Employer Law Report

Tag Archives: wage & hour

New Secretary of Labor sworn in

Much has been written recently about the first 100 days of the Trump Administration. Some would argue that little of significance has changed in the employment regulation world. But, the confirmation on April 27, 2017 of new Secretary of Labor R. Alexander Acosta squeaked through the door just before the first 100 days concluded and it could be an initial step towards the sort of employment regulation reform that many in the business community have been expecting.

Secretary Acosta will lead the Department of Labor (DOL), the cabinet department responsible for, among other agencies, the federal Wage and Hour Division …

Minimum wage exemptions upheld in Ohio Supreme Court case

A divided Ohio Supreme Court held that Ohio’s minimum wage law exempts employees engaged in an executive, administrative or professional capacity, or as outside salespersons, summer camp employees, fishing employees, small publication employees and family farm employees. In Haight v. Minchak, No. 2016-Ohio-1053, two sales representatives challenged the constitutionality of Ohio’s minimum wage statute (R.C. 4111.14)—arguing that the definition of employee in R.C. 4111.14(B)(1) conflicts with the definition in the Ohio Constitution. The Court held that the definitions did not conflict.

John Haight and Christopher Pence were sales representatives for Cheap Escape Company. They were paid by commissions plus …

Assistant managers’ wage hour battle with Bob Evans Farms settled for $16.5 million

It is not news that class action lawsuits for unpaid overtime are on the rise. A settlement agreement approved recently by the United States District Court for the Southern District of Ohio shows just how costly those claims can be.

In Thorn v. Bob Evans Farms, Inc. the U.S. District Court in Columbus, Ohio approved a settlement between Bob Evans Farms, Inc. (BEF) and a class of 1,566 current and former assistant restaurant managers. The assistant managers had been treated by BEF as exempt from overtime requirements under federal and state law. In the class action lawsuit, the assistant managers …

Supreme Court interprets meaning of “changing clothes” under FLSA collective bargaining exception

The Supreme Court recently clarified the meaning of “changing clothes” under Section 203(o) of the Fair Labor Standards Act in Sandifer v. United States Steel.  In general, non-exempt employees who spend time “donning” (putting on) and “doffing” (taking off) certain articles of clothing associated with their job must be compensated for that time. Section 203(o) provides an exception to this requirement in the context of collective bargaining—if an employer and the employees’ union agree that employees will not be paid for time spent “changing clothes,” the employer does not have to compensate for that time.

In a unanimous decision, …

When Managers and Social Media Collide: Court Finds That Blog and Drunken Facebook Posts By Coyote Ugly’s Managers Do Not Amount to Adverse Actions or are Enough for Constructive Discharge Claim

Stewart v. CUS Nashville, LLC, No. 3:11-cv-0342, 2013 U.S. Dist. LEXIS 16035 (M.D. Tenn. Aug. 8, 2013) serves as a cautionary tale to employers about the disastrous impact that can happen when managers and social media collide. And while this case turned out well for the employer in the end, that end was after a long and expensive two-day bench trial that I am sure the employer would have much rather avoided.

If you are not familiar with the Stewart case, here is the background you need to know. CUS Nashville, LLC owns Coyote Ugly franchises. (Yes, the …

Sixth Circuit Holds Six-Month Limit in Employment Agreement Is A Waiver and Cannot Be Used to Bar FLSA and EPA Claims. Wait, EPA Claims Too! What? Why?

The Sixth Circuit held that a six-month time limitation in an employment agreement constitutes an invalid waiver of an employee’s claims brought under the Fair Labor Standards Act (“FLSA”) and, more surprisingly, the Equal Pay Act (“EPA”).

In Boaz v. FedEx Customer Information Services, Inc. No. 12-5319 (6th Cir. Aug. 6, 2013), the plaintiff, Margaret Boaz, was employed with FedEx since 1997. Her employment agreement with FedEx (the “Agreement”) included the following provision: “To the extent the law allows an employee to bring legal action against Federal Express Corporation, I agree to bring that complaint within the time prescribed by …

Court Denies Employer’s Access to Social Media Posts in FLSA Collective Action and Sends Warning: If You Want Access to Social Media, Come with Both Barrels Loaded … Leave the Water Gun at Home

A federal court has denied a defendant-employer’s request that plaintiffs sift through and turn over all their social media posts made during their work hours in an FLSA collective action in which the plaintiffs claim their employer failed to give them meal breaks. How did that happen? I thought you’d never ask.

By way of background, Jewell v. Aaron’s Inc., is a nationwide,1,700+ FLSA collective action pending in the Northern District of Georgia. In the suit (Complaint accessible here), the class plaintiffs (current and former employees of Aaron’s) claim they were not paid for their 30-minute meal periods. …

Genesis: A Unicorn, or the Beginning of a New Tactic? Supreme Court Holds Employers Can “Pick Off” a Named Plaintiff and Defeat a FLSA Collective Action with an offer of Judgment, but Leaves Open If All Employers Can Employ This Strategy

By a tight five-to-four decision, the United States Supreme Court’s Genesis Health Care Corp. v. Symczyk decision provides employers a method to "pick off" the lead plaintiff in an FLSA collective action using a Federal Rule of Civil Procedure 68 offer of judgment and by doing so, take out the remaining collective action. For reasons we will explain in a bit, however, the Court merely "assumed" — without deciding — that an unaccepted Rule 68 offer of judgment that offers complete relief moots the named plaintiff’s individual claim and, in the absence of any other claimant having opted into the …

Defending an FLSA Auto-Deduct Policy Case Starts with the Foundation — Another Smart Employer with Smart Policies Sends Another Group of Nationwide Plaintiffs Packing

The Northern District of Ohio is the latest in a long line of courts to send the following message to nationwide collective class plaintiffs: Stop seeking nationwide class certification where the plaintiffs are spread across facilities and have too many factual differences to be "similarly situated" and to have experienced a common injury under the Fair Labor Standards Act ("FLSA").

In Creely v. HCR ManorCare, Inc. (N.D. Ohio Jan. 31, 2013), a group of 318 nurses, licensed practical nurses, certified nursing assistants, and admissions coordinators opted into a collective action lawsuit alleging that their employer, HCR ManorCare, Inc. ("HCR"), …

Stick a Fork in It: Supreme Court Declines Review and Allows Fifth Circuit’s Ruling Approving Private Settlements in FLSA Cases to Stand

We have kept you up to speed on Martin v. Spring Break ’83 Productions, L.L.C., here and then here, a Fifth Circuit case in which the Fifth Circuit approved a private settlement of employees’ claims for unpaid overtime under the Fair Labor Standards Act ("FLSA"). More specifically, the court held that parties could privately settle and release wage claims, under the right circumstances, and that doing so would not compromise employee rights guaranteed by the FLSA. The plaintiffs asked the Supreme Court to review the case arguing that the decision creates a split among the circuits, which it does. …

A Helpful Trend? Employees’ Failure to Follow Timekeeping Procedures Doom Two Recent FLSA Claims

It’s no secret that employers face an uphill battle when defending claims of unpaid hours worked by employees. These claims usually involve a similar pattern: the employee fails to report or record time worked, then the employee later raises that unpaid time worked in the form of a Fair Labor Standards Act claim for unpaid overtime against his employer. Many courts side with employees because the Fair Labor Standards Act places the burden upon employers, not employees, to accurately record time worked. But two recent federal appellate court decisions show that things may not be so grim when employers have …

‘Tis the Season For Holiday Workplace Issues – Download our Holiday eBook with FMLA Stocking Stuffer – “Three FMLA Holiday Stocking Stuffers: How to Avoid a Big Lump of Coal”

We hope you enjoyed our five-part series last week addressing the Top 5 Holiday Headaches for Employers. Due to popular demand, we have compiled this series into an eBook for you and have added a special bonus:

Three FMLA Stocking Stuffers: How to Avoid a
Big Lump of Coal

We couldn’t do a holiday-blog series and NOT include something about every employer’s favorite holiday topic. Like fruitcake, it is a gift that nobody really wants or knows what do with… the FMLA.

Here we tackle three prickly FMLA-holiday questions. First, do holidays count against an employee’s FLMA leave entitlement? Second, …

‘Tis the Season for Holiday Workplace Issues. Day 4 – Holiday Pay and How Not to Get Scrooged by the FLSA

Many employees believe they are entitled to holiday pay, even if they do not work on the holiday. This is not the case. In fact, neither the Fair Labor Standards Act (“FLSA”) nor most state laws, including Ohio, require a private employer to pay hourly employees for not working on holidays (federal or otherwise).

Holiday pay is typically considered a fringe benefit and is a matter of agreement between an employer and an employee (or the employee’s union representative). However, please note that this does not apply to salaried, exempt employees who get paid for holidays, even ones they do …

Sixth Circuit Awards Employer Over $55,000 in Costs in FLSA Collective Action

In September, we told you about the Sixth Circuit’s decision in Frye v. Baptist Memorial Hospital, Inc., where the court handed down, not one, but two favorable rulings for employers in an FLSA collective action. First, the court held that automatic pay deduction policies for unpaid meal breaks do not per se violate the FLSA, and that a class representative plaintiff in a collective action must formally opt-in to their own case to "commence" suit and stop the running of the statute of limitations or be barred from suit. Here’s that blog.

After considering the employer’s motion for …

Martin v. Spring Break ’83 Productions, LLC … the Sequel or Part Deux? The Supreme Court is Asked to Review Whether a Private Settlement Agreement Dismissing FLSA Claims is Enforceable

As you might recall, in August we blogged on Martin v. Spring Break ’83 Productions, LLC, a case involving the blockbuster movie "Spring Break ’83" [stated with sarcasm], where the Fifth Circuit became the first federal appellate court to enforce a private FLSA settlement. In that blog, available here, we crossed our fingers and hoped the Fifth Circuit’s decision would come to a jurisdiction near you. Well, that hope is one step closer to reality as the plaintiffs/appellants – now the Petitioners – filed a Petition for Writ of Certiorari (the "Petition") and asked the United States Supreme …

What Ohio Employers Need to Know About Employees Taking Time Off to Vote

Election Day will soon be upon us, and with that comes some common questions from employers about what they must do regarding employees who take off work or arrive late to work to vote.

What is an Employer Prohibited from Doing? Ohio Revised Code §3599.06 prohibits employers from discharging or threatening to discharge an employee for taking a “reasonable amount of time to vote.” The law further prohibits employers from inflicting or threatening to inflict any injury, harm, or loss against an employee to induce an employee to vote or refrain from voting for or against any person, issue or …

Minimum Wage for Ohio Employers Increases January 1, 2013

As we begin the final quarter of 2012, employers are reminded that effective January 1, 2013, Ohio’s minimum wage rate will increase by $.15 cents per hour, from $7.70 to $7.85 for non-tipped employees and by $.08 cents per hour, from $3.85 per hour to $3.93 per hour, excluding tips. The increased minimum wage applies to Ohio employers with annual gross receipts exceeding $288,000 per year, which is up from last year’s $283,000 threshold.

Exclusions from the Ohio Minimum Wage Law
Ohio employers with 2012 annual gross receipts less than $288,000 are excluded from Ohio’s minimum wage requirements; however, they …

The Sixth Circuit Gives Employers a “Twofer”: An Employer’s Automatic Pay Deduction Policy Does Not Automatically Violate the FLSA and a Class Plaintiff Must “Commence” Suit

In Frye v. Baptist Memorial Hospital, Inc., the United States District Court for the Sixth Circuit handed down not one, but two favorable rulings for employers in an FLSA collective action. First, in considering an automatic pay deduction policy for unpaid meal breaks in a collective action for the first time, the Court held that such a policy does not automatically, or per se, violate the FLSA. Second, a class representative plaintiff must formally opt-in to their own case to "commence" suit and stop the running of the statute of limitations.

1.  The Sixth Circuit Holds that Automatic Pay

Supreme Court finds pharmaceutical sales reps exempt under the outside sales exemption

In a highly anticipated decision under the Fair Labor Standards Act, the United States Supreme Court handed down a big win on Tuesday for the pharmaceutical industry when the Court found pharmaceutical sales representatives are covered by the outside sales exemption in Christopher v. Smith Kline Beecham Corp. We covered in previous posts the differing interpretations of the Second Circuit, which held the reps to be non-exempt, and the Ninth Circuit, which said they were exempt. The Court agreed with the Ninth Circuit that the sales activity pharma sales reps engaged in were sufficient "outside sales" even though federal …

Hiring Unpaid Summer Interns? Keep These Important Tips In Mind

Find an updated post on this topic, published May 7, 2018, here. 

 

Many employers allow students to intern in their workplaces so that the students can gain exposure to real world work, learn about a particular industry or career, or earn credit hours towards their degree requirements. However, if these interns are unpaid, employers risk liability for failure to pay minimum wage and overtime under the Fair Labor Standards Act (FLSA). Employers that enter into these arrangements, often made with the intent of helping students and being good corporate citizens, without careful consideration risk lawsuits from former interns, including …

Department of Labor Begins Enforcing Requirement that Employers Provide Breaks to Nursing Mothers

The Department of Labor has begun enforcing the law passed in March 2010 requiring break time for nursing mothers and has cited 15 employers for violations of the law. We wrote about this law at the time the statute went into effect. While there was little guidance about the law at that time, the Department of Labor has provided a little more direction since then. However, there are still no formal implementing rules for the requirement.

The health care reform law passed in 2010 amended the Fair Labor Standards Act requiring “reasonable” break time for employees who are nursing mothers. …

Supreme Court Denies Review in Fast v. Applebee’s: Tip Credits for Tipped Employees Who Do Non-Tipped Work

Here’s a tip: If you have tipped employees whose job duties involve non-tipped work, check how much of their time they spend doing those non-tipped job duties. If it’s more than 20%, you may owe them minimum wage for the time they spend doing non-tipped work according to an Eighth Circuit decision that the Supreme Court of the United States recently declined to review.

The Fair Labor Standards Act allows for a "tip credit" for "tipped employees," defined as employees who work in an occupation where they customarily and regularly receive more than $30 a month in tips. The tip …

More Rest Time Required for Commercial Motor Vehicle Drivers

The United States Department of Transportation ("Department") has issued an Hours-of-Service ("HOS") Final Rule, that is meant to reduce the excessively long work hours of Commercial Motor Vehicle ("CMV") drivers. The Department wants to ensure drivers have enough time to obtain adequate rest on a daily and weekly basis, because excessive driving hours increase the risk of fatigue-related crashes and long-term health problems for drivers.

The objective of the final rule is to reduce the acute and chronic fatigue of drivers. The effective date of the final rule is February 27, 2012, and the compliance date of selected provisions is …

FLSA Hot Topic: The Fluctuating Workweek and Commission Pay

We’ve noticed some cases recently filed challenging employers’ use of the fluctuating workweek method to determine the overtime compensation for employees who receive commission payments. Plaintiffs are alleging that this practice is not permitted by the Fair Labor Standards Act (FLSA) when employees earn commissions in addition to their salaries. However, this issue is unresolved, and precedent seems to favor the employer defendants.

The fluctuating workweek method is permitted by FLSA regulation 29 C.F.R. § 778.114, promulgated by the Department of Labor to implement the Supreme Court’s holding in Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 580 …

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