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

  • USDOL States It Will No Longer Routinely Seek Liquidated Damages in Administrative Investigations: A Return to Normalcy The last several years have been quite worrisome to me, as a management side practitioner, on the issue of USDOL agency-initiated liquidated damages assessments. It used to be that only when the USDOL took an entity to court did it seek liquidated damages. Then, some years ago, during the Obama Administration, the agency began seeking liquidated (i.e. double) damages. This was a big hammer for the agency and one that it utilized in almost a routine manner. Well, things have... More
  • The FLSA and Temperature Checks: The Doctrine of “Integral and Indispensable” Comes to the Forefront The other day I went to the eye doctor and, before I could go in, an employee checked my temperature. This phenomenon is going to become perhaps a constant fact of life when businesses open, employees return to work and employers want to be sure that they are virus-free and the workplace is safe. That is all well and good but, for employers, the issue arises of whether submitting to such a check is compensable time. That is an uncertain... More
  • FLSA Settlement Principles Illustrated by Recent Case: A Primer on What Is Appropriate When FLSA lawsuits are settled, the matter must go before a federal judge for approval, as opposed to when a “demand letter” is sent and the parties settle prior to suit. There are many elements that a court must look at to determine if the settlement is appropriate and the recent case of Fritz v Terminite, Inc. provides a clear application of those principles. The case was filed in federal court in the District of New Jersey. The plaintiff was an... More
  • Wave of Wage-Hour Lawsuits Coming? Beware of the Danger Zones I have been writing about wage hour issues that are implicated or raised by the continuing COVID-19 situation. Well, here’s another one. I warn that as businesses start to open up (or not), employees (and, more to the point, plaintiff-side lawyers) will be seeking to sue employers on a number of grounds, some of which rely on circumstances that might have well been beyond the control of their employers. To start with, employers must be aware that they will not... More
  • In Major Move, USDOL Makes It Easier for Employers to Claim the Commission Exemption of 29 USC 207(i)—Outstanding! I have handled many cases involving the so-called commission exemption under the Fair Labor Standards Act, Section 207(i), and I can safely say that often a big stumbling block for the defendant (i.e. employer) is to show that it is in a “retail” industry. Absent that showing, the exemption will not apply, even if the worker earns at least 50% of his weekly compensation from commission and his hourly earnings are at least time and one-half of the minimum wage.... More
  • Defeat of Restaurant FLSA Actions for Lack of Credible Evidence Is Encouraging! Many wage-hour/overtime actions are brought against restaurants; this is, and has been for some time, a disturbing pattern. Coupled with this trend is the fact that it seems that this industry has certain “customs” on paying workers that give plaintiffs a seeming leg up in these actions. So, it warms my heart when these suits are dismissed for lack of credible evidence and an appellate court affirms that dismissal. The Second Circuit has just done this in cases involving suits... More
  • Many Wage and Hour Issues Arise in Return-to-Work Scenarios From COVID-19 We are seeing states start to re-open and businesses start to come back to life and bring their employees back. There are many difficult economic issues that surround these developments, not the least of which is the continuing need to comply with the Fair Labor Standards Act (and state wage and hour laws). These issues may depend on industry (and season) but there are certain issues that cut across all of these lines. One issue concerns exempt employees, i.e. those workers... More
  • Another Construction Industry Wage-Hour Lawsuit: The Trend Continues The construction industry has had a long history of wage violations, whether of prevailing wage laws or just “ordinary” wage hour laws. Another example of this trend has emerged in New Jersey where an entity (and its subcontractors) have been sued in federal court in a collective action for alleged failure to pay overtime. The case is entitled Romero et al. v. Allstate Interiors Inc. et al., and was filed in federal court in the District of New Jersey. The plaintiffs... More
  • Organ Procurement Coordinator Found Exempt Under FLSA Highly Compensated Exemption: A Case Study in the HCE I have found a very interesting exemption case involving a rather unique job title that also is very instructive in the interpretation of the Highly Compensated Exemption (“HCE”) under the Part 541 FLSA exemption tests. The case involved an employee whose title was Organ Procurement Coordinator, who was seeking back due overtime, claiming he was a non-exempt employee. The case is entitled Smith v. Ochsner Health System et al. and issued from the Fifth Circuit Court of Appeals. The Fifth Circuit... More
  • USDOL Issues Opinion Letter on Inclusion of Longevity Bonus in the Regular Rate The USDOL has been quite busy lately in issuing regulations and other guidance relating to the provisions in the Families First Coronavirus Response Act. With that said, the “regular” business of the agency continues as best as it can. One of these functions is the issuance of Opinion Letters which, as I have written about numerous times, provide important guidance for employers on how they may comply with the myriad wage hour laws. The agency has issued Letters regarding my... More