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

  • The New Jersey Unemployment Law’s ABC Test: Alphabet Soup Tough for Employers to Swallow (or Beat) The test for independent contractor is often a tough one to meet.  Especially in New Jersey which has (as do many other States), the famous (or infamous) A-B-C test.  The courts also support this test as is again evidenced by the NJ Supreme Court’s refusal to take a case challenging a ruling under that test.  That ruling found exotic dancers (i.e. strippers) to be employees under the state Unemployment Insurance law.  The case is entitled Dance Inc. v. New Jersey... More
  • Differing Views on New Salary Level for Exempt Status Set By USDOL: No Surprises Here Now that the USDOL has established $35,000 per year as the new threshold for exempt status, several groups have already taken shots at that new salary level. The deadline for comments has ended and we will see what happens. However, worker advocate groups have assailed the rule and urged the agency to revert back to the Obama level of approximately $47,000. On the other hand, some small business owners decry this new level, asserting it will cause them difficulty for... More
  • No OT for Hourly Paid Nurses in Offbeat Texas Lawsuit This is a very interesting case.  A group of nurses at a Texas hospital claimed they their employer intended to pay them an annual salary rather than an hourly rate and thus they were owed no back wages.  They won in the lower court and appellate court but, now, the Texas Supreme Court has reversed, finding that there was insufficient evidence to substantiate that allegation.  The case is entitled McAllen Hospitals LP et al. v. Lopez and issued from the... More
  • Another Automatic Lunch Deduction FLSA Collective Action: How Many Times Does It Have to Happen? I have blogged numerous times about these automatic lunch deduction cases and have suggested remedies.  Yet, these cases proliferate.  Another very recent example is that of a hospital that has agreed to pay more than $4,000,000 to settle a FLSA collective action where the workers allege that their employer violated the Fair Labor Standards Act by automatically deducting a thirty-minute lunch break, every day, whether or not the employees allegedly worked through lunch.  The case is entitled Small et al.... More
  • USDOL Opinion Letter Takes Expansive View Of Independent Contractor Status The issue of independent contractor is in the forefront of today’s legal scene, on numerous fronts.  There is also an issue with changing technology and its impact on these thorny issues. Now, the USDOL has issued an Opinion Letter addressing this issue as concerns the so-called gig economy.  The Opinion Letter focuses on individuals who work for a gig economy platform that links up service providers with clients; the Opinion Letter concludes that they are independent contractors. The Opinion Letter used... More
  • The Good Faith Defense as a Complete Bar to Wage Claims? Yes, It Is! When the Department of Labor, whether USDOL or a state agency, issues an Opinion Letter on a certain topic/issue or follows a consistent course of conduct vis-à-vis a particular employer, that employer is allowed to rely on that letter or administrative practice or enforcement policy.  The Opinion Letter or consistent practice then acts as a bar against a lawsuit or claims that the employer owes overtime or owes the employee(s) other monies. The so-called “good faith defense” provides that an employer’s... More
  • The USDOL And The Joint Employer Doctrine: The Saga Continues The USDOL has proposed a new cut-down (watered down?) test for determining when entities are a joint employer.  Such a finding leads to the aggregating of employee hours which are worked at both places as well as rendering the entities jointly liable for wage-hour (e.g. overtime) violations. The focus of the new proposal is a four-factor test to determine whether two (or more) businesses qualify as a joint employer: The power to hire and fire, the ability to control work schedules;... More
  • New DOL Proposed Rule Will Affect What Is included (or Not) in Regular Rate for Overtime Calculation Even the most well-intentioned employer who wants to comply with the FLSA will have trouble, as there are many gray, nuanced provisions and regulations in this law, especially on overtime computation.  One of these is the requirement to include non-discretionary bonuses in the overtime calculation of non-exempt workers.  That may now be changing as the USDOL has issued a notice of proposed rulemaking, one proposal of which states that employers do not have to include these bonuses or other quasi-monetary... More
  • Employers Must Be Aware of “Sneaky” Working Time FLSA Collective Action Cases I continue to blog about working time cases because these are the kind of lawsuits that can sneak up on an employer who does not realize that a certain pre-shift activity may in fact constitute working time under the Fair Labor Standards Act.  This is again illustrated by a trucking company case where the Company will pay $3.8 million dollars to settle a FLSA collective action alleging non-payment for orientation and training time.  The case is entitled Cormier et al.... More
  • Court Refuses To Award Liquidated Damages in FLSA Collective Action Even After Finding Employer Did Not Pay Proper Overtime What scares me the most about a USDOL audit or a FLSA lawsuit is the threat of liquidated damages. These damages, which double the wages due, are imposed almost routinely in court cases and are being imposed more and more by the administrative agency.  Well, sometimes the pendulum swings the other way, as illustrated by a recent case.  Although the Sixth Circuit affirmed the fact that the employer did not pay overtime properly, it denied the government’s request for liquidated... More