Category Archives: Wage & Hour

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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

Automatic Gratuities Are Now Wages For FICA Tax Purposes

Restaurateurs and wait staff beware: beginning this month, the IRS will classify automatic gratuities not as “tips,” but as service charges reportable as regular wages which are subject to payroll tax withholdings.

Rev. Rul. 2012-18 provides that automatic gratuities – like that automatic 18 percent added to the bill for a party of six or more — are service charges, … Continue Reading

Florida’s Minimum Wage is Now $7.93

Florida’s minimum wage rate increased to $7.93 effective January 1, 2014.  As we reported in November, Florida’s minimum wage law requires the Florida Department of Economic Opportunity to recalculate Florida’s minimum wage annually based upon the increase in the federal Consumer Price Index for Urban Earners and Clerical Workers in the Southern Region. This minimum wage increase applies to all … Continue Reading

On Second Thought, Wage Ordinance Does Not Expand Federal Court’s Jurisdiction

Miami-Dade County’s prevailing wage ordinance, which sets minimum wages on publicly funded construction projects, does not authorize plaintiffs to litigate prevailing wage claims in court under the auspices of the Fair Labor Standards Act, according to a recent court decision, Calderon v. Form Works/Baker JV, LLC (S.D. Fla., December 12, 2013).  The opinion is a reversal of the court’s prior … Continue Reading

Employers Prepare for Minimum Wage Increases in 2014

Florida’s current $7.79 hourly minimum wage rate will increase to $7.93 effective January 1, 2014.  Florida’s minimum wage law requires the Florida Department of Economic Opportunity to recalculate Florida’s minimum wage annually based upon the increase in the federal Consumer Price Index for Urban Earners and Clerical Workers in the Southern Region. This minimum wage increase applies to all employees … Continue Reading

It’s Official – Offering Full Monetary Relief Without a Judgment Will Not Moot FLSA Case

Last year we reported on the Eleventh Circuit’s decision in  Zinni v. ER Solutions, Inc. (11th Cir., August 27, 2012), which seemed to signal that a defendant in a Fair Labor Standards Act case cannot moot the case by offering full monetary relief to the plaintiff without also offering a judgment to the plaintiff.  The issue is significant because … Continue Reading

Minimum Wage and Overtime Pay Extended to Certain Direct Home Care Workers

On September 17, 2013, the U.S. Department of Labor’s Wage and Hour Division announced a final rule extending the Fair Labor Standards Act’s minimum wage and overtime protections to cover certain direct care workers such as certified nursing assistants, home health aides, personal care aides, caregivers and other companions who provide essential home care assistance to elderly people and people … Continue Reading

The Continuing Saga of Unpaid Workers & Misclassification Issues

Worker misclassification continues to be an issue at the forefront of today’s workplace.  Along with the use of unpaid interns, we are now seeing litigation brought on behalf of unpaid volunteers seeking compensation.  In the last week alone, three court filings highlight various issues related to unpaid workers:

  • On August 6, 2013, an unpaid summer intern working at Columbia Music
Continue Reading

Employer’s Back Door Settlement of FLSA Claim Backfires

An employer’s settlement of a Fair Labor Standards Act claim directly with a former employee rather than with the former employee’s attorney was invalid and should not have been approved by the federal district court, according to a recent decision by the Eleventh Circuit Court of Appeals, Nall v. Mal-Motels, Inc. (11th Cir., July 29, 2013).

Candace Nall worked … Continue Reading

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