Thursday, October 19, 2017
When is a break not a break under the FLSA?
The FLSA draws a pretty clear line as to when breaks must be paid, and when they can be unpaid.
If a break 20 minutes or less in duration, it must be paid. Any longer, and an employer can make it an unpaid break.
What if, however, instead of providing employees paid breaks, an employer installs a system of flex time—the employer only pays employees for the time they are logged onto its system, which maximizes employees’ ability to take breaks from work at any time, for any reason, and for any duration.
Does this “flex time” system of unlimited unpaid breaks pass muster under the FLSA?
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Tuesday, September 5, 2017
Is the DOL’s white-collar salary test DOA?
Late last week, a federal judge in Texas struck down the Department of Labor’s attempt to raise the salary test for the Fair Labor Standards Act’s white-collar exemptions from $455 per week to $913 per week.
The court held that because the statute defines the administrative, executive, and professional exemptions based on their duties, any salary test that renders the duties irrelevant to the analysis is invalid. Thus, because the Obama-era $913 salary test could overshadow the exemption’s duties in the execution of the exemptions, the new salary level is invalid.
I founds footnotes 5 and 6 to be very interesting, but I’m not sure the position they advance are intellectually consistent with the bulk of the opinion.
Compare:
This opinion is not making any assessments regarding the general lawfulness of the salary-level test or the Department’s authority to implement such a test. Instead, the Court is evaluating only the salary-level test as amended by the Department’s Final Rule. ... During questioning at the preliminary injunction hearing, the Court suggested it would be permissible if the Department adjusted the 2004 salary level for inflation. [fns. 5 and 6]
-vs-
The Final Rule more than doubles the previous minimum salary level. By raising the salary level in this manner, the Department effectively eliminates a consideration of whether an employee performs “bona fide executive, administrative, or professional capacity” duties. ... Nothing in Section 213(a)(1) allows the Department to make salary rather than an employee’s duties determinative of whether a “bona fide executive, administrative, or professional capacity” employee should be exempt from overtime pay. [opinion]
To me, the only way to read the opinion is that any salary test exceeds the DOL’s authority to implement the EAP exemptions (fns. 5 and 6 notwithstanding). Alternatively, if the only salary test that will pass muster is one that is so low that anyone who meets the duties test also must, de facto, meet the minimum salary threshold (the status quo of $455, adjusted for inflation to $592), why have a salary test at all?
Thus, in the opinion of this blogger, the DOL’s salary test is DOA. Now, let’s wait for the appeal and see what the court of appeals has to say on this issue.
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Thursday, August 31, 2017
BREAKING: federal judge strikes down FLSA white-collar exemption salary test
Ding, dong, the DOL’s salary test for white collar exemptions is dead (sort of).
A Texas federal judge has held that the Department of Labor improperly used a salary-level test to determine which white-collar workers are exempt from overtime compensation.
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Tuesday, August 8, 2017
Avoid “FLSA roshambo” to win off-the-clock overtime claims
Defending claims for off-the-clock work is one of the most difficult tasks employers face under the Fair Labor Standards Act. An employee (or worse, group of employees) says, “I (we) worked, without compensation, before our shift, after our shift, or during our lunch; pay me (us).” Often, these employees have their own personal, detailed logs supporting their claims. And the employer has bupkis. It then must prove a negative (“You weren’t really working when you say you were”), which places the employer in a difficult and often unwinnable position. It’s a wage-and-hour game of rock-paper-scissors, where paper always beats air.
When we last examined Allen v. City of Chicago—a case in which a class of Chicago police officers claimed their employer owed them unpaid overtime for their time spent reading emails off-duty on their smartphones—an Illinois federal court had dismissed the claims, holding that most of the emails were incidental and non-essential to the officers’ work, and, regardless, the employer lacked specific knowledge of non-compensated off-duty work.
Last week—in what is believed to be the first, and only, federal appellate court decision on whether an employer owes non-exempt employees overtime for time spent off-duty reading emails on a smartphone—the 7th Circuit affirmed [pdf].
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Wednesday, August 2, 2017
Is joint employment the issue that unites our divided government?
I cannot recall a time when our government has been more divided across ideological and party lines. (I don’t count the early 1860s, because that’s not a time a can remember.) Thankfully, an issue has come along to build a peace bridge over the streets and through the halls of Washington D.C.
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Tuesday, June 27, 2017
Is this the worst employment law decision of 2017?
I’ll be vacationing in California with my family the first two week of July. After reading the 9th Circuit’s decision in Arias v. Raimondo—holding an employer’s attorney for liable for FLSA retaliation against his client’s employee because the employee sued his client for unpaid overtime—I’m thinking of adding the 9th Circuit to my list of tourist stops in San Francisco to see if courthouse resembles a Salvador Dali painting. Because this decision is flat out bonkers.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, June 8, 2017
DOL pulls Obama-era guidance on joint employment and independent contractors
The past two years have been busy for the Department of Labor’s Wage and Hour Division. One can directly track a large part of its busy workload to its enlargement of who qualifies as an “employer” under the Fair Labor Standards Act. In 2015, the DOL issued guidance re-defining, and broadening the definition of, who qualifies as an “independent contractor”. And, the following year, the DOL did the same with its definition of “joint employer”.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, May 31, 2017
When is a settlement not a settlement? FLSA
When you settle a lawsuit with an employee, you are bargaining for finality. You are paying that employee to resolve all disputes between you, whether asserted or unasserted. You want to be done with that individual forever.
Except that is not always the case.
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Tuesday, May 23, 2017
I still despise the misnamed and overused phrase “wage theft”
Writing at Inc.com, Suzanne Lucas (aka Evil HR Lady) reports on a study published by the Economics Policy Institute, which says that employers short their employees $15 billion in wages per year. According to Suzanne, “Wage theft isn’t always the case of a corrupt boss attempting to take advantage of employees.” She is 100 percent correct. In fact, most instances of an employer not paying an employee all he or she is owed under the law results from our overly complex and anachronistic wage and hour laws, not a malicious skinflint of a boss intentionally stealing from workers.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, April 20, 2017
Working Families Flexibility Act seeks to legalize comp time in lieu of overtime
If you are a private employer, it is 100 percent illegal for you to provide employees comp time in lieu of overtime for hours worked by non-exempt employees over 40 in a work week. If a non-exempt employee works overtime, you must pay them overtime, and you violate the FLSA if you provide comp time in its place.
The Working Families Flexibility Act, introduced earlier this year in Congress, seeks to change this rule.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, April 17, 2017
2nd Circuit provides plan for employers to win misclassification cases
In Saleem v. Corporate Transportation Group (2nd Cir. 4/12/17) [pdf], the 2nd Circuit Court of Appeals considered whether a company properly classified a group of black-car taxi drivers as independent contractors, or whether it should have classified them as employees. In ruling for the company, the court gifted employers a game plan to use when classifying workers to minimize risk in making the key determination of whether a worker is an employee or an independent contractor.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, March 16, 2017
For want of an Oxford comma
Vampire Weekend once asked, “Who gives a f__k about an Oxford comma?” The answer, apparently, is the 1st Circuit Court of Appeals, a whole lot.
In O’Connor v. Oakhurt Dairy [pdf], that court reversed the dismissal of an overtime lawsuit based on the absence of a Oxford comma in a list of activities that qualify for a certain exemption under Maine’s wage-and-hour law.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, March 14, 2017
Inclement weather policies should prioritize safety over productivity
Snow day! Norah went to bed with PJs on backwards last night (and received her wish; now please use your time wisely to work on homework). Donovan is going to be pissed because tonight’s Mathmagic night at school (which he was really looking forward to) will be cancelled. And me? I’m enjoying some flexibility by working from the comfort of my kitchen island. If the storm forecast holds as predicted, however, I'll be giving myself lots of extra travel time tomorrow morning for a court appearance. #lawyerlife
What about your business?
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Thursday, March 9, 2017
The 6th nominee for the “worst employer of 2017” is … the double-booked recordkeeper
Yesterday’s nominee for the Worst Employer of 2017 may not end up as the last employer standing when I tally the votes at year’s end (at least according to some of the comments and tweets I received). Today’s nominee, however, should receive more universal support (or disgust, as the case may be).
How many sets of time and pay records should you keep on your employees? For your sake, I hope your answer is not any number greater than “one”.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, February 22, 2017
“If I could press a button and instantly vaporize one sector of employment law?” (redux)
Nearly six years ago, Walter Olson, writing as his Overlawyered blog, asked the following question:
“If I could press a button and instantly vaporize one sector of employment law…”?This was my answer:
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Monday, February 20, 2017
Paw-ternity leave is a great idea, but please don’t forget about us humans
This is Loula, our vizsla.
BrewDog, a Scottish brewery set to open up in Columbus this Spring, has your answer—paw-ternity leave.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, February 16, 2017
Andy Puzder, Trump’s pick for Secretary of Labor, withdraws
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Wednesday, February 1, 2017
Does the FLSA cover unpaid “gap time”?
What about gap time? “What is gap time,” you ask? It’s employment-law speak for unpaid straight time. Does the FLSA authorize a court to provide a remedy for unpaid straight time (for example, off-the-clock work that does not break the 40-hour weekly threshold)? Or, does the FLSA only authorize back pay for unpaid overtime?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, January 24, 2017
Andrew Puzder’s view of women should disqualify him as Secretary of Labor
“What does one have to do with the other,” you ask? Consider this—
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Monday, January 16, 2017
SCOTUS to review NLRB ban on class-action waivers
One of the biggest issues on the NLRB’s hit list over the past few years has been class-action waivers. In D.R. Horton, a 3-2 majority of the Board held that an arbitration agreement which requires employees to waive their right to collectively pursue employment-related claims in all forums (i.e., by giving up their right to file or join class or collective actions) violates employees’ rights under the National Labor Relations Act to engage in protected concerted activity. This issue is significant, as employers seek to use class-action waivers to combat the plague of wage-and-hour lawsuits.
In the four years since D.R. Horton, the NLRB has invalided hundreds of class-action waivers. On appeal, however, not all federal circuit courts have been kind to D.R. Horton. The 5th Circuit overturned D.R. Horton itself, while other circuits have sided with the NLRB on this important issue.
Now, the Supreme Court is poised to have the final say.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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