Wage & Hour - Developments & Highlights

Latest from Wage & Hour - Developments & Highlights

What do I always say? If an employer is sued in a FLSA action, collective or otherwise, and is unionized, always look for a National Labor Relations Act/Labor Management Relations Act preemption defense.  Well, it has happened again!  A federal judge has dismissed a collective action alleging that a rehabilitation center did not pay nurses their correct overtime.  The Court held that matter required interpretation of the labor contract and thus had to go to…
Now that the new $35,000 per annum overtime rule has been proposed, the commentators have been commenting on the implications.  I have read these with great interest.  For example, Alexander Passantino, former DOL Wage Hour Division chief, stated that “it just struck me as funny that it’s within $5 per week of the exact midpoint between the $23,660 and the $47,476.  It is as close to the middle as you can get without making it…
We have been waiting for the United States Department of Labor to announce its plan for toning down the overtime rule revisions implemented in the last administration, but stayed by federal courts, and to announce its own proposal. Now, that momentous event has happened—the agency announced yesterday it will set the salary threshold at $35,308 per annum.  The new level will go into effect in January 2020.  This amounts to a weekly salary of $679…
There is no industry that is immune to wage hour or FLSA actions, including amateur sports leagues.  In an interesting case, a federal Judge has granted conditional class certification to a class of members of an amateur football league who worked as referees and who were, they claim, compelled to perform the work of refereeing other teams’ games for free.  The case is entitled Ernst et al. v. ZogSports Holdings LLC, and was filed in…
An interesting decision just issued involving an employer who attempted to use a blended compensation system to pay employees overtime.  A federal appellate court ruled, however, that this system did not comply with the Fair Labor Standards Act and allowed a million dollar judgment obtained by the USDOL to stand.  The case is entitled U.S. Department of Labor v. Fire & Safety Investigation Consulting Services LLC, and issued from the Court of Appeals for the…
I often preach that, when dealing with a class action, the employer should try to pick off the named plaintiff, perhaps overpaying to do so (or maybe not).  In this interesting case, the parties settled (i.e. with the named plaintiff) right after the class had been decertified.  The plaintiff had argued that he was misclassified as an independent contractor.  The case is entitled Roberson et al. v. Restaurant Delivery Developers LLC et al., and was…
There has been a good deal of controversy and confusion over whether the recently enacted New Jersey Equal Pay Act was retroactive.  The law became effective July 1, 2018 and has a six year statute of limitations.  Could a lawsuit filed after enactment, say in August 2018, go back to August 2012?  We did not know but it now seems that the answer is a resounding “no.”  This is because a recent federal court decision…
  Employers should always look for a preemption defense when a FLSA suit is lodged against a unionized client.  Clear proof of that was just given by the Ninth Circuit when that Court held that unionized offshore oil rig workers could not pursue overtime claims because the Labor Management Relations Act (LMRA) barred the suit.  The case is entitled Curtis et al. v. Irwin Industries Inc. et al. and issued from the Court of Appeals…
When will employers learn?  They keep classifying retail Store Managers and Assistant Managers as exempt, when these workers are often misclassified, not intentionally, but because the nature of their duties often tends to undermine the primary duty test and render them non-exempt.  Another example is a recent case where Store Managers have been granted conditional certification in their FLSA collective action.  The case is entitled Spack et al. v. Trans World Entertainment Corp. and was…
There is a tripartite test for independent contractor under the New Jersey Unemployment Compensation statute (and many other States), the so-called “ABC” test.  Under this test, services performed by an individual for remuneration shall be deemed to be employment unless it is shown to the satisfaction of the Department of Labor that: (a) Such individual has been and will continue to be free from control or direction over the performance of such service, both under…