hour laws and its mission of making employers more accountable for compliance with these laws. These include the “We Can Help” and “Bridge to Justice” initiatives.
The DOL has now announced that it is launching a free application for smartphones. This new “app” provides non-exempt employees with an electronic “timesheet” that allows them to independently track the hours they ...
Please join David Barron, Jay P. Krupin, and other attorneys from EpsteinBeckerGreen as we present eight panels covering labor and employment topics that have increasingly impacted employers in the health care industry.
Our first panel, entitled Significant Labor and Employment Issues that Affect Health Entities, will include representatives from the health care industry, such as a hospitals, skilled nursing facilities, and emergency medical services. These executive panelists will discuss the critical labor and employment issues they are currently experiencing and ...
By Douglas Weiner and Charles H. Wilson
In a recently reported case from the Eighth Circuit Court of Appeals, Applebee’s servers and bartenders alleged they spent a “substantial” amount of time performing non-tipped work, such as cleaning and maintenance, and, therefore, should be paid the minimum wage of $7.25 for the time spent performing non-tipped work, rather than the direct wage of $2.13 the FLSA allows employers to pay employees in tipped occupations See 29 U.S.C. § 203(m) and 29 U.S.C. § 203(t).
Applebee’s argued it properly applied a tip credit to the servers and ...
On August 23, 2004, the U.S. Department of Labor overhauled the Federal overtime exemption regulations with amendments that included elimination of the former “long” and “short” tests for exemption (the application of one or the other being determined by the employee’s salary level), in favor of a single, streamlined duties test for each category of exemption, including executive, administrative, professional and outside sales employees. Since that time, New Jersey’s overtime exemption regulations, which were modeled on the Federal ...
By Michael Kun
Employers who do business in California are already well aware of the wage-hour class actions that have besieged employers in virtually every industry. Class claims for misclassification of employees as exempt employees or independent contractors first began to be filed more than a decade ago, and continue to be filed on a daily basis. Claims for alleged work off-the-clock and missed meal and rest periods by non-exempt employees generally began later, but continue to be filed at an alarming rate.
Now we can add to those cases a new wave of California class actions ...
by Kara Maciel
Once again, the U.S. Department of Labor is requesting additional funding from Congress in its 2012 budget proposal to increase its efforts toward regulation and enforcement of wage and hour and employment laws. While the DOL’s budget proposal would reduce its overall discretionary spending by 5%, the budget cuts will not affect the staff and resources that enforce wage and hour laws. Instead, the Wage and Hour Division is asking for $241 million – an increase of $13.3 million from last year’s estimated budget.
In particular, the Wage and Hour Division is seeking ...
By Michael S. Kun, David W. Garland, Douglas Weiner
The Ninth Circuit Court of Appeals has become the latest Circuit Court to weigh in on the subject of whether pharmaceutical sales representatives are covered by the FLSA outside sales exemption. The result, in Christopher v. SmithKline Beecham, No. 10-15257 (9th Cir. Feb. 14, 2011), is a resounding victory for employers in the pharmaceutical industry.
The plaintiffs and the Secretary of Labor argued, among other things, that sales representatives in fact do not make sales at all, which places them outside the bounds of the outside ...
EBG colleague Susan Gross Sholinsky recently prepared an Act Now Advisory discussing New York State’s December 21, 2010 opinion letter regarding whether an internship will qualify for an exception to applicable minimum wage rules. The New York State Department of Labor utilizes the United States Department of Labor’s six-step test, but adds an additional five factors to determine whether the internship will be exempt from minimum wage rules. In order to qualify for the exemption, the following eleven factors must be satisfied:
1. The training, even though it includes ...
Following up on our previous blog posting from November 2, 2010, on December 16, 2010, the New York State Department of Labor issued a new minimum wage order (the “Order”) which will bring immediate changes to the restaurant and hotel industries. Under the Order, employees will be due a higher minimum wage and subject to new tip pooling rules. Meanwhile, employers will need to comply with more stringent recordkeeping requirements. Although employers have until February 28, 2011, to adjust their payrolls, they will still owe their employees back pay as of ...
The United States District Court for the Northern District of California has denied certification of a class action against Joe's Crab Shack restaurants on claims that employees worked off-the-clock, were denied meal and rest breaks, and were required to purchase t-shirts to wear at work. Because the case was handled by our EpsteinBeckerGreen colleagues Michael Kun and Aaron Olsen, we do not believe it is appropriate to comment on the decision or its implications. If you would like to read the decision, a copy may be found here.
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If you have questions, please reach out to the author(s).
The Workforce Bulletin blog is currently edited by Adam S. Forman, Greta Ravitsky, Elizabeth S. Torkelsen, and Jennifer Stefanick Barna.
By Michael Kun and Doug Weiner
It is no secret that employers have been beseiged by wage-hour litigation, including wage-hour class actions and collective actions. It is also no secret that the persons who benefit most from these actions are often plaintiffs' counsel, who frequently receive one-third or more of any recovery. Now, as a result of an unprecedented new program initiated by the the Department of Labor's Wage and Hour Division ("WHD"), the WHD will be practically delivering potential plaintiffs to the doors of plaintiffs' counsel -- and the WHD has invited plaintiffs ...
by Michael Kun and Aaron Olsen
In recent years, some plaintiffs' counsel bringing wage-hour claims have have made the strategic decision to bring "hybrid" class actions; that is, actions alleging both federal and state wage-hour claims. These cases can cause logistical nightmares for the courts, and great benefits for plaintiffs, for two primary reasons: (1) the standard for certification of a class is differerent for federal and state claims, and (2) classes in federal claims are "opt in" classes while those for state claims are "opt out" classes. Indeed, in bringing ...
On October 14, the IRS announced that the Health Care Reform Law's requirement that employers report the cost of health insurance on W-2's along with wages will be delayed by one year. Now, employers must report health insurance cost on the 2012 W-2s, which in most cases will be issued to employees in January 2013.
The announcement explained that “the Treasury Department and the IRS have determined that this relief is necessary to provide employers the time they need to make changes to their payroll systems or procedures in preparation for compliance with the new reporting ...
During the last year, courts have reached different conclusions as to whether outside sales representatives of pharmaceutical companies are exempt and therefore not entitled to receive overtime under the Fair Labor Standards Act. These cases turned on the specific duties assigned to the sales representatives by their employers and point out that pharmaceutical companies need to review carefully the responsibilities of these employees.
In Smith v. Johnson & Johnson, 593 F.3d 280 (3d Cir. 2010), decided by the Court of Appeals for the Third Circuit in ...
by Michael Kun
The California Supreme Court has announced what can only be considered a major victory for hospitality employers in California.
California Labor Code section 351 probibits employers from taking any tip that customers may leave for employees. Many hospitality employers have long used tip-sharing policies, whereby tips left by customers are divided among those involved in service. In recent years, those tip-pooling practices have been challenged under section 351 as part of the wave of wage-hour class actions brought against California hospitality employers.
On June 16, the Department of Labor issued an “Administrator’s Interpretation” addressing the compensability of time spent by employees changing clothes and equipment before and after work (commonly referred to as “donning and doffing). The Interpretation reversed opinion letters on the subject issued by the Bush administration in 2002 and 2007, and lowered the standard for employees to seek compensation for such activities.
The Interpretation addressed two issues. First, the advisory notes that Section 203(o) of the Fair Labor Standards Act (FLSA), which ...
The Wage and Hour Division issued new updated regulations for non-agricultural industries on May 19, 2010. These laws strengthened the restrictions on minors under age 18 working in dangerous occupations or around certain equipment or machinery in the workplace.
A practical chart from DOL showing the differences in the old and new regulations can be found here.
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If you have questions, please reach out to the author(s).
The Workforce Bulletin blog is currently edited by Adam S. Forman, Greta Ravitsky, Elizabeth S. Torkelsen, and Jennifer Stefanick Barna.
On April 1, 2010, Secretary of Labor Hilda Solis announced a new campaign entitled "We Can Help," aimed at assisting low income workers in reporting wage and hour violations to the Department of Labor. The campaign consists of a new website and 1-800 number, combined with bilingual public service announcements by celebrities such as Esai Morales and Jimmy Smits.
The campaign is primarily targeted at employees in the construction, food service, janitorial, hospitality and health care fields. Employers in these targeted industries should be congnizant of these stepped up ...
The New York State Department of Labor ("DOL") has recently made available important new information for employers regarding their obligations under Section 195.1 of the Labor Law including notice of pay rates, pay dates and other information.
As we previously reported (see EBG Client Alerts of December 11, and October 30, 2009), pursuant to Section 195.1 of the Labor Law (the "Statute"), as of October 26, 2009, employers must provide newly hired New York employees with written notice of their: (1) pay rate; (2) overtime pay rate (if they qualify for overtime pay); and (3) regular ...
by Michael Kun
The California wage-hour epidemic has entered its second decade.
While there is little on the horizon to suggest that these cases are about to come to an end, there are a few glimmers of hope now.
The first glimmer of hope comes from a case that has been pending before the California Supreme Court since 2008. California employers continue to await a ruling on meal and rest breaks from the California Supreme Court in Brinker. A ruling that breaks need only be "made available," not "ensured," may not put an end to meal and rest break class actions, but it should slow them down ...
On February 1, 2010, President Barack Obama released his federal budget for the coming fiscal year, including $117 billion for the United States Department of Labor, of which $25 million was set aside expressly to help the DOL combat employee misclassification. This includes, specifically, identifying and litigating against employers that categorize workers as independent contractors when, in fact, they are employees, and that classify as exempt from overtime those employees who do not meet the requirements of the White Collar Exemptions under Part 541 of the ...
By Doug Weiner
In a decision dated January 5, 2010 the D.C. Circuit raised that question in a case involving the administrative exemption in a Fair Labor Standards Act class action.
Stating the District Court had no occasion to decide whether the job of a GEICO auto damage adjuster is so easy a caveman could do it, (referring to GEICO’s well known ad campaign in a light hearted footnote) the appellate court held that GEICO satisfied its burden of proof that its employees performed exempt administrative duties. The appellate court reversed the district court’s summary judgment for ...
By Doug Weiner
The U.S. Department of Labor (“DOL”) has announced an intention to initiate a rule making process concerning the records employers are required to make and keep pursuant to the Fair Labor Standards Act (“FLSA”). Section 11 of the FLSA requires employers to keep specified records of the hours employees work, and the wages they are paid. The DOL proposes to update the recordkeeping regulations under the FLSA in order to enhance the transparency and disclosure to workers of how their pay is computed, and to modernize other recordkeeping requirements for ...
By Amy J. Traub
On December 16, 2009, Judge Laura Taylor Swain of the United States District Court for the Southern District of New York granted summary judgment to Starbucks Corp. (“Starbucks”) in a wage/hour lawsuit filed by former and current baristas of Starbucks’s coffee shops located in New York.
In their lawsuit, filed in April 2008, the New York baristas argued that Starbucks had violated state wage and hour laws by splitting tips intended for baristas with shift supervisors, handing out tips on a weekly basis instead of on a per-shift basis, and failing to distribute tips ...
It is that time of the year when most companies start thinking about handing out year end or Christmas bonuses to their employees. For exempt workers, such payments are not a concern. For non-exempt workers, however, bonus payments raise the prospect of adding to the employee's regular rate, which could result in additional overtime liability. For example, if an employee works overtime in the week he receives a bonus check of $400.00, the Department of Labor may require the bonus to be included in the "regular rate" upon which the time and one half overtime calculation is based (i.e ...
by Betsy Johnson
On November 23, 2009, the Chief Counsel of the California Division of Labor Standards Enforcement ("DLSE") issued an Opinion Letter on behalf of the Labor Commissioner, Angela Bradstreet, in which the DLSE modified its enforcement stance on the issue of making deductions from exempt employee accrued vacation to cover partial-day absences. In the Opinion Letter, the DLSE opined that there is nothing in California law that would prevent an employer from implementing a policy that provides for hour-for-hour deductions from accrued vacation leave for partial-day ...
By Bill Milani, Jeff Landes, Susan Gross Sholinsky and Anna Cohen
We previously advised that the New York State Department of Labor ("DOL") had taken the stance that in order to comply with Section 195(1) of the New York State Labor Law (i.e., to provide proper notice to employees of their wages, overtime rates (if applicable) and paydays), employers would be required to utilize the DOL's official forms, which could be accessed at the DOL's Web site.
The DOL has now decided that, while employers may still elect to utilize the DOL's forms, employers need not utilize the DOL's forms in order ...
Often, employers ask their outside labor counsel to review job descriptions or other material to provide an opinion on whether a job, or group of jobs, should be classified as exempt from overtime requirements. Such efforts would seemingly be a classic example of a privileged attorney client communication made for the purpose of providing legal advice.
In a recent case out of California state court, however, this answer was not so clear at the trial and appellate level, who both required the employer to hand over a redacted version of such a letter in a class action overtime suit. The ...
Several of the firm's labor lawyers in our New York office provided the following update on recent changes to New York wage and hour laws.
As we previously reported in our Summer 2009 New York State Employment Law Update, as of October 26, 2009, New York Labor Law Section 195(1) requires employers to notify all newly hired employees of the following: (i) rate of pay, (ii) regular paydays, and (iii) hourly rate and overtime pay rate (for all non-exempt employees). Employees must sign a statement acknowledging receipt of the written notice, and employers must keep the signed statement for ...
According to a federal judge in California, the answer is "Yes." Judge Wilken of the U.S. District Court for the Northern District of California issued a summary judgment ruling on October 16, 2009 holding that temporary employees of Kelly Services were owed overtime for time spent in interviews for job placement. The rationale for the decision included findings that Kelly arranged the interviews, helped the applicants prepare for the interviews, and debriefed them afterwards. The judge rejected Kelly's arguments that the interviews were purely voluntary, and for the benefit ...
A conflict is brewing in the federal courts over whether a defendant's offer to settle a collective action FLSA case for full relief can moot the case and effectively deprive the court of jurisdiction. Plaintiff's lawyers view this tactic as a trick aimed at "picking off" class members to avoid a larger suit, while defendants argue that the courts should not be used to stir up litigation once a party's claim has been fully satisfied. Put simply, why continue a lawsuit once the plaintiff has won everything he or she could collect?
In a recent decision out of North Carolina, a federal judge has ...
In a recent Client Alert prepared by Jeff Landes, the firm summarized several new laws passed by the New York legislature which will affect employers. Among these laws was a very important change to the wage and hour laws, which will affect all companies with employees in New York.
Rate of Pay, Regular Pay Day and Overtime Rate Must Be in Writing and Acknowledged by New Hires
Labor Law Section 195(1) currently requires employers to provide newly hired employees with information regarding their rate of pay and the employer's regular pay days – such notice need not be written. On July 28 ...
A client this week asked us to provide an opinion letter regarding the exempt status of certain supervisors, and some tips on how to avoid lawsuits regarding mis-classification. Although some of the advice was specific to the client's business, much of the advice is applicable to a wide variety of industries. An excerpt from the memo is below.
- Carefully craft job descriptions to emphasize exempt duties over non-exempt duties – require employees to acknowledge their job descriptions in writing.
- List the two or more employees supervised by an exempt manager in the job ...
Furloughs are a hot topic in today's economy. I previously reported on the potential usefulness of furloughs, as well as the risk that reducing an employee's salary as part of a furlough program could run afoul of the "salary basis" test and jeopardize the employee's exempt status.
Recognizing the need for legal guidance on this issue, the U.S. Department of Labor's Wage and Hour Division recently issued a user-friendly "Frequently Asked Questions" fact sheet on furloughs. (Special thanks to my EBG colleague Elissa Silverman for bringing this to my attention.)
I don't ...
On July 27, 2009, the U.S. Court of Appeals for the Ninth Circuit held that a corporation's managers can be held personally liable under the Fair Labor Standards Act ("FLSA") for wages that the corporation failed to pay to employees prior to the employer's filing for bankruptcy. This opinion serves as a cautionary reminder of the risks managers potentially face when a corporation files for bankruptcy and has failed to pay its employees for all wages earned prior to the filing.
In Boucher v. Shaw, ---- F. 3d ----, 2009 WL 2217517 (9th Cir. 2009), former ...
After the recent seventy cent increase in minimum wage to $7.25, there were some interesting statements being made by Labor Secretary Hilda Solis. In a press conference on July 24, Secretary Solis announced that the increase will help 3 million to 5 million workers and is "projected to generate $5.5 billion in consumer spending over the next year." Of course, this statement implies that the money, if kept by businesses, would have just sat in a vault in the boss' office, and not have been spent on additional equipment, more employees, or expanding the business.
Under Solis, employers ...
I am pleased to report that the United States Court of Appeals for the Eleventh Circuit has affirmed the district court's summary judgment in favor of our client, a bus company, in a case involving the motor carrier exemption. The case is Walters v. American Coach Lines of Miami, Inc. (11th Cir., July 23, 2009).
I first reported on this case and discussed the basics of the motor carrier exemption in a September 2008 post on the Florida Employment Law Blog. My EBG colleague, Brian Molinari, recently summarized the Walters decision in a post on the Prima Facie Law Blog.
A quick ...
A number of recent lawsuits illustrate how changing workplace technology can form the basis for creative FLSA lawsuits. A wave of claims have been brought against Fortune 500 companies alleging that non-exempt employees have not been paid for "off the clock "duties such as logging into computer systems and responding to email and text messages after work hours and on weekends.
Putting aside the merits of these cases, this trend illustrates the legal implications of introducing technology into the workplace, especially when used by non exempt employees to work remotely. ...
By now, you are probably aware that the minimum wage under the federal Fair Labor Standards Act goes up to $7.25 on July 24, 2009. Employers with operations in Florida know that this is four cents more than the current Florida minimum wage of $7.21. Florida employers must pay the higher of the two wages.
But what's the minimum wage for tipped employees in Florida as of July 24th? The answer is not as simple as you might think, and you might be misled by reading the Florida Agency for Workforce Innovation web page on the minimum wage. That web page states the new federal ...
By Michael Kun and Matthew A. Goodin
California employers are celebrating a new California Supreme Court decision that effectively prevents unions from filing suit under the Labor Code Private Attorneys General Act ("PAGA") and the Unfair Competition Law ("UCL").
There is no reason to celebrate.
What appears to be a major victory for employers is, in fact, no victory at all once one considers the practicalities of litigation.
On June 29, 2009, the same day that it issued its highly anticipated opinion in Arias v. Supreme Court, holding that employees need not bring representative ...
By Michael S. Kun and Aaron Olsen
You probably remember the scene in Jaws when Roy Scheider's character first sees the shark that he and his crew have been pursuing.
And you probably remember what he says: "We need a bigger boat."
Well, after the California Supreme Court's latest ruling, California employers may need a bigger boat.
Already besieged by wage-and-hour class actions, California employers now need to brace themselves for a new wave of representative actions under California’s Private Attorneys General Act ("PAGA") after the California Supreme Court has made it ...
Doug Weiner and Matthew Miklave recently prepared a Client Alert noting an effort underway in Congress to broaden the application of the Fair Labor Standards Act in the Health Industry. That Alert is excerpted below.
Fifteen United States senators have stepped forward to urge the U.S. Department of Labor ("DOL") to repeal a broad exemption from the minimum wage and overtime requirements of the federal Fair Labor Standards Act ("FLSA") for home health care workers. Under current DOL regulations, home health care aides who perform companionship services for the elderly and ...
Times are tough out there. Company budgets are being slashed, along with the number of employees and available hours. Many supervisors suddenly find their departments doing the same amount of work with half the people. On the overtime front, this is a recipe for a disaster.
Under these conditions, many supervisors are trapped with little ability to approve overtime. Hard working employees may not even request approval for overtime knowing that it will be viewed as an admission they cannot perform their job at the expected level (and thus place them at the top of the list for the ...
by Douglas Weiner
Epstein Becker Green was well represented at the National Advanced Forum on Wage & Hour Claims and Class Actions held in New York City on May 19 and 20. EBG attorney Douglas Weiner addressed the Conference regarding his experience as a former Senior Trial Attorney for the U.S. Department of Labor, identifying emerging trends of Fair Labor Standards Act litigation, and the most expensive mistakes employers make – and how to avoid them. The second day Mr. Weiner moderated a panel of Judges experienced in presiding over wage & hour class actions who gave their ...
How quickly can $87 million go up in smoke?
Pretty darned quickly, especially if you are referring to the $87 million that was awarded to plaintiffs and their attorneys in a tip-pooling class action against Starbucks in San Diego.
In Chau v. Starbucks (CA4/1 D053491 6/2/09), Jou Chau, a former Starbucks barista, brought a class action against Starbucks challenging the Company's policy that permits certain service employees, known as shift supervisors, to share in tips that customers place in a collective tip box.
If you've ever been to a Starbucks, you know exactly where that tip box ...
by Michael Kun
It has not received much publicity -- yet -- but Representative Alan Grayson of Florida has introduced the Paid Vacation Act, a proposed amendment to the Fair Labor Standards Act.
In short, if passed, the Paid Vacation Act would require employers with 100 or more employees to provide one week of paid vacation each year to each of its employees who had worked for 25 weeks or 1,250 hours. Three years after passage, the Act would require those employers to provide two weeks of paid vacation, and smaller employers (those with more than 50 employees) would have to provide one week of ...
By Michael Kun
The wage hour class action epidemic that has plagued California employers for the last decade or so appears to have no end.
If anyone tells you otherwise, they are not paying enough attention.
And if they tell you the California Supreme Court is about to put an end to the epidemic, they are mistaken about that, too.
The California Supreme Court couldn't put an end to it even if it wanted to, at least not with the issues now before it. And who is to say that they want to do that anyway?
As in recent years, employers and their counsel are awaiting several important rulings from the ...
by Michael Kun and Kathryn McGuigan
In recent years, the alleged misclassification of employees under California's wage and hour laws has been a hotly contested issue and the subject of a great many class actions. Faced with several appeals pending before it, the Ninth Circuit has now sought guidance from the California Supreme Court on the outside salesperson and administrative exemption tests as they apply to pharmaceutical sales representatives. Such guidance should prove invaluable to employers in the industry, and to parties to these claims.
One of the issues that repeatedly rears its head in wage and hour litigation and Department of Labor investigations is whether employees are being compensated properly for meal periods. One practice that is almost always controversial, in this regard, is the automatic payroll deduction for lunch.
Absent thorough policies and safeguards to prevent inaccurate timekeeping, the automatic deduction is a significant legal risk that should be used with extreme caution. The reason -- it is too easy for employees to claim they have been asked to work through lunch, or that they can not ...
The following is a reprint of a client alert authored by EBG attorneys Doug Weiner and Frank Morris, Jr. It should be of interest to all Florida employers that are considering a reduction in force.
For many employers, these are desperate economic times. Every entity facing diminished revenue must consider cost cuts to survive. As news reports show, reductions in force (RIFs) are being used daily to achieve cost savings, and for some employers they may be the best solution. In some cases, however, the savings are not immediate as a result of statutorily required or voluntary notice ...
A federal court in the Southern District of Florida has rejected the "ultimate consumer" defense to enterprise coverage under the Fair Labor Standards Act. The case is Exime v. E.W. Ventures, Inc., Case No. 08-60099-CIV-SEITZ/O'SULLIVAN (S.D. Fla., December 23, 2008).
First, some background: To establish coverage under the Fair Labor Standards Act, a plaintiff must show that: (1) she was “engaged in commerce or in the production of goods for commerce” [individual coverage]; or (2) that she was employed in an enterprise “engaged in commerce or in the production of goods for ...
The Shavitz Law Group, one of the leading plaintiff-side FLSA firms in Florida, was sanctioned recently by U.S. District Judge Kenneth L. Ryskamp for soliciting plaintiffs in violation of Florida Bar rules. The case is Hamm v. TBC Corp. and Tire Kingdom, Inc., Case No. 07-80829-CIV-RYSKAMP/VITUNAC. The details of the case are laid out in a Report and Recommendation issued by Magistrate Judge Ann E. Vitunac.
In his Order Adopting the Report and Recommendation, Judge Ryskamp made some telling remarks about the the nature of FLSA litigation in the Southern District of Florida:
A report by the Government Accountability Office found that the Department of Labor's Wage and Hour Division, the federal agency charged with enforcing minimum wage, overtime and other labor laws, "is failing in that role, leaving millions of workers vulnerable," according to an article in today's New York Times.
One of the reports concerned the Division's office in Miami:
When an undercover agent posing as a dishwasher called four times to complain about not being paid overtime for 19 weeks, the division’s office in Miami failed to return his calls for four months, and when it did ...
Making FLSA collective actions go away quickly just got harder in Texas. In a recent decision in December 2008, the Fifth Circuit Court of Appeals (with jurisdiction over Texas) significantly limited the availability of a valuable defensive tactic regularly asserted by defendants in FLSA collective actions – the offer of judgment under Federal Rule of Procedure 68. Prior to the Court’s ruling, defendants were often able to reduce their liability under the FLSA by preemptively offering a settlement to class representatives, satisfying theirclaims in full. By ...
Despite the lenient standards for conditionally certifying an FLSA collective action, a federal court in Miami recently ruled that a collective action against a local auto dealership was inappropriate.
First, some background on FLSA collective actions. The Fair Labor Standards Act provides that an action for overtime compensation “may be maintained . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). The Eleventh Circuit Court of Appeals, which covers Alabama, Florida, and Georgia ...
The Shavitz Law Group and Morgan & Morgan, two of the leading wage-hour firms in Florida, stand accused of soliciting clients in violation of state ethics rules for a case pending in the United States District Court for the Northern District of Texas. The defendant in the case, Centex Homes, filed a Motion for Sanctions against the two firms on Friday.
Centex's motion follows on the heels of a story I reported last month, Judge Ryskamp's order in the Hamm case granting sanctions against the Shavitz Law Group for soliciting clients by telephone in violation of Florida Bar Rules. ...
In an important decision that explains the distinction between promoting and making sales, the Eleventh Circuit held recently that a marketing executive was exempt from the overtime and minimum wage provisions of the Fair Labor Standards Act as an outside salesperson. The case is Gregory v. First Title of America, Inc., Case No. 08-10737 (11th Cir., January 27, 2009).
Before addressing the facts of the case and the Eleventh Circuit’s holding, let’s review the applicable statute and regulations. The FLSA includes several exemptions from its minimum wage and overtime ...
The U.S. Department of Labor's Wage & Hour Division has issued two new opinion letters addressing circumstances under which employers may not reduce the hours of exempt employees without running afoul of the "salary basis" test and risking loss of the employees' exempt status.
First, some background. Employees exempt from the FLSA's minimum wage and overtime requirements as professional, executive, or administrative employees must be paid a salary of at least $455 per week. Under 29 C.F.R. § 541.602(a),
[a]n employee will be considered to be paid on a "salary basis" ...
Last month I reported that United States District Judge Kenneth L. Ryskamp had sanctioned the Shavitz Law Group, one of the leading plaintiff-side wage-hour firms in Florida, for soliciting plaintiffs in violation of Florida Bar Rules. The case was Hamm v. TBC Corp. and Tire Kingdom, Inc., Case No. 07-80829-CIV-RYSKAMP/VITUNAC.
The Shavitz firm recently struck back, filing a motion to disqualify or recuse Judge Ryskamp from presiding over a different case, a Fair Labor Standards Act collective action against Abercrombie & Fitch. The motion quoted Judge Ryskamp's ...
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