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

  • 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
  • New DOL Rule Adapts The Law To The Modern Workplace By Eliminating Certain Perks From Regular Rate Calculation Employers always have difficulty knowing what sums should be included in calculation of the regular rate and many employers unwittingly walk themselves into trouble by not knowing the intricacies of FLSA computation. Well, the USDOL is finally doing something about that. The agency just finalized a rule that allows employers to not include the cash value of many traditional “perks,” such as tuition benefits, cash-outs of accrued leave and certain bonuses. The new rule makes it easier for employers to “more... More
  • Fluctuating Work Week Calculation of Back Due Overtime Not Allowed by Pennsylvania Supreme Court I have long been a fan of the fluctuating work week (FWW) method of paying overtime to non-exempt salaried employees.  This computation yields a half-time calculation, i.e. a lower calculation than dividing the salary by forty and then calculating time and one half of that number.  The Pennsylvania Supreme Court has recently held that this computational method does not apply in Pennsylvania.  Thus, employers in that jurisdiction paying non-exempt employees a salary must use the more generous method of overtime... More
  • Another Assistant Manager FLSA Class Action Goes Down—When Will They Ever Learn? I love Assistant Manager class actions because it gives a defense lawyer a “golden” opportunity to defeat class certification by asserting that too much individual scrutiny is required to allow a class action to proceed.  A beautiful example of this is a recent Walmart case where a group of Assistant Managers dropped their misclassification lawsuits, after they were unable to secure class certification.  They did, however, arrive at settlements for themselves.  The case is entitled Swank et al. v. Walmart... More
  • Uber Case Shows How Tough New Jersey Is on Independent Contractor Determinations I have blogged numerous times about the strictness of the New Jersey A-B-C test as applied to possible independent contractors.  The prime example of this is the very recent assessment of Uber for $650,000,000 in back-due unemployment contributions.  This incredibly large assessment, certain to be litigated about for years, is a sign to employers, large, small or otherwise, that the State of New Jersey has declared war against any designation of an individual as an “independent contractor.” Uber will certainly fight... More
  • Say It Ain’t So!—NJ Moves to Tighten Up Already Strangling A-B-C Test for Independent Contractors The New Jersey test for independent contractor status under the unemployment laws is already very tough, the very infamous, A-B-C standard.  That is seemingly not enough for this Administration and Commissioner Asaro-Angelo.  The Senate Labor Committee has just passed Senate Bill 4204 which will revise the last two prongs of this tri-partite test, making it even more difficult for a single individual (e.g. a sole proprietor or LLC) to be found to be an “independent contractor.” The putative employer must prove... More
  • Judge Signals Change on Certification Decision and Then Case Quickly Settles It is fairly easy for a plaintiff to get conditional certification in a FLSA class action case, but that is not the end of the story.  The next step, much harder, is fending off the defendant’s anticipated motion to stop the class from receiving final certification.  It is even more difficult to withstand that defendant’s challenge when the Judge that approved conditional certification indicates getting final certification will be a lot harder.  A recent example of this is an exemption... More
  • Changing Employees From Exempt to Non-Exempt “With the Season” Is Legal! Many industries and businesses are seasonal and I have been often approached with a client question to the effect of whether the client can change the exempt status of workers, depending on the season.  This occurs, for example, in the case of an employee who is the Head Coach of an athletic team for a college, when that particular season is over.  Can the status be changed (and compensation reduced) so as to lower labor costs?  The answer is, under... More
  • New DOL Proposed Rule on Fluctuating Work Week Is a Keeper! I like how the USDOL is moving along with proposals and plans that assist employers in running their businesses, compensating their employees fairly, and, importantly, not running afoul of the Fair Labor Standards Act (FLSA).  The agency has now proposed a rule that would allow employers to use the so-called “fluctuating workweek” formula for overtime computation to account for the bonuses of the workers. The agency has issued a notice of proposed rulemaking on this matter.  If implemented, it would do... More
  • USDOL Raking It in for Underpaid Employees: Is This the Promised Positive Change Towards Business? There has been a lot of talk about how much more pro-business the U.S. Department of Labor was going to be under this Administration.  Well, appearances can be deceiving, as a report has just come out indicating that the agency collected in excess of $322 million last year for workers who did not receive proper overtime or other compensation.  This represents an increase of over $18 million from the year before. The Secretary of Labor observed that “these record-breaking numbers top... More