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

  • FLSA Telecommuting Issues Can Lead to Abuse: Employers Beware! I am getting deluged with inquiries from clients, some very agitated, about what they should do, or can do, vis-à-vis their non-exempt work forces and how these folks can be properly paid, but at the same time remain compliant with the Fair Labor Standards Act. As a basic premise, employees must receive at least the applicable minimum wage (in whatever State the employee works) for all hours worked and then must receive overtime for all hours exceeding forty (40) in... More
  • Staffing Company Cannot Avoid FLSA Liability For Doctored Time Records by Blaming Its Agent What gets a lot of employers into trouble is the failure to keep accurate records. Or worse, the actual falsification of records or knowingly keeping and maintaining inaccurate records. Nothing will cause the DOL to come down harder on an employer and for the courts to back up the agency. A recent example of this is a case where the employer tried to put all of the blame on an allegedly low level employee and avoid liability for this fairly... More
  • Labor Contract Preemption Defense Cannot Kill Wage Suit Because No Interpretation of Contract Required I have often blogged about the need for defense lawyers to look for a labor law preemption defense when a wage hour action, single or FLSA collective action is lodged.  If the preemption argument succeeds, it is a magic bullet that makes the case totally go away.  There has to be, however, some direct connection between the wage claim made and the labor contract.  That is often easier said than done, as a recent California case shows where the Judge... More
  • Independent Contractor Battles Fought on Many Fronts, Though Same Issue Persists The significance of the issue of independent contractor cannot be underestimated these days and this battle is being waged on any number of fronts, including when an entity may or may not enter a litigation as an intervener.  In a recent case, a New Jersey real estate trade association has been denied to enter an independent contractor class action lawsuit because it cannot supposedly show the ultimate decision in the case will impact the entire real estate industry.  The case... More
  • Flushed Down the Toilet: Porta Potty Company Settles FLSA Overtime Collective Action Employers often do not like to pay overtime, although they must, and they sometimes come up with creative arrangements not to do so.  That is fine, until an employee, often one who has been fired, files a lawsuit. Then, the company must resolve the lawsuit and fix the “problem” going forward.  A recent example of this model just occurred involving a portable toilet company, involving almost 1,300 toilet technicians. The case is entitled Vargas v. Howard and was filed in... More
  • Flimsy Affidavit From Named Plaintiff Insufficient to Secure Conditional Certification in FLSA Collective Action: A Case for Sanity! It seems that plaintiffs (and their lawyers) think that all they have to do to get conditional certification is throw up a flimsy Affidavit from the named plaintiff and the Court will hand them conditional certification, like it is giving out candy.  Fortunately, in the District of New Jersey that is not the case, as evidenced by a very recent case.  The case is entitled Ding v. Baumgart Restaurant Inc. and was filed in the District of New Jersey.  Herein,... More
  • USDOL Opinion Letters Drawing Fire From Courts, But I Remain a True Believer As you know, I am a big believer in and proponent of using USDOL Opinion Letters, both in advising clients, understanding the agency’s view, and, more importantly, urging them on courts as good authority for the premise I may be arguing.  Well, the fact that a federal court has just refused to accept the agency’s view on a particular topic (i.e. whether sleeping time in their sleeper berths is working time) indicates that, perhaps, these Opinion Letters might not be... More
  • FLSA Collective Action Defeated in One Fell Swoop by Exemption Defense: Way to Go! I love it when the employer wins an exemption case because the deck is so often stacked against the employer on these kinds of cases. This is especially so when the action is a collective one under the FLSA. In this instance, a RN who was employed as a health insurance claims consultant was found to be exempt as a professional employee because she utilized her specialized knowledge when she performed her duties, even though they were not hands-on patient... More
  • USDOL Opinion Letter on Bonuses Shows the New Vitality of This Important Instructional Tool The USDOL is busy again issuing Opinion Letters and has again turned its focus to the issue of inclusion/exclusion of bonuses into the regular rate for purposes of overtime computation.  These Letters are not binding on courts but they operate to evidence the agency’s position on whatever issue is being addressed so they are extremely valuable to employers and practitioners alike. In the Opinion Letter on bonuses, the agency addressed how employers should calculate employee overtime in a scenario when the... More
  • Another FLSA Misclassification Case in the Energy Industry: A Continuing (and Troubling) Phenomenon There have been a host of wage hour cases in the energy industry and I have often commented upon these.  Many concern misclassification issues and another example of this phenomenon has arisen where a class of pipeline inspectors has requested that a federal court approve a settlement amounting to more than $2,000,000 where the theory of the plaintiffs was that the employer misclassified the workers as exempt under the Fair Labor Standards Act.  The case is entitled Ganci v. MBF... More