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

  • Fifth Circuit Issues New Test For Determining Conditional Certification in FLSA Collective Actions: I Am Giddy! I have often lamented how easy it seems for plaintiffs to secure conditional certification in a FLSA collective action.  A few Affidavits, often identical in content, are produced and then, voila, the plaintiff gets conditional certification which then inordinately complicates matters for the employer and makes litigating the case and, of equal import, settling the case, that much harder (and more expensive).  Well, the Fifth Circuit might have just signaled that a change, a new day, is coming on this... More
  • Named Plaintiff in OT Class Action Dooms The Case By Her “Re-Inventing” Her Deposition Testimony: A Cautionary Tale! In class actions there is always a named plaintiff (or two or three, etc).  That person acts as the class representative and is the “flagship” for the entire case.  When that individual does something to jeopardize their status as such a “representative,” the entire case might go away.  That is precisely what happened in a recent class case for alleged unpaid overtime where the named plaintiff contradicted her deposition testimony, tried to change it to better bolster her case and... More
  • The Impact Of Working Remotely And FLSA Compensable Travel Time: Another USDOL Opinion Letter Nugget Lately, there has been a lot of “action” from the USDOL on the thorny and misunderstood issue of travel time.  The agency has just issued another Opinion Letter that addresses the issue of whether employers must pay workers for travel time on days when they spend part of the day working from home and the other half of the day in the office.  The USDOL concluded that payment for such travel time was not warranted. The Opinion Letter takes the (in... More
  • Bah, Humbug! Hospital Hit With Another Of The FLSA Collective Actions On Missed Lunches The health care industry seems to be ground zero for a particular kind of class action lawsuit.  Many of these health care institutions have policies where a thirty-minute lunch period is automatically deducted from the daily scroll of hours.  This is quite understandable, from an operational perspective, as it usually is difficult for employees to go to their time clock, punch out and then back in for lunch.  Although this facilitates operational efficiency, it also leads to allegations that employees... More
  • FLSA Joint Employer Doctrine At Issue In Health Care Industry Overtime Class Action: A Warning To That Industry! In FLSA cases, plaintiff lawyers are always looking for a deep pocket and one of the avenues they use towards this “goal” is the joint employer doctrine.  That doctrine allows more than one employer to be liable for employee damages (e.g. overtime, back wages) if the employers are found to co-determine employee terms and conditions of employment.  In a recent Third Circuit case involving the health care industry, a panel has reversed a lower court ruling that found two entities... More
  • USDOL Issues Travel Time Opinion Letter For Construction Industry-Part II I blogged the other day about a USDOL travel time Opinion Letter for the construction industry and foremen in that industry.  The employer seeking the advice posed three scenarios and wanted answers about the foremen and the laborers that also ride in the trucks.  In this installment, I look at the issue of compensable time for the laborers who work for these foremen. In the first scenario, the job site is near or within the same city as the employer’s main... More
  • USDOL Issues Travel Time Opinion Letter For Construction Industry I have stated many times that I am pleased that the USDOL has taken again to issuing Opinion Letters which guide employers in complying with the Fair Labor Standards Act.  I am particularly happy that the agency has issued an Opinion Letter dealing with travel time issues in the construction industry, as these issues are always popping up and, more importantly, might pose a “hidden” danger to employers (e.g. class action) if travel time that should be compensated is not. ... More
  • USDOL Seeks To Kick Out Private Lawsuit Asserting It Can Do Better For Employees: Can It? Are two lawsuits better than one?  Not for the employer, I can tell you that.  A very interesting case is working its way through the federal courts now, where the US Department of Labor wants to take over a private lawsuit that has been filed alleging Fair Labor Standards Act violations.  The government is contending that its case takes supremacy over the private action.  The case is entitled Blair v. Comprehensive Healthcare Management Services, LLC, and was filed in the... More
  • Medical Interpreters Deemed Employees Not Independent Contractors: The Detrimental Effect Of Non-Compete Agreements! If recent history teaches anything, it is that no industry is immune from attacks on employers who allegedly misclassify workers as independent contractors.  In an offbeat case, this has occurred to a company that utilized medical interpreters.  The case is entitled In Re: Ingrid L. Vega, d/b/a Professional Interpreters of Erie v. Commonwealth of Pennsylvania, Department of Labor and Industry, Office of Unemployment Compensation Tax Services, and was filed in the Commonwealth Court of Pennsylvania The three-judge panel affirmed an administrative... More
  • Bow-Wow: Court Finds Pet Sitters Are Employees, Not Independent Contractors In an off-beat case that revolved around the IRS twenty-factor test for independent contractor, an appellate court in Missouri has affirmed the state Labor Commission ruling that caretakers working for a pet sitting company were statutory employees, rather than independent contractors. The case is entitled 417 Pet Sitting LLC v. Division of Employment Security, and issued from the Missouri Court of Appeals, Western District. The Court affirmed the Missouri Labor and Industrial Relations Commission when it analyzed the twenty factors, found... More