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

  • Flimsy Affidavit From Named Plaintiff Insufficient to Secure Conditional Certification in FLSA Collective Action: A Case for Sanity! It seems that plaintiffs (and their lawyers) think that all they have to do to get conditional certification is throw up a flimsy Affidavit from the named plaintiff and the Court will hand them conditional certification, like it is giving out candy.  Fortunately, in the District of New Jersey that is not the case, as evidenced by a very recent case.  The case is entitled Ding v. Baumgart Restaurant Inc. and was filed in the District of New Jersey.  Herein,... More
  • USDOL Opinion Letters Drawing Fire From Courts, But I Remain a True Believer As you know, I am a big believer in and proponent of using USDOL Opinion Letters, both in advising clients, understanding the agency’s view, and, more importantly, urging them on courts as good authority for the premise I may be arguing.  Well, the fact that a federal court has just refused to accept the agency’s view on a particular topic (i.e. whether sleeping time in their sleeper berths is working time) indicates that, perhaps, these Opinion Letters might not be... More
  • FLSA Collective Action Defeated in One Fell Swoop by Exemption Defense: Way to Go! I love it when the employer wins an exemption case because the deck is so often stacked against the employer on these kinds of cases. This is especially so when the action is a collective one under the FLSA. In this instance, a RN who was employed as a health insurance claims consultant was found to be exempt as a professional employee because she utilized her specialized knowledge when she performed her duties, even though they were not hands-on patient... More
  • USDOL Opinion Letter on Bonuses Shows the New Vitality of This Important Instructional Tool The USDOL is busy again issuing Opinion Letters and has again turned its focus to the issue of inclusion/exclusion of bonuses into the regular rate for purposes of overtime computation.  These Letters are not binding on courts but they operate to evidence the agency’s position on whatever issue is being addressed so they are extremely valuable to employers and practitioners alike. In the Opinion Letter on bonuses, the agency addressed how employers should calculate employee overtime in a scenario when the... More
  • 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