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

  • New Jersey Wage Theft Act Beefs Up Penalties on Employers—A Lot! The State of New Jersey has passed several laws in the wage-hour area that are definitely pro-employee, to say the least.  The latest effort on this front is something quite special, or onerous, depending on which side you are on.  The brand new, effective immediately, New Jersey State Wage Theft Act (WTA) geometrically adds to the existing penalty structure for employers by adding a liquidated damages provision and gives extra protections for employee retaliation claims.  The joint employer provisions have... More
  • New USDOL Secretary Will Be Big Booster of Business: Here Comes Deregulation It seems that with the resignation of Secretary Acosta there is going to be a decidedly more pro-business posture for the agency.  This is because Patrick Pizzella, who will take over, has let it be known that he will be “hitting the gas” according to Paul DeCamp. The business community sought (and expected) a great deal of deregulation emanating from the agency in the wake of the 2016 election.  That did not materialize so quickly.  The first nominee, Andy Puzder, withdrew... More
  • New Jersey Wage Deduction Class Action Revived by Appellate Division: More Independent Contractor Fallout When employers classify individuals as independent contractors, they are not obligated to provide them with certain benefits, as they would statutory employees.  Sometimes, if those individuals are found to not be independent contractors, those “failures” come back oftentimes to haunt the employers.  Another example of this phenomenon has happened in that a New Jersey appellate court has reversed a lower court that found that an employer properly deducted monies from truck driver compensation to pay for workers compensation insurance (as... More
  • Referees Settle Independent Contractor FLSA Action: No “Penalty” for Either Side The issue of whether athletic referees are independent contractors has surfaced a few times in the last few years. Here, in Pennsylvania, the Pennsylvania Interscholastic Athletic Association (the PIAA) that engages these referees has agreed to settle with a group of these individuals for $260,000 to close out a FLSA action, based on misclassification. The case is entitled Ruslavage et al. v. PIAA, and was filed in federal court in the Western District of Pennsylvania. The Judge signed off on the... More
  • New USDOL Wage Hour Administrator Issues Opinion Letter Finding Paralegals Can Be Exempt: A New Day Dawning! New USDOL Wage Hour Administrator Issues Opinion Letter Finding Paralegals Can Be Exempt: A New Day Dawning! Under the Trump Administration, there has been a return to the issuance of Opinion Letters which I have highly applauded.  I also applaud the rather pro-employer stance that many of these Letters have reflected.  Another example of both of these scenarios has just been announced.  The USDOL issued an Opinion Letter finding that highly paid paralegals for a “global trade organization” perform sufficient management-type... More
  • Joint Employer Angle Gives Interesting Twist to FLSA Truck Driver Collective Action The whole trick for a plaintiff (and his lawyers) in a FLSA collective action case is to try to get conditional certification. Once that happens, the stakes automatically escalate for the defendant-employer, often leaving settlement as the most viable and cheapest manner of resolving the case. This process becomes more complicated when there is, as in this case, a possible joint employer scenario. With that said, a federal Judge indicated that she was likely going to conditionally certify a class... More
  • Democrats Now Want White Collar Exemption Salary Level to Be Much Higher I blogged last week about the back and forth on the new USDOL proposed salary threshold for exempt status, at approximately $35,000 per year.  Well, the Democrats have now spoken on the issue and they propose raising the threshold to approximately $51,000 per year.  Another great divide. The proposed law is entitled the Restoring Overtime Pay Act.  It would codify the Obama proposal to establish the salary level at the 40th percentile of wages in the South; this region is (currently)... More
  • 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