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

  • New Jersey Wage Theft Act Is Not Retroactive: I Am Not Surprised Last year, in August, the State of New Jersey enacted the Wage Theft Act (“WTA”) which strengthened the wage hour protections for employees across the State, including expanding the statute of limitations from two years to six years.  As might be expected, almost immediately, an enterprising plaintiff lawyer sought to amend his lawsuit to extend the statute of limitations to the maximum allowed by the law.  That effort has failed; a decision has issued that emphatically and clearly held that... More
  • Great Fifth Circuit Decision On Exclusion Of Bonus From Regular Rate Under FLSA I have often blogged about the thorny issue of bonuses under the FLSA and when those bonuses must be included in the regular rate of employees for overtime purposes.  The crucial test is whether the bonus is discretionary, meaning it need not be included, or is “promised” to employees, meaning it does have to be included, thereby raising the regular rate.  A recent federal appellate court decision fleshes this principle out in an interesting manner.  The case is entitled Edwards... More
  • Disclosure of Attorney Client Communications and the “Good Faith” Defense: You Can’t Have Your Cake and Eat It! Often, attorneys advise clients on FLSA issues, such as exemption issues.  Then, a lawsuit ensues and the employer may want to use the defense that it relied in good faith on its attorney’s advice.  The potential problem that creates is that the plaintiffs may then seek production of the otherwise confidential communications on this issue between lawyer and client.   A recent case illustrates how dangerous this can be as a federal Judge has rejected an employer’s bid not to... More
  • More USDOL Guidance On Virus Working Time Issues: Tracking Off-the-Clock Time I have written several times about employees working from home, e.g. telecommuting, and how employers must carefully keep track of their hours to avoid unauthorized overtime.  There are situations, however, that arise regarding unanticipated work and how employers should track and pay for this.  The USDOL has now assisted in this endeavor, as it issued guidance for the tracking of unscheduled work hours.  The agency has done this through the vehicle of publishing a Field Assistance Bulletin to agency field... More
  • Pre-Payment Plans: A Novel Way to Deal With Overtime Issues The FLSA contains a number of provisions that enable employers to manage, if not reduce, overtime costs.  One of these is called a pre-payment plan.  Under a Pre-Payment Plan, an employer pays anticipated overtime in advance in order to maintain the employee’s wage or salary level constant from pay period to pay period.  Excess payments made for short work weeks are treated by both the employer and the employee as a loan or cash advance to be repaid either by... More
  • Federal Court Holds That New Jersey Wage Hour Law Is More Favorable to Employees on Security Check Compensability Than the FLSA There have been many cases brought recently focusing on the compensability of security checks and in these days of temperature checking for COVID, we expect to see many more.  Some of these cases have gone for the employer and others for the employees.  In a recent case seeking compensation under the New Jersey Wage and Hour Law (“NJWHL”), N.J.S.A. 34:11-56a et seq.,employees sought compensation for time spent undergoing mandatory post-shift security screenings at an Amazon facility and for time spent... More
  • USDOL Revises FLSA Section 7(i) Retail Commission Exemption: Long Overdue And Very Welcome! I have handled a number of cases involving Section 7(i) of the Fair Labor Standards Act (“FLSA”) which provides an exemption from overtime for commissioned employees working for a so-called retail/service establishment.  One of the major hurdles for an employer in claiming the exemption is the necessity to prove that the employer is in a “retail” industry or business.  In this regard, the US Department of Labor (USDOL) had published, as part of the regulations, a ”partial list of establishments”... More
  • Case Highlights the Issue of Collectability of Judgments in FLSA Collective Actions: Is It Dissipation or Investment? A big part of being successful in a lawsuit, for the plaintiffs, and their lawyers, is the ability to collect on a judgment that they might actually secure.  I often represent small or, sometimes, struggling business in FLSA collective actions and Rule 23 class actions.  I see, time after time, plaintiff lawyers make totally outlandish demands and I explain to them the financial fragility of the employer and that a settlement of “something,” whatever that may be, is better than... More
  • Payroll Audit Independent Determination Program Is a Bust… for an Obvious Reason! When the USDOL self-reporting program was announced, I was highly skeptical. Even though there seemed to be assurances that no undue enforcement actions would be taken, it just did not seem that employers would voluntarily subject themselves to such government review. Evidently, I was right. The USDOL has announced that this voluntary compliance program, the Payroll Audit Independent Determination (“PAID”) has produced a paltry $7 million in wages due employees. The program ostensibly protects employers if they commit inadvertent overtime and... More
  • USDOL Issues Interesting Opinion Letter on Car Manufacturer Incentive Payments Use in Meeting Minimum Wage Requirements The USDOL has been issuing a slew of Opinion Letters of late, under the stewardship of Cheryl M. Stanton, Administrator of the Wage and Hour Division. Many of these deal with bonus issues and how these payments can and should be used by employers vis-à-vis their obligations to be compliant with the FLSA. The agency has issued a new Opinion Letter on the issue of car dealerships using incentive payments from automobile manufacturers to satisfy their minimum wage obligations to... More