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

  • Overtime Rules Enjoined: What Should Employers Do? On November 22, 2016, Judge Mazzant of the U.S. District Court for the Eastern District of Texas issued a nationwide injunction against the Department of Labor (DOL) blocking its Final Overtime Rule, which was set to go into effect on December 1, 2016. The injunction “preserves the status quo while the Court determines the Department [of Labor]’s authority to make the Final Rule as well as the Final Rule’s validity.” Moving forward, the Final Rule may face an uphill battle as the... More
  • Use of Fluctuating Workweek Method To Compute Damages Disallowed A group of New Jersey sales associates who work in Dish Network LLC call centers urged a federal court to confirm a $1.9 million arbitration award stemming from a proposed class action, in which the workers said the satellite television provider miscalculated their overtime pay rates.  The case is entitled Frisari v. Dish Network LLC, and was filed in federal court in the District of New Jersey. Copyright: foottoo / 123RF Stock Photo The workers urge that the award, which gave the... More
  • Newly Reclassified Employees Still Seek Overtime for Alleged Earlier Misclassification: That’s Not Nice! A group of field service engineers have filed a FLSA suit against Alcon Laboratories, on the theory that the company misclassified them as exempt employees.  They seek conditional class certification, alleging that they were consistently denied overtime pay.  The case is entitled Voss v. Alcon Laboratories Inc., and was filed in federal court in the District of Minnesota. Copyright: nd3000 / 123RF Stock Photo The allegation is that the Company wrongfully classified field service engineers as exempt until the Company changed their... More
  • Use of Labor Law Preemption in FLSA Case Is a Good Start Whenever a FLSA suit is lodged against a unionized employer, I always look for the possibility of a preemption defense, which will, in one fell swoop, doom the entire litigation.  If the Court finds that the matter is governed by the parties’ labor contract and is better and properly left for the arbitration (or NLRB) process, then the Court does not have jurisdiction.  In a recent case, FreshPoint Inc. has tried to argue just that.  The Company has urged dismissal... More
  • Business Groups Want Fast Hearing On DOL Changes: Hope They Get It! I blogged about this a short time ago. More than fifty (50) business groups requested that a US District Court Judge render a fast decision in the case involving the constitutionality of the USDOL’s new overtime regulations, i.e. the doubling of the salary threshold.  The case is entitled Plano Chamber of Commerce et al. v. Perez and was filed in federal court in the Eastern District of Texas. Copyright: bbourdages / 123RF Stock Photo The theory is that the DOL exceeded its... More
  • Tax Records Discoverable And, Maybe, ATM/Cell Phone Records Are As Well? I read an interesting post the other day by Michael Thompson in the Wage & Hour Defense Blog, in which he discussed the discoverability of plaintiff ATM and cell phone records in a FLSA collective action case.  He discussed the case of Gonzalez v. Allied Concrete Industries, Inc., where the plaintiffs claimed they were not paid overtime in violation of the Fair Labor Standards Act and New York law.  The case was filed in federal court in the Eastern District... More
  • Lawsuits Filed In Effort To Stop New FLSA Salary Levels: An Exercise in Futility? For the last several months, I have been talking to and advising clients on strategies to deal with the advent of the new FLSA salary regulations, i.e. the $913 per week commencing December 1, 2016.  Maybe all that was for naught?  This is because more than fifty business groups and twenty-one (21) States have filed lawsuits challenging these rule changes.  The theory is that the agency unconstitutionally exceeded its authority to establish a federal minimum salary level for exempt, white... More
  • Another Judicially Ordered Production of Plaintiff Tax Returns in a FLSA Case: A New Trend? I recently blogged about the defendants in a FLSA case being able to secure plaintiff tax returns in discovery.  Maybe that was the start of a trend.  In a New Jersey case, a federal judge has ordered all of the named plaintiffs to produce tax returns for the tax years for which they claim damages in this action.  The case is entitled Kim v. Dongbu Tour & Travel, Inc and was filed in federal court in the District of New... More
  • Florida Golf Courses Settle A Bad FLSA Case: The Right Thing To Do! I had blogged about this case a short time ago, with my “take” being that this was a bad case for the employer and that it should be settled quickly.  Maybe they were listening.  Now, the employer, a Florida country club and the workers suing have requested that the federal judge dismiss the Fair Labor Standards Act (“FLSA”) suit, asserting that the club has paid almost $96,000 to 35 workers and $34,000 in fees to the lawyers.  The parties assert... More
  • Motion for Conditional Certification Defeated in Texas Oil Worker FLSA Collective Action Case: A Rare (But Welcome) Occurrence! It is not that often that a motion for conditional certification is denied, as there is only needed a modicum of evidence, e.g. affidavits, to support the motion.  But sometimes, it does happen.  A federal judge has refused to certify a collective action that sought a class of employees against Stuart Petroleum Testers Inc.  The plaintiffs allege that they were not paid overtime under the Fair Labor Standards Act, but the Judge concluded that the named plaintiff did not introduce... More