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

  • Judge Allows Named Plaintiff Expansive Ability To Communicate with Potential Opt-Ins in FLSA Collective Action When a class action is filed, often times there are issues (for the plaintiff and their counsel) as to who should be in the class. Often, the named plaintiff will seek to reach out to other putative class members, but it is not every day when a Judge orders that the plaintiff may telephone or email these other class members, despite a claim that this would unfairly facilitate the plaintiff’s case. That is what a New Jersey federal judge has... More
  • Decertification of a Class and Rejection of Another Class in the Same Case: The Daily Double! This is an interesting case because it combines the elements of necessary, but not proven, commonality of situation for class certification and a quirky element of overtime calculation based on a unique FLSA provision.  The bottom line is that the two workers who sought a class action on both the federal and state levels lost both because of the need for too much individual scrutiny of worker claims.  The case is entitled Sinclair et al. v. PGA Inc., and was... More
  • Prevailing Wage Law Case Shows Intricacies Of Such Laws: The Apprentice Issue The world of prevailing wage law is a complex and nuanced one. It is, in truth, a niche within a niche of the wage-hour world. I have handled almost one hundred prevailing wage audits and lawsuits and still am learning things about how these laws are interpreted. In an interesting twist, the New York State Court of Appeals has examined the issue of when apprentice wages can (and cannot) be paid on prevailing wage projects. The case is entitled International... More
  • Second Circuit Panel Sharply Questions Lawyers Regarding FLSA Settlements I often settle FLSA actions, as do many other lawyers, defense and plaintiff. It makes sense for both sides, given the costs and uncertainties of litigation and the protracted time it takes for a case to weave its way through the courts. There is now a growing controversy as to the degree that such settlements need to be reviewed by the courts. This dilemma has now found its way to the Second Circuit Court of Appeals in a case that... More
  • Second Circuit’s Review of Position Description Determines Outcome in FLSA Outside Sales Class Action This is an interesting case.  A class action that was denied certification, appealed to the Second Circuit, which reversed because the lower court did not properly interpret the job description on the key issue of duties qualifying for the employer to claim the protection of the Part 541 exemptions.  The employees were salesmen and installation technicians.  Now, they get another shot to prove they are worthy of class status. The case is entitled Sydney et al. v. Time Warner Entertainment-Advance/Newhouse... More
  • Preemption Defense in FLSA Class Actions:  Magic Bullet? Maybe/Maybe Not  When hit with a wage hour suit, class action or single, employers are well advised to look for a preemption argument, whether from a union contract (e.g. National Labor Relations Act) or a statutory construct.  If the preemption argument is successful, the entire suit goes away.  Therefore, such an argument can become the proverbial “magic bullet” that defense practitioners (i.e. myself) yearn for.  The Third Circuit has just ruled that a federal law that confines state regulation of the trucking... More
  • Converting Exempts To Non-Exempts Leave A Window Of Opportunity When an employer realizes that a certain classification or number of employees has been misclassified as exempt, the employer may do the right thing and, henceforth, treat those people as non-exempt and pay overtime accordingly.  That corrective measure, however, leaves a gap because the workers can sue for overtime for the period preceding the change.  That is just what happened in a case where the employer agreed to pay $2.75 million to settle a class action involving inside sales representatives... More
  • Civility In FLSA Litigation—Hard To Come By (Sometimes) I have always approached litigation as seeking to maintain a cordial, civil relationship with my adversary, especially if it is (as happens a lot) my goal to settle the case early on.  There are times, however, I love when it gets nasty.  Especially when I am not involved.  In a recent FLSA class case, a federal magistrate judge was angry at both attorneys.  The court actually granted a motion for sanctions against the employer but observing that both sets of... More
  • FLSA Proposed Class Cut By Judge Who Found Dissimilarities Among Workers Often, when a class of workers petitions for conditional certification in FLSA collective action, and such certification is granted, it usually is for the entire class being asked for.  Sometimes it is not and when that happens, it is “news.”  That has happened in a recent Pennsylvania case where the proposed class was more than two-hundred workers and the certified class was less than forty.  The case is entitled Hunt v. McKesson Corp., and was filed in federal court in... More
  • Will New USDOL Compliance Office Help or Hurt Employers?—Time Will Tell There is an old saying, “I’m from the government and I’m here to help you.” Everybody thinks that is funny as, often, the opposite is true, especially for the employer community. Well, the USDOL is putting a new spin on this maxim by creating an office to (supposedly) help employers in complying with the Fair Labor Standards Act. The new organ, denominated the Office of Compliance Initiatives, will coordinate with other enforcement agencies in an effort to improve compliance with the... More