Category Archives: Wage & Hour

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New, Even Broader, Joint Employer Test Adopted

Employers may think the concept of joint employer being pushed by the National Labor Relations Board (NLRB) is overly broad, but a recent decision by a federal appellate court in Richmond, Virginia adopts the most expansive definition yet. Last month the federal appellate court pronounced that two entities or individuals should be considered a joint employer of the same worker … Continue Reading

State and Local Governments: Battling for Control of Workplace Laws

While local governments are increasingly seeking to regulate the workplace, many states are taking aggressive action to counter these efforts. Over the past several years, more than 20 states have enacted preemption laws which prevent such localities from increasing the minimum wage, expanding anti-discrimination protections, requiring employers to provide paid sick leave, and regulating employee meal breaks and rest periods. … Continue Reading

States May Step Into Void Created by Demise of DOL’s Overtime Rule

Since the Department of Labor announced the new overtime rule last May, we have been closely following its rocky implementation in a series of posts. Presently, the rule – which would render an estimated 4 million workers eligible for overtime by effectively doubling the salary threshold for exempt employees to $47,476 – remains stayed by a federal court in … Continue Reading

Employer Exposure Increases: Emotional Distress Damages in FLSA Cases

The number of federal courts allowing plaintiffs to recover emotional distress damages in Fair Labor Standards Act (FLSA) retaliation cases is expanding, with the Fifth Circuit Court of Appeals last month joining two other circuits that have permitted such damages. The case Pineda v. JTCH Apartments, L.L.C. (5th Circuit December 19, 2016), involved maintenance employee Santiago Pineda, who lived … Continue Reading

Minimum Wages Climb

Workers will now receive higher minimum wages mandated by state law in 19 states, effective this month. Florida’s minimum wage increased to $8.10 an hour from $8.05 an hour, effective January 1. Tipped employees in Florida are now entitled to receive a minimum of $5.08 an hour. Workers in Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Hawaii, Maine, Massachusetts, Michigan, Missouri, … Continue Reading

The New Salary Regulations: The Saga Continues

While employers took solace from the Nov. 22 nationwide preliminary injunction which blocked implementation of a controversial rule increasing the salary threshold for employees to be exempt from overtime, the battle is not over. The Department of Labor filed its notice of appeal December 1, the same day the new salary regulations were to take effect.… Continue Reading

Employers Can Be Thankful: New Salary Regulation Delayed

Providing employers with a piece of good news, a Texas court has issued a nationwide preliminary injunction that delays the December 1 implementation of the controversial final rule that increased the salary level for exempt employees to $47,476, more than double what it had been. The court found that the 21 states challenging the rule showed both that they were … Continue Reading

Hope for Employers: Court Says Home Health Aides Can’t Bring Collective Action

Courts have been quick to allow one employee claiming to be due overtime to sue on behalf of others in the same job category by certifying a collective action, allowing that employee to represent the class and requiring the employer to provide contact information for others in the same job category.  However, in a case with potentially far reaching implications … Continue Reading

Long-Awaited New Overtime Rule Issued

Beginning December 1, 2016 employers will have to pay “white collar” workers a salary of $47,476 ($912 a week) and ensure that they meet certain job duties tests established by law or else pay them overtime, under new regulations issued this week by the U.S. Department of Labor. Bonuses and commissions can count toward as much as 10 percent of … Continue Reading

New York State Increases Minimum Wage and Enacts Paid Family Leave

For employers with employees in New York State, the cost of doing business in the state is going to go up due to recent legislation.  New York State recently passed the following two important changes in the law which will impact all employees in the state: (a) an incremental increase in the minimum wage, and (b) paid family leave.… Continue Reading

Representative Evidence May Or May Not Be Sufficient

A recent U.S. Supreme Court case holding that representative evidence can be used in class/collective actions to the same extent that it could be used in an individual action may not have the broad application hoped for by the plaintiff’s bar. In Tyson Foods, Inc. v. Bouaphakeo, the Court held it permissible for the class representatives in a wage … Continue Reading

D.C. Circuit Reinstates Home Health Care Regulations

Earlier this year, we brought news that the DOL had revised its regulations applicable to home health care workers. Those regulations, which related to domestic workers who provide “companionship services,” narrowed significantly the classes of workers who were exempt from the minimum wage and overtime protections of the FLSA by removing the ability of home health care agencies to claim … Continue Reading

FLSA: Changes Continue to Affect Employers

This past year has brought major changes to the laws affecting wage and hour issues. The Department of Labor has been particularly active this year putting out its first Administrator’s Interpretation regarding independent contractors. The Department of Labor also made a big splash with its long anticipated proposed new regulations to update the Fair Labor Standards Act’s “white collar” exemptions. … Continue Reading

Employment Law Trends for 2015

Few can quibble with the fact that 2015 has been a busy year for employment law. From historic pronouncements of the Supreme Court concerning fundamental and civil rights, to the Department of Labor’s release of guidance to curb misclassification and proposed new regulations to update the Fair Labor Standards Act’s “white collar” exemptions, to the General Counsel of the National … Continue Reading

Employers Cannot Rely on Timekeeping Policies as a Defense to FLSA Claims

An employee’s violation of timekeeping policies is not a defense to a Fair Labor Standards Act claim, if the employer knows or has reason to know that an employee underreported his hours, according to a recent decision by the Eleventh Circuit Court of Appeals, Bailey v. TitleMax of Georgia, Case No. 14-11747 (11th Cir., January 15, 2015).… Continue Reading

Home Health Care Remains Affordable: New Companionship Exemption Rules Overturned

A federal court has invalidated the U.S. Department of Labor’s (“DOL”) amended rule that would have extended minimum wage and overtime protections to nearly two million home health care workers and affected the cost and availability of those services to the millions of patients under their care. The ruling represents a significant victory for the home health care industry, though … Continue Reading

Update: Time Spent Going Through Security Is Not Indispensable and, Therefore, Is Not Compensable

In an important decision under the Fair Labor Standards Act, the Supreme Court has issued a ruling in Busk v. Integrity Staffing Solutions, Inc. in favor of employers. As previously discussed in October, the Court had to determine whether employers are required to pay their hourly employees for time spent going through an anti-theft security clearance at the end of … Continue Reading

Florida’s Minimum Wage Increases to $8.05 in 2015

As 2014 comes to a close, employers must be aware of the pending increase in wages for their nonexempt employees. Florida’s minimum wage will increase to $8.05 on January 1, 2015. With the increase, Florida’s required minimum wage is nearly one dollar more than the federal minimum wage ($7.25). On September 30th of each year, Florida’s Department of Economic Opportunity … Continue Reading

The Audit’s Done, and We Need to Reclassify – Now What?

Let’s assume you’ve done an internal audit, or one required by the Department of Labor, and found – as so many companies do – that certain titles/positions require reclassification from exempt to non-exempt under the Fair Labor Standards Act and state law.  What are the next steps?

The task of making reclassification a reality requires consideration of many factors.  For … Continue Reading

Avoiding Misclassification of Workers Under the FLSA

The news of late has been filled with articles about employers who are being sued for the misclassification of workers and the failure to pay overtime.  South Florida continues to be a hotbed of this litigation.  While Florida has only 6% of the nation’s working population, it also boasts 27% of cases filed nationally under the Fair Labor Standards Act.  … Continue Reading

The Supreme Court Clarifies the Meaning of the FLSA’s “Changing Clothes” Exception

In a near unanimous decision on Monday, the United States Supreme Court further clarified the multifaceted and oft-litigated issue of whether “donning and doffing” of some protective gear prior to or following a work shift falls within the “changing clothes” exception of the Fair Labor Standards Act (“FLSA”).  The Court’s decision permits such actions to be deemed noncompensable in a … Continue Reading

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