Category Archives: Fair Labor Standards Act (FLSA)

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California Supreme Court Issues Narrow Holding In De Minimis Case, Leaving Many Issues Unresolved

On July 26, 2018, the California Supreme Court issued its long awaited decision in Troester v. Starbucks Corporation (S234969) on whether California wage and hour law recognizes the de minimis doctrine established by the United States Supreme Court in Anderson v. Mt. Clemens Pottery Co. 328 U.S. 680 (1946) for wage claims arising under federal … Continue Reading

Department of Labor Offers Employers Clarity By Resuming Its Practice of Issuing Opinion Letters

In a welcome departure from its recent practice, the U.S. Department of Labor’s Wage and Hour Division (WHD) recently issued its first new opinion letters in almost ten years. In addition to issuing three new opinion letters earlier this month, on January 5, 2018, WHD reissued seventeen opinion letters previously withdrawn under the Obama administration. … Continue Reading

Uber Drivers’ Class Action Lawsuit Hits Permanent Red Light

Last week, the ridesharing giant, Uber, secured a resounding legal win when a federal judge dismissed a putative class action lawsuit alleging the company violated the Fair Labor Standards Act by failing to pay drivers overtime. The ruling is enormously important, not simply for Uber, but for the growing rideshare technology industry as a whole. … Continue Reading

New Tip Pooling Guidelines For Employers

The recent passage of the Consolidated Appropriations Act of 2018 (“H.R. 1625”), an 878-page omnibus spending bill, significantly changes the rules for tip pooling under the Fair Labor Standards Act (the “FLSA”). While the conditions for taking a tip credit toward federal minimum wage obligations remain essentially unchanged, H.R. 1625 appears to permit the inclusion … Continue Reading

Department of Labor Announces New Payroll Audit Pilot Program

On Tuesday, March 6, 2018, the U.S. Department of Labor (“DOL”) announced its launch of the Payroll Audit Independent Determination (PAID) Program (“PAID” or the “Program”) – aimed at increasing employers’ FLSA compliance and timely payment of back wages to employees. The Program, which will start with a six-month pilot period prior to evaluation and … Continue Reading

Second Circuit Court of Appeals Rules That Hearst Interns Are Not Employees

In a decision issued earlier this month, the Second Circuit Court of Appeals ruled that participants in unpaid internship programs offered by the Hearst Corporation could not be classified as “employees” of Hearst and therefore were not entitled to compensation for their internships under the Fair Labor Standards Act (FLSA). The Second Circuit’s decision in … Continue Reading

Sixth Circuit Provides Clarification On Legality Of Draw-On-Commission Policy

Last month, the Sixth Circuit revived a lawsuit brought under the Fair Labor Standards Act (“FLSA”) alleging that a retailer’s commission policy was unlawful in Stein v. hhgregg, Inc., 2017 U.S. App. LEXIS 19908 (6th Cir. Ohio Oct. 12, 2017). The decision provides support for the legality of taking a draw on an employee’s future … Continue Reading

House Approves Save Local Business Act – Bill To Overturn Controversial Joint Employer Ruling

Yesterday evening, the U.S. House of Representatives passed the “Save Local Business Act” (H.R. 3441 – Bryne), legislation that would amend the National Labor Relations Act and the Fair Labor Standards Act to limit joint employer liability. The bill advanced to the Senate by a 242-181 vote. For more information on the bill, see our … Continue Reading

Committee Approves Save Local Business Act – Redefining Joint Employer Liability

Yesterday, the U.S. House Committee on Education and the Workforce approved the “Save Local Business Act” (H.R. 3441 – Bryne), legislation that would amend the National Labor Relations Act and the Fair Labor Standards Act to limit joint employer liability. The bill was approved by a vote of 23 to 17. The bill currently has … Continue Reading

Save Local Business Act Introduced in the House

The House Education and the Workforce Committee held a joint subcommittee hearing last week to analyze the “Save Local Business Act” (H.R. 3441 – Byrne), a measure that would amend the National Labor Relations Act and the Fair Labor Standards Act to limit joint employer liability. If passed, the Act would reverse the current “Browning-Ferris” … Continue Reading

Federal Court Strikes Down Department of Labor’s Overtime Rule

On August 31, 2017, Judge Amos Mazzant in the United States District Court for the Eastern District of Texas issued an order granting a group of twenty-one states’ and fifty-five business associations’ motion for summary judgment in consolidated cases seeking declaratory and injunctive relief against a May 23, 2016 Department of Labor rule drastically increasing … Continue Reading

The U.S. Department of Labor Rolls Back Obama-Era Guidance on Joint Employers and Independent Contractors

The U.S. Department of Labor (“DOL”) announced today that it was rolling back an Obama-era policy that attempted to increase regulatory oversight of joint employer and contractor businesses. Courts and agencies use the joint employer doctrine to determine whether a business effectively controls the workplace policies of another company, such as a subsidiary or sub-contractor. … Continue Reading

Comp Time for the Private Sector: House Passes “The Working Families Flexibility Act”

On May 2, 2017, the House of Representatives passed H.R. 1180, better known as The Working Families Flexibility Act. The bill proposes to amend the Fair Labor Standards Act (“FLSA”) to permit private sector employees to “bank” overtime hours for later comp time use. For example, an employee working 50 hours in a workweek could, … Continue Reading

Texas Federal Court Blocks New Salary Restrictions for Exempt Employees

On November 22, 2016, a federal court in the Eastern District of Texas issued a preliminary injunction blocking the Department of Labor from enforcing new regulations that would have drastically reduced the number of white collar employees who are exempt from overtime.  The disputed regulations were set to take effect on December 1.… Continue Reading

Seventh Circuit Holds Class Action Waivers are Unlawful and Unenforceable Creating a Circuit Split

On May 26, 2016, in the matter of Lewis v. Epic Systems Corporation, the U.S. Court of Appeals for the Seventh Circuit held that an arbitration agreement, which required employees to submit to individual arbitration for any wage and hour claims against the company, violates the National Labor Relations Act (“NLRA”) and is unenforceable under … Continue Reading

DOL Makes Last-Minute Tweaks to New Overtime Exemption Rules

In March 2014, President Obama signed an executive order directing the Department of Labor to revise its aging rules governing overtime pay for white collar employees.  The Department solicited comments from the public on an earlier draft in July 2015.  Yesterday, the Department of Labor released the final version of the new rules.  The new … Continue Reading

Second Circuit Holds that FLSA Settlements Require Court or Department of Labor Approval

On August 7, 2015, in Dorain Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199 (2d Cir. 2015), the United States Court of Appeals for the Second Circuit held that the Fair Labor Standards Act (“FLSA”) is an “applicable federal statute” within the meaning of Federal Rule of Civil Procedure 41(a)(1)(A)(ii) (“Rule 41”). The practical … Continue Reading

DOL Says Most Independent Contractors Actually Employees

In furtherance of its agenda to extend minimum wage and other wage-hour protections as broadly as possible, on July 15, 2015, the Department of Labor issued a far-reaching interpretive memorandum expressing the DOL’s belief that “most workers [classified as independent contractors] are employees under the FLSA’s broad definitions.”… Continue Reading

60-Day Public Comment Period Commences On Proposed FLSA Overtime Exemption Rule Changes

On Monday, July 6, 2015, in response to a March 2014 executive order signed by President Obama, the Department of Labor (“Department”) published a Notice of Proposed Rulemaking (“NPRM”) that will more than double the minimum salary necessary for a worker to be classified as “exempt” from the Fair Labor Standards Act (“FLSA”) overtime regulations.  … Continue Reading

What is Retaliation in the Second Circuit Under the FLSA?

On April 20, 2015, the United States Court of Appeals for the Second Circuit reversed a long-standing precedent when it held in Greathouse v. JHS Security Inc., that an internal oral complaint could be sufficient to demonstrate protected activity and form the basis for a retaliation claim under the Fair Labor Standards Act (“FLSA”).  While … Continue Reading

U.S. Supreme Court Holds Agency Interpretations Are Not Subject To Notice-and-Comment Rulemaking Requirement

In 2004, the DOL revamped its regulations regarding the Fair Labor Standards Act (FLSA) administrative exemption.  In 2006, the Bush DOL issued an opinion letter finding that mortgage loan officers qualified for the administrative exemption.  In 2010, the Obama DOL withdrew the 2006 opinion letter and issued an Administrator’s Interpretation finding that mortgage loan officers … Continue Reading

The California Supreme Court Holds That Certain Security Guards Must Be Paid to Sleep

On December 31, 2014, the California Supreme Court held in Mendiola v. CPS Security Solutions, Inc. (Case No. S212704) that security guards who work shifts of 24 or more hours under Wage Order 4 must be compensated for their sleep time.  The Court also held that, under the particular facts of the case, the security … Continue Reading
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