Tuesday, September 25, 2018
Don't ignore state law when considering wage-and-hour issues
In Integrity Staffing Solutions v. Busk, the U.S. Supreme Court held the employees of an Amazon fulfillment center were not entitled to be paid under the FLSA for time spent waiting in line for a post-shift security screening.
And yet, last week, in parallel litigation under Nevada state law, the 6th Circuit Court of Appeals just held that time spent undergoing mandatory security checks is compensable under Nevada law, reversing a contrary lower court ruling.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, September 6, 2018
Compliance-by-carrot trumps compliance-by-stick
Democratic administrations are about enforcement.
Republican administrations are about education.
The endgame is still enforcement, but each side approaches this goal very differently.
This dichotomy might be an oversimplification, but, in at least in contrasting the Obama Administration to the Trump Administration, it is very true.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, September 5, 2018
The FLSA's exemptions are becoming more "fair" for employers
In Encino Motorcars, LLC v. Navarro, the Supreme Court ruled that overtime exemptions under the Fair Labor Standards Act "are to be given a 'fair reading,' meaning they are not to be construed too narrowly" (as had historically been the case).
The Court applied this "fair reading" standard to conclude that automobile service advisors are exempt under the FLSA's automobile-service exemption.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, June 12, 2018
The legality of pre-certification communications with potential class members
Your nightmare as an employer has just become your reality.
A disgruntled former employee has launched a wage and hour class action lawsuit against you.
You’d like to get out ahead of the game by having your lawyers start marshaling your evidence. For example, they’d like to interview employees and gather affidavits in opposition to the eventual motion for class certification.
But can they?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, May 22, 2018
SCOTUS decision on class action waivers is not the epic win for employers it may seem to be
Yesterday, in a narrow, 5-4 partisan decision, the Supreme Court issued its most anticipated employment decision of its current term, Epic Sys. Corp. v. Lewis [pdf]. The Court reconciled six years of debate between split federal circuits into a unified standard that permits the waiver of class actions via the compelled individual arbitration of employment disputes.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, April 18, 2018
Apparently God is in the restaurant business, at least according to the 6th Circuit
Photo by chuttersnap on Unsplash |
The DOL’s allegations are pretty offensive. Not only did it claim that all of the restaurant’s employees worked for free, it also claimed that the ministry coerced church members into volunteering, telling them they “had an obligation to provide their labor to the Buffet, in service to God, and that a failure to offer their labor to the Buffet … would be the same as failing God;” that Angley “was God’s prophet, and saying ‘no’ to Angley would be tantamount to saying ‘no’ directly to God,” and “‘blaspheming against the Holy Ghost.’”
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, April 17, 2018
I abhor the term “wage theft,” and you should too
Photo by Thirteen .J on Unsplash |
Some business advocates argue with the very term “wage theft.” Jon Hyman, a local lawyer who represents employers, says not every employer cited for wage theft has willingly denied rightful wages.”To me, wage theft is a loaded term,” he said. “It presumes an intent to steal.”
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, April 16, 2018
Must you pay employees for FMLA-related breaks during the work day?
Photo by Liam Stahnke on Unsplash |
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, April 3, 2018
Supreme Court puts the breaks on the narrow constructions of FLSA exemptions
Photo by Coolcaesar (Own work), via Wikimedia Commons |
The exemption applies to “salesmen … primarily engaged in … servicing automobiles.” The majority broadly defined these terms to hold that the plaintiffs were exempt.
And while this aspect of the decision is interesting to automobile repair shops and car dealerships, it's the opinion’s broader implications that are more interesting to me.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, March 12, 2018
Department of Labor trying to get employees PAID for inadvertent FLSA violations
Photo by Sharon McCutcheon on Unsplash |
It appears that the Department of Labor agrees.
Last week, it announced a nationwide pilot program—the Payroll Audit Independent Determination (PAID) program—which will permit employers to self-report FLSA violations to the Department of Labor without risk of litigation or enforcement proceedings. It enables employers to resolve inadvertent minimum wage and overtime violations without litigation.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, March 1, 2018
Save money on overtime payments with the fluctuating work week
Photo by rawpixel.com on Unsplash |
An employer has two choices in how to pay overtime to a salaried non-exempt employee: by a fixed work week or by a fluctuating work week.
Spoiler alert: there is some math involved.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, February 26, 2018
“Exhibit A” for what’s wrong with the Fair Labor Standards Act
Consider this scenario.
Employer and Employee have a good-faith dispute over whether Employer owes Employee for unpaid overtime for time Employee spent traveling.
Employee sues.
Court awards Employee $608.08 for unpaid overtime (doubled to $1,216.16 as liquidated damages).
So far, this all seems kosher.
Then, however, Employee files his petition for attorneys’ fees.
$141,236.50 in attorneys’ fees.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, February 15, 2018
Can you pay your employees in Bitcoin?
“What is Bitcoin? I don’t understand how fake money works.”
These were the words of my 9-year-old last week.
Let me try to help him, and you, out.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, February 14, 2018
Federal judge hands Grubhub a huge victory in groundbreaking gig economy trial
Raef Lawson worked as a restaurant delivery driver for Grubhub for four months in late 2015 and early 2016. He claimed that the company misclassified him as an independent contractor, and owed him overtime for hours he worked over 40 in any workweek.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, January 23, 2018
Walmart (yes, Walmart) has now done more for worker rights than the U.S. government
Image by Sven via Wikimedia Commons |
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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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?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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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].
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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