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

  • Sales Representatives Get Certification On Failure To Include Commissions In Overtime Class Action: A Cautionary Tale It is vital for employers to remember that when non-exempt employees earn commissions, those commissions must be included in the computation of their regular rate when they work overtime. The inclusion of the commissions bumps up the regular rate a little but if this is not done, then these small amounts of money can quickly add up if an employee or, worse yet, a class of employees files a lawsuit. That is exactly what has happened in a recent case... More
  • USDOL Issues Guidance On Independent Contractor Issues In The Home Health Care Industry—The More Things Change… I am a big believer in advice from the U.S. Department of Labor. I have applauded the re-introduction of opinion letters and I welcome any published guidance (on any subject) so I can better advise/counsel my clients on compliance issues. The home health care industry has been aflutter recently with all kinds of litigation and DOL issuances. A thorny issue is when/if someone working in this field is an independent contractor. Well, the agency has recently published guidance on this... More
  • Another USDOL Car Wash Lawsuit Highlights The Issues In That Industry The car wash industry is one that is subject to many alleged wage-hour issues (some might say abuses). A recent case illustrates this maxim. A car wash has just settled a lawsuit with the USDOL for $4.2 million on wage hour claims. The theory was that the employer avoided paying proper minimum wage and overtime by compelling workers to clock out but yet remain on the premises until more cars came in for washes. The case is entitled Acosta v.... More
  • Happy Birthday FLSA: Eighty And (Maybe Not) Still Going Strong! The Fair Labor Standards Act is eighty years old this month and commentators strongly suggest that the law needs updating in many areas. My colleague Tammy McCutchen stated that a complaint-driven mechanism defense should be engrafted into the FLSA. She stated that “I think employers should get the opportunity to avoid [some liability] by having in place a system of compliance and taking appropriate action based on investigations, just like they have under Title VII and the ADA and the ADEA.” In... More
  • Yet Another Assistant Manager Collective Action: Will They Never End? I have often written about the scourge of Assistant Manager class actions. The employee category is particularly subject to this kind of lawsuit as these workers often perform some non-exempt work and it is unclear many times if they possess and exercise sufficient and proper supervisory authority. A recent case in New Jersey provides yet another example. A federal judge has just conditionally certified a class of Assistant Store Managers who work for Panera Bread. They allege that they were... More
  • What The New DOL Rulings/Regulations May Bring? I have blogged about some USDOL initiatives of late and see they are picking up some momentum with further developments coming down the line. The agency is going to revise the manner in which overtime is calculated (maybe to the employer’s benefit) and speak more on the issue (thorny as it is) of inclusion of bonuses in the regular rate. By AgnosticPreachersKid (Own work) [CC BY-SA 3.0], via Wikimedia CommonsThere are other forms of “compensation” for employees, such as employee discounts... More
  • Information/Records Request on OT Rule Is Being Delayed by USDOL—Why? A group that monitors government activities sued the U.S. Department of Labor last year seeking records related to the agency’s position and work on the new overtime rules and the fiduciary rules asserted to a federal judge that the agency was being less than forthcoming with the documents. In response, the Judge stated that he was “concerned” about the agency’s lack of responsiveness. The case is entitled American Oversight v. U.S. Department of Labor and was filed in federal court... More
  • New Supreme Court Class Action Ruling A Boon For Employers The legal world is abuzz with the ripples created by a recent US Supreme Court decision on the statute of limitations in class actions.  A recent post in the Epstein Becker Wage & Hour Defense Blog makes some interesting observations on the case and the issue of its application to wage-hour/overtime class actions.  The case is entitled China Agritech, Inc. v. Resh  and issued from the US Supreme Court a few days ago. Under the FLSA, each week in which an... More
  • Homework Can be Compensable Work Hours—Can You Believe It? I have often blogged (and am concerned about) working time issues, especially when they comprise the basis for a class action. These are “soft,” subtle activities that may rise to the level of compensable time, catching n employer unawares. A recent example of this is a class action filed seeking compensation for “homework” done after an employer mandated training session. The case is entitled Acevedo et al. v. Southwest Airlines Company and was filed in federal court in the District... More
  • The Epic Systems Case—Note To Employers—Don’t Wish For Something Because You May Get It! We have experienced a watershed change in the law this week and its ripples will move outward in ever widening circles for years to come. This is, naturally, the decision in Epic Systems Corp. v. Lewis (one of a trio of cases, the others being National Labor Relations Board v. Murphy Oil USA and Ernst & Young LLP v Morris) that dealt with the issue of class action waivers in arbitration agreements. Well, the Supreme Court agreed with the employer... More