Wage & Hour Litigation Blog

By: Jeff Glaser and Katy Smallwood Seyfarth Synopsis: The Motor Carrier Act exemption to the FLSA (“MCE”) is a powerful defense against overtime claims brought by interstate truck drivers and others involved in the interstate shipment of goods.  Importantly, the exemption is not limited to drivers who cross state lines.  Instead, numerous courts have made clear that the exemption applies to intrastate drivers, so long as the drivers complete one leg of a larger interstate…
By James M. Hlawek, Shireen Wetmore, Gena Usenheimer, and Richard L. Alfred Seyfarth Synopsis: Today the Supreme Court issued a 5-4 decision in the Lamps Plus, Inc. v. Varela class action arbitration case.  The holding and rationale are important to employers because the Court decisively ruled that class arbitration “fundamentally” changes the nature of the “traditional individualized arbitration” envisioned by the Federal Arbitration Act and, for that reason, requires an express agreement…
Co-authored by Alex Passantino and Kevin Young Seyfarth Synopsis: On April 1, 2019, the U.S. DOL announced a proposed rule to clarify joint employment under the FLSA. The rule would establish a four-factor balancing test for joint employer status. It also rejects various factors that have fueled recent litigation, e.g., a worker’s economic dependence on a potential joint employer, the potential employer’s business model, and its unexercised power over the worker. This is the third proposed rule that…
By Alex Passantino Since 2015, we have been following the saga of the salary threshold for the FLSA’s white-collar exemptions (most of them, at least).  In June 2015, the Department of Labor proposed a level of $50,440.  When the final rule was published in May 2016, that level turned out to be $47,476.  In the Fall of 2016, the regulation was enjoined, keeping the required salary level at $23,660.  Then we’ve had an Administration change, a lengthy…
By:  Alexander Passantino On February 28, the Wage & Hour Division sent to the White House Office of Information and Regulatory Affairs its long-awaited regulatory proposal on joint employment.  Not much is known about the proposal, which was described in the Regulatory Agenda as addressing the changes in the workplace in the 60 years since most of 29 CFR 791 was issued.  WHD stated that it was proposing changes “intended to provide clarity to the…
By: John Phillips and Steve Shardonofsky Seyfarth Synopsis:  In a must-read decision and case of first impression at the federal appellate level, the Fifth Circuit Court of Appeals held late last week that a district court may not approve sending notice of an FLSA collective action to employees who had agreed to arbitrate employment claims.  This decision may curtail an alarming tactic in FLSA litigation in which plaintiffs’ counsel use the collective-action conditional certification procedure…
By Kevin M. Young and Renate M. Walker Seyfarth Synopsis: Each year, droves of employers are hauled into court to defend lawsuits in which salaried-exempt employees claim that, because of their job duties, they should have been classified as non-exempt and paid overtime. While a written job description alone cannot defeat such a claim, it will nearly always be one of the primary exhibits in the case. In this post, we offer a few tips…
By Abigail Cahak and Noah Finkel Seyfarth Synopsis: Even though the DOL abandoned its 20% tip credit rule in November 2018, one federal district judge has refused to defer to the agency, opting to defer to the old guidance instead. As employers using the tip credit know full well, an individual employed in dual occupations–one tipped and one not–cannot be paid using the tip credit for hours worked in the non-tipped occupation. FLSA regulations clarify,…
By: Ariel Fenster, Ryan McCoy, Steve Shardonofsky Seyfarth Synopsis: Arbitration of employment claims continues to be a hot topic at the Supreme Court.  In a unanimous 8-0 decision yesterday (Justice Kavanaugh recused), the Supreme Court ruled in New Prime Inc. v. Oliveira that non-employee drivers engaged by a transportation company cannot be forced to arbitrate their wage-hour claims under the Federal Arbitration Act’s (“FAA”) exclusion for transportation workers engaged in foreign or interstate…
By Christopher M. Cascino Seyfarth Synopsis: The DOL issued an opinion letter approving a pay model where an employer in the home health field paid its employees at an hourly rate for time spent with patients without additional hourly pay for time spent by the employees traveling to and from patient homes.  In that same letter, the DOL provided guidance on how that employer should calculate its employees’ overtime rates.  The DOL opinion letter provides…