On April 5, 2011, the Department of Labor’s Wage and Hour Division (WHD) published new regulations. Among other changes, the WHD raised the maximum federal tip credit from $4.42 an hour to $5.12. That means that, under federal law, an employer can pay a tipped employee $5.12 less than the minimum wage so long as

Yesterday, the U.S. Supreme Court held that an employee’s Fair Labor Standards Act (FLSA) retaliation claim can be based on an oral complaint made by the employee to his employer regarding wages or other issues covered by the Act.

An employee of Saint-Gobain Performance Plastics Corp. complained orally to Company officials about the Company’s timeclocks

Just weeks after the Ninth Circuit created a circuit split by ruling that pharmaceutical sales representatives are exempt under the Fair Labor Standards Act’s outside sales exemption (see our earlier post on that decision), the Supreme Court has declined to hear Novartis Pharmaceutical Corp.’s appeal of a Second Circuit decision reaching the opposite conclusion. As

In August 2008, sales representatives from GlaxoSmithKline PLC filed a class action against the company, claiming they were non-exempt and entitled to overtime pay. They had always been treated as exempt by the company under the FLSA’s outside sales exemption. However, they argued, in part, that their exempt classification was improper because they do not

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 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.
Continue Reading DOL Issues Guidelines on New Requirement for Break Time for Nursing Moms

On Tuesday, May 25, 2010, Representatives Phillips and Driehaus introduced in the Ohio General Assembly a bill that effectively would create a single definition of “employee” for purposes of Ohio workers’ compensation, unemployment compensation, payroll taxes, minimum wage and other purposes. Presently, each statute contains its own test for determining whether an individual is an employee or an independent contractor, often resulting in conflicting results.

If passed, this legislation would create a single seven-factor test for evaluation whether an individual truly is an independent contractor.

For an individual to be an independent contractor under H.B. 523, all of the following factors would have to be met:

  1. The individual has been and continues to be free from control and direction in connection with the performance of the service.
  2. The individual customarily is engaged in an independently established trade, occupation, profession, or business of the same nature of the trade, occupation, profession, or business involved in the service performed.
  3. The individual is a separate and distinct business entity from the entity for which the service is being performed or, if the individual is providing construction services and is a sole proprietorship or partnership, the individual is a legitimate sole proprietorship or a partner in a legitimate partnership.
  4. The individual incurs the main expenses and has continuing or recurring business liabilities related to the service performed.
  5. The individual is liable for breach of contract for failure to complete the service.
  6. An agreement, written or oral, express or implied, exists describing the service to be performed, the payment the individual will receive for performance of the service, and the time frame for completion of the service.
  7. The service performed by the individual is outside of the usual course of business of the employer.

Continue Reading Ohio H.B. 523 Would Unify Definition of Employee, Make it Easier to Find Misclassification

On May 20, 2010, the U.S. Department of Labor Wage and Hour Division published a Final Rule designed to modernize child labor regulations. The Final Rule contains new provisions prohibiting children under 18 from riding on a forklift as a passenger, operating balers, and compactors designed or used for new paper products, and work in establishments

The Employee Misclassification Prevention Act, (S. 3254) introduced Thursday by Senator Sherrod Brown of Ohio, would amend the Fair Labor Standards Act to require companies to keep records of non-employees who work as independent contractors and to provide special penalties for misclassifying those workers.

The Act contains certain recordkeeping provisions that would require employers to keep records reflecting whether each worker is an actual employee or an independent contractor. The Act also would require employers to provide a written notice to all workers who perform labor or services informing them that they have been classified as either an employee or “non-employee,” directing them to a Department of Labor Web site for further information about the rights of employees under the law, and informing them to contact the Department of Labor if they have any questions about whether they have been misclassified. Penalties of $1,100 to $5,000 per worker may be imposed for a violation of the notice or recordkeeping requirements or for misclassifying an employee as a non-employee.


Continue Reading New Bill Targets Worker Misclassification