Employer Law Report

Tag Archives: wage and hour

Bridge to Increased Wage & Hour Litigation Now Open

In addition to adding 350 new wage-and-hour investigators to its staff, the U.S. Department of Labor recently announced a new collaboration between its Wage-and-Hour Division and the American Bar Association Standing Committee on Lawyer Referral and Information Service that will likely further increase the amount of FLSA and FMLA litigation.  Through this new collaboration, which the DOL has named the "Bridge to Justice," the DOL and ABA are now providing an attorney referral service to individuals who contact the DOL to allege violations of the FLSA or FMLA by their employers.

As explained on this recently released FAQ website, …

DOL Issues Guidelines on New Requirement for Break Time for Nursing Moms

The federal health care reform legislation passed in March of this year included an amendment to the Fair Labor Standards Act (FLSA), requiring employers to provide reasonable unpaid break time to nursing mothers to express breast milk for the nursing child. The requirement to provide breaks extends for one year after the child is born. The DOL has just released a fact sheet with general information about the requirements.

Briefly, the law requires that employers provide "reasonable break time… each time such employee has need to express milk." Employers must provide a private location, free from intrusion, other than a …

DOL Considering Changes to FLSA Recordkeeping Requirements

Yesterday, the Department of Labor published its semiannual agenda of regulations that have been selected for review or development during the coming year. One of the proposed rules would significantly change the FLSA’s recordkeeping requirements. Specifically, as stated in a Wage and Hour Division Fact Sheet, the proposed rule would require “[a]ny employers that seek to exclude workers from the FLSA’s coverage . . . to perform a classification analysis, disclose that analysis to the worker, and retain that analysis to give to WHD enforcement personnel who might request it.” This would obviously be incredibly burdensome for employers.

 

Additionally, the DOL …

DOL Issues a Fact Sheet Regarding Unpaid Internships

Less than a month after the New York Times ran an article on the DOL’s position regarding unpaid internships, the U.S. Department of Labor’s Wage and Hour Division has released a Fact Sheet explaining the test used to determine whether an intern is an employee under the FLSA. Although the test – which is laid out in one of our previous posts – remains unchanged, the Fact Sheet provides information regarding the test’s factors that may be useful to employers trying to discern whether their interns are covered by the FLSA’s overtime and minimum wage provisions.

The first factor is whether …

DOL to Scrutinize Unpaid Internships

As noted in a recent New York Times article, researchers have found that the number of unpaid internships has risen, likely due to employers’ limited ability to provide new paying jobs and students’ willingness to gain increasingly hard-to-come-by experience. However, officials from the Department of Labor have indicated that many unpaid internship arrangements violate federal law. Nancy Leppink, Acting Director of the DOL’s Wage and Hour Division, stated: "If you’re a for-profit employer or you want to pursue an internship with a for-profit employer, there aren’t going to be many circumstances where you can have an internship and not be paid and …

A Provision of The Health Care Reform Bill Requires Employers to Provide Reasonable Breaks for Nursing Mothers

Employers may not realize that the recently signed health care reform law includes a provision which amends the Fair Labor Standards Act to require reasonable unpaid breaks for nursing employees. In addition to the unpaid break time, the amendment to the FLSA (29 U.S.C. § 207(r)(1)) provides that employers must furnish a private location, other than a restroom, which may be used by the employee to express breast milk. Employers with fewer than 50 employees are not subject to these requirements if such requirements would cause an undue hardship on the employer.

This amendment creates some confusion with existing federal law on the …

DOL Wage and Hour Division Changes Its Form of Providing Guidance

The Department of Labor’s Wage and Hour Division has announced that it will no longer release guidance in the form of detailed opinion letters on specific fact situations under the Fair Labor Standards Act and other statutes.  Instead, the Wage and Hour Administrator will issue general interpretations (called "Administrator Interpretations") of wage and hour laws and regulations that will be useful to a more broad range of employers.  The Division believes that "this will be a much more efficient and productive use of resources than attempting to provide definitive opinion letters in response to fact-specific requests submitted by individuals and …

Explosion of FLSA Litigation Should Prompt Employers to Review Their Practices

Recent reports have indicated that the number of FLSA collective actions rose sharply in 2009. Many believe this trend will continue in 2010 as employees gain increased awareness of their rights under wage and hour laws and the plaintiffs’ bar recognizes the potential value of FLSA collective actions.

Indeed, there has been a recent flurry of activity across the country in the area of wage and hour class actions. Assistant managers at Foot Locker Retail Inc. filed a nationwide collective action in the Southern District of California, alleging that the company misclassified them as exempt and failed to pay them overtime wages. Similarly, …

Department of Labor Releases New Wage and Hour Fact Sheet

The federal Department of Labor (DOL) recently issued a new fact sheet entitled “Frequently Asked Questions Regarding Furloughs and Other Reductions in Pay and Hours Worked Issues.”  While the fact sheet contains no new law or interpretation, in these economic times, it is extremely helpful for employers to have the DOL’s prior guidance on these issues consolidated in one sheet. 

The fact sheet is set out in a question-and-answer format that is easy to follow. It addresses the following questions:

  1. If an employer is having trouble meeting payroll, do they need to pay non-exempt employees on the regular payday? Answer: Yes.

A Double Identity Doesn’t Entitle You To Overtime!

We just ran across a wage and hour case out of Texas with a unique twist on the usual overtime claim. Bustamente, an undocumented immigrant, alleged that the El Palenque Mexican Restaurant and Cantina forced him to work under another identity to avoid overtime.  

According to Bustamente, the kitchen manager realized he lacked the documentation to work legally in the country but told him it wouldn’t be a problem if he had some documents. Bustamente began working under his brother’s identity. (He actually brought the case as Jesus Bustamente, the brother– he only confessed that his real name is Cristoforo one week prior …

DOL Issues New Wage and Hour Opinion Letters

On March 6, 2009, the United States Department of Labor (DOL) released two noteworthy wage and hour opinion letters.

The first, Opinion Letter FLSA2009-16, may cause an unnecessary stir in the employer and legal communities. The opinion letter approves an employer’s “compressed work schedule.” Employees work nine hours per day Monday through Thursday and work eight hours on one of the two Fridays during the two-week pay period. The company operates under two alternative workweeks. Under the first option, the workweek begins at 11:31 a.m. on Friday and ends at 11:30 a.m. the following Friday, with the scheduled workday beginning at 7:30 a.m. Under …

Ohio Department of Commerce Issues New Prevailing Wage Guidelines

 The Ohio Department of Commerce recently released new prevailing wage guidelines.  These guidelines, which became effective on October 15, 2008 and are available at http://com.ohio.gov/laws/,  focus on construction projects supported by both public and private funds.  Essentially, whenever a public entity contributes funding or other direct support (such as public land) to a project, even an otherwise privately-financed project, prevailing wage must be paid to the workers on that project.  The guidelines also state that, for the most part, projects may not be subdivided into a publicly-supported project and a privately-financed project in order to avoid prevailing wage on certain …

Wage and Hour Update: New Opinion Letters from DOL

The United States Department of Labor (DOL) recently released two new opinion letters. Both are employer-friendly.

Opinion Letter FLSA2008-1 addressed whether purchasing agents in a private sector company were properly categorized as exempt administrative employees. Based on the specific context, DOL determined that the employees were exempt from overtime requirements. As a reminder, to meet the criteria for an administrative exemption, the position must: (1) meet the salary basis test; (2) have a “primary duty” of performing office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and (3) include the exercise of …

Court Finds That Immigrant Workers’ Transportation and Visa Expenses Must Be Taken Into Account For Minimum Wage Purposes

A recent wage-and-hour case illustrates the effect payroll deductions can have on minimum wage compliance. In Rivera v. Brickman Group, Ltd., No. 05-1518 (E.D. Pa. Jan. 7, 2008), a company brought Guatemalan and Mexican workers to the United States for seasonal employment under H-2B visas. Although the workers were paid amounts that appeared to be above the minimum wage, the company failed to take into account certain travel expenses and other employment-related costs incurred by the workers – expenses that reduced the workers’ earnings below minimum wage levels.

In particular, the court found that transportation expenses, costs involved in obtaining visas, …

Sixth Circuit Holds That Gas Station Manager Is An Executive Employee Under the FLSA

Adding clarity to an often-litigated area of wage and hour law, the Sixth Circuit recently held that a small store manager was exempt from the FLSA’s overtime requirements despite her performance of non-managerial tasks and close supervision by her district manager. The case – Thomas v. Speedway SuperAmerica, LLC, No. 04-00147 (6th Cir. 2007) – involved a Speedway  gas station and convenience store manager who Speedway claimed was an exempt “executive employee” under the Fair Labor Standards Act. Even though the store manager was the most senior employee at the store, she was supervised by a district manager who visited the store twice …

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