wage & hour

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

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 credit allows employers to pay less than minimum wage to tipped employees as long as (1) the tip credit is not greater than 50% of the minimum wage, and (2) the wage plus the tip credit add up to minimum wage.

In Fast v. Applebee’s International (pdf), a class of Applebee’s bartenders and servers who received a tip credit argued that they were owed the full minimum wage for the time they spent doing non-tip-producing work, like cleaning, taking inventory, and rolling silverware. According to a DOL handbook interpreting the DOL’s dual job regulations, if tipped employees spend more than 20% of their time doing non-tipped "general preparation and maintenance" work, then the employer owes the employees minimum wage for that non-tip-producing time and cannot take the tip credit. Applebee’s took a tip credit for the workers’ entire shift and did not pay minimum wage for the time servers and bartenders performed non-tipped work (although with the tip credit, the employees still received at least minimum wage for all time worked).Continue Reading Supreme Court Denies Review in Fast v. Applebee’s: Tip Credits for Tipped Employees Who Do Non-Tipped Work

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.
Continue Reading FLSA Hot Topic: The Fluctuating Workweek and Commission Pay

Ohio employers with multi-state operations will want to know that several states and local governments have recently considered or enacted “wage theft” legislation to include the criminal and increased civil penalties and fines for employers who underpay their workers. The inclusion of notice requirements in California and New York create additional consequences for the unwary employer.
Continue Reading The New Year Brings New Notice Requirements for Employers in California

Employers are closer to a nation-wide rule on the appropriate classification of pharmaceutical sales representatives (PSRs). On Monday, the Supreme Court granted cert to resolve a split between the Ninth and Second Circuits on whether PSRs are covered by the outside sales exemption of the Fair Labor Standards Act (FLSA).
Continue Reading Supreme Court to Decide Whether Pharmaceutical Sales Reps Fall within FLSA Outside Sales Exemption

The Internal Revenue Service (IRS) has developed a new program called the Voluntary Classification Settlement Program (VCSP) that permits taxpayers to voluntarily reclassify workers as employees for federal employment tax purposes.
Continue Reading IRS Offers Amnesty for Independent Contractor Misclassification, But Do Disadvantages Outweigh Advantages?

In wage and hour cases, the number of hours employees have worked is usually a primary issue.  When employees are misclassified as exempt, employers are often in a bind because they have not tracked the employees’ time and are unable to refute the claims made by the employees as to how much time they worked.  Even in cases in which employees are classified as nonexempt, employees frequently claim to have worked more than 40 hours per week without being paid overtime.  In either situation, it is often the case that employees have not kept contemporaneous time records themselves either.
 Continue Reading Employers Beware – DOL Unveils Smartphone Timekeeper App