Second Circuit To Consider Whether Plaintiffs Can Simultaneously Pursue FLSA And Pendent State Law Claims in Federal Court

As wage and hour litigation continues to be the majority of litigation in the workplace law arena, many employers are faced with defending federal and state law claims in the same federal court lawsuit.  This poses a practical issue as the FLSA provides for an opt-in class while state laws generally provide for opt-out classes.   … Continue reading Second Circuit To Consider Whether Plaintiffs Can Simultaneously Pursue FLSA And Pendent State Law Claims in Federal Court
May 18, 2010

Court Allows Counterclaim To Set Off Fees Paid To Independent Contractors Alleging Misclassification

When an independent contractor alleges s/he was misclassified and seeks alleged unpaid minimum wage and overtime, a significant issue is whether a prevailing plaintiff can receive a windfall.  Simply put, can an independent contractor alleging misclassification under the FLSA (or state law) keep fees for services already collected, and also collect a damages award for … Continue reading Court Allows Counterclaim To Set Off Fees Paid To Independent Contractors Alleging Misclassification
May 11, 2010

New York’s Consolidated Hospitality Industry Wage Order: Status?

As previously reported in detail here, in November 2009 then-New York Commissioner of Labor Patricia Smith issued an Order accepting the 2009 Restaurant and Hotel Industry Wage Board’s recommendation to consolidate and modify the Wage Orders currently in effect covering New York restaurant and hotel industry employers. The Department however has yet to issue the proposed … Continue reading New York’s Consolidated Hospitality Industry Wage Order: Status?
May 8, 2010

There Is No Personal Liability For Wage and Hour Violations: Is There?

Business owners, supervisors and managers performing services for corporate entities often believe that liability for wage and hour violations can be imposed solely on the incorporated entity.  To the contrary, as demonstrated by a recent New York Federal Court decision, various theories support individual liability under both federal and, in this case, New York State law. … Continue reading There Is No Personal Liability For Wage and Hour Violations: Is There?
May 5, 2010

Supreme Court Declines to Review Second Circuit’s Narrow Interpretation of Administrative Exemption

The FLSA’s administrative exemption requires the party claiming exemption to establish that the employee was engaged in “administrative” work, as opposed to “production” work (the so-called administrative/production dichotomy). Determining whether an employee meets the administrative exemption can be challenging.   This determination is even more difficult in white-collar industries, where unlike in manufacturing, it is not so … Continue reading Supreme Court Declines to Review Second Circuit’s Narrow Interpretation of Administrative Exemption
May 4, 2010

USDOL Officials Discuss Misclassification and Other Initiatives To Encourage Employer Compliance with FLSA

During the week of April 26, senior Labor Department officials discussed upcoming rules and initiatives. In a web chat, Nancy Leppink, deputy administrator of the Wage and Hour Division, stated that the agency will issue proposed rules covering numerous areas including companionship services, child labor and recordkeeping within the next 18 months.    The proposed recordkeeping rules are … Continue reading USDOL Officials Discuss Misclassification and Other Initiatives To Encourage Employer Compliance with FLSA
May 3, 2010

California Meal and Rest Period Compliance: Where Are We Now?

As every California employer knows, wage and hour class actions in California are never-ending.  One basis for many of these class actions has been employers’ alleged non-compliance with California meal and rest period requirements.  As to meal periods, the two overriding issues have been whether an employer is required to ensure non-exempt employees take their meal … Continue reading California Meal and Rest Period Compliance: Where Are We Now?
April 29, 2010

Maryland Legislature Clarifies Plaintiffs’ Ability to Seek Overtime Under Maryland Wage Payment and Collection Law

While the FLSA undeniably provides a plaintiff with the right to assert a statutory claim for unpaid overtime and receive all statutory damages, whether, and under what circumstances, such a claim can be asserted under a state wage and hour law is not always so clear.  In fact, in Maryland, courts had reached conflicting conclusions as to … Continue reading Maryland Legislature Clarifies Plaintiffs’ Ability to Seek Overtime Under Maryland Wage Payment and Collection Law
April 29, 2010

New Version of Proposed Contractor Misclassification Legislation Introduced

On April 22, 2010, a revised version of the Employee Misclassification Prevention Act (“Act”) was introduced. If enacted, the Act, would amend the FLSA and provide a host of new enforcement mechanisms and penalties to combat employer use of the “independent contractor” classification to avoid minimum wage and overtime payment obligations. If passed the Act would … Continue reading New Version of Proposed Contractor Misclassification Legislation Introduced
April 28, 2010

The Price of Non-Compliance with the Fluctuating Workweek Method of Overtime Calculation

Under the FLSA (and most state laws), the fluctuating workweek method (FWW) of overtime payment allows employers to reduce overtime expense by paying “half time” for all overtime hours if the following four factors are satisfied: 1) employees’ hours fluctuate from week; (2) employees receive a fixed salary each week that does not vary with … Continue reading The Price of Non-Compliance with the Fluctuating Workweek Method of Overtime Calculation
April 26, 2010

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