Wage & Hour — Developments & Highlights


Mark contributes to the Wage & Hour — Developments & Highlights blog to provide the latest information and his observations on new developments in wage-hour law, such as class actions, exemption/misclassification and working time issues.

Recent Blog Posts

  • A Lesson for Employers – Take the Easy Way Out: No Jurisdiction in FLSA Lawsuit I always look for the easiest way out of a FLSA lawsuit. I use the word “easiest” in the most generic sense, as no magic bullet defense is truly easy. However, there are times when you catch lightning in a bottle, i.e. the jurisdictional defense. In a recent case, the Company was able to use this defense/shield to dismiss a FLSA overtime suit. The case is entitled Zheng v. Best Food In Town, LLC et al and was filed in... More
  • Save Local Business Act Passes House: Legislative Narrowing of a Judicial Doctrine I recently blogged about this possibility and now it has come to fruition. The House of Representatives has passed a proposal to walk back the Obama USDOL initiative to expand the doctrine of joint employer status/liability for violations of labor law. The vote was 242-181 and followed (mostly) party lines. The new law would amend the National Labor Relations Act and the Fair Labor Standards Act to state that one entity would be jointly liable for another entity’s labor law... More
  • The Beat Goes On for the New USDOL Overtime Rule I remember with fondness the Sonny & Cher song, “The Beat Goes On.” That song could be easily applied to the saga of the USDOL overtime rule, which continues. Although the proposed rule has been shot down by the Fifth Circuit, the USDOL will now request that the Fifth Circuit reverse a Texas federal court order blocking the new rule. That new rule would have doubled the salary threshold for employees to be exempt. The DOL has stated that it would... More
  • Third Circuit Rest Break Case Has Different Slant It is well-established that short rest breaks, so-called coffee breaks, are compensable under the Fair Labor Standards Act. In a variation on this age-old theme, in a unique set of circumstances, the Third Circuit has affirmed that employers must pay for breaks of up to twenty (20) minutes. In this case, the Company did not pay sales workers who logged off of their computers for more than a minute and a half. The case is entitled U.S. Department of Labor... More
  • Third Circuit Ruling Gives Employers Some Relief On “Willfulness” Claims In FLSA Collective Actions In every FLSA class action I have defended (as well as every demand letter I have seen on this subject) the plaintiff’s lawyer always alleges that the violations were “willful.” It does not matter what the facts are. No, they say, the violations are “always” willful. The violations rarely, in fact, are. Now, the Third Circuit has given defense practitioners some added ammunition to beat back these allegations. The case is entitled Souryavong v. Lackawanna Cty. and issued from the... More
  • Independent Contractor Status and the ABC Test I have handled almost 100 unemployment insurance audits by the New Jersey DOL, where the underlying gravamen is that certain individuals are or are not independent contractors. The Auditors enforce the law very strictly and follow, in my view, an almost mechanistic approach in their determinations that virtually every 1099 person they audit is an “employee.” Well, in a very interesting New Jersey Appellate Division decision, the Court found that pyrotechnicians at a fireworks manufacturer were “true” independent contractors. This decision... More
  • More Law Firms Hit With FLSA Misclassification Claims: A Cautionary Tale I have written a number of times about law firms that have been sued in FLSA actions. Another example. Employees have sued two Florida personal injury law firms, alleging that they were misclassified and not properly paid proper overtime wages in violation of the Fair Labor Standards Act. In fact, there are two class actions filed. The cases are entitled Durrett v. Disparti Law Group PA et al and Hinkle v. Jodat Law Group PA. et al. Both cases were filed... More
  • Bank Files Cert Petition to US Supreme Court On Administrative Exemption: The Neverendng Story There have been so many cases involving employees in the financial services industries and their exempt status or lack thereof. In another variation on this theme, Provident Savings Bank is seeking review by the US Supreme Court of a Ninth Circuit decision that gave new life to allegations that its mortgage underwriters are non-exempt and entitled to overtime. The bank asserts that these employees are exempt under USDOL regulations, i.e. the administrative regulations. The case is entitled Provident Savings Bank,... More
  • Beauty School Students Are “Dropouts” From the FLSA According to Seventh Circuit In the movie “Grease,” there is a song entitled “Beauty School Dropout,” sung by Frankie Avalon. Well, in a legal version of that number, the Seventh Circuit has affirmed that beauty school students have, sort of, dropped out of the FLSA as they are not considered employees. The case is entitled Hollins v. Regency Corp., and issued from the Seventh Circuit Court of Appeals. The decision affirmed a lower court decision, holding that a cosmetology student who worked at the beauty... More
  • Urban Outfitters Decertifies FLSA Class: Too Many Individual Differences (Again) I have blogged (somewhat incessantly, I admit) about manager FLSA class actions and what the line(s) of defense are for the employer in these cases, and how to defeat these cases. Another case in point. A federal judge has now decertified a collective class, following the Magistrate Judge’s recommendation against the class continuing in this overtime action. The case is entitled McEarchen et al. v. Urban Outfitters Inc., and was filed in federal court in the Eastern District of New... More