Wage and Hour Defense Blog

In a decision with significant implications for employers and employees alike, the New Jersey Supreme Court on March 17, 2025, clarified that commissions constitute wages under the New Jersey Wage Payment Law (“NJWPL”). In Musker v. Suuchi, Inc. et al., the Court reversed the rulings of both the trial court and the Appellate Division, holding that commissions paid for an employee’s labor or services “always constitute a wage under the WPL.”

In drawing its conclusion, the court focused on the NJWPL’s definition of “wages,” which is defined as “direct monetary compensation for labor or services rendered by an employee, where the amount is determined on a time, task, piece, or commission basis.” N.J.S.A. 34:11-4.1(c) (emphasis added).

Wage and hour compliance often presents complex challenges for employers, with unclear regulations and changing enforcement priorities.

Addressing these issues proactively and resolving potential disputes are vital for maintaining compliance and reducing risks.

In this one-on-one interview, Epstein Becker Green (EBG) attorney Paul DeCamp sits down with fellow EBG attorney George Whipple to offer his seasoned perspective on wage and hour matters. Tapping into his experience as the former head of the Wage and Hour Division under President George W. Bush, Paul provides an insider’s view of government enforcement priorities, compliance pitfalls, and the complexities employers face when disputes arise.

Beginning April 9, 2025, Ohio employers will be legally required to give employees access to their paystubs. Citing transparency, accountability, and fairness in the workplace, the Ohio General Assembly unanimously passed the the Paystub Protection Act (PPA),  which requires Ohio employers to issue paystubs, either electronically or via hard copy, to all employees on regular paydays that include the:

• Names of the employee and employer;
• Employee’s address;
• Employee’s total gross wages during the pay period;
• Employee’s total net wages during the pay period;
• Amount and purpose of each addition or deduction to wages; and
• Dates of the pay period.

For hourly employees, the following three additional items are required:

• Total hours worked;
• Hourly rate; and
• Hours worked in excess of 40 hours in one workweek.

While California employers may be generally aware of the nine requirements for wage statements, a careful review of the nuances of each of those requirements is necessary to ensure compliance under Labor Code section 226. But the inquiry does not end there. When, how, and what to do to maintain these records is equally important in maintaining compliance and thereby protecting the company against wage statement penalties.  

Required Contents—the Basics

We previously covered what California employers need to include on wage statements pursuant to Labor Code section 226(a):

1. Gross wages earned;
2. Total hours worked;
3. Certain information for employees paid on a piece-rate basis;
4. All deductions;
5. Net wages earned;
6. Pay period;
7. Employee’s name and either (a) the last four digits of the social security number or (b) employee identification number;
8. Name and address of the legal entity that is the employer; and
9. All applicable hourly rates.

More than a decade ago, Epstein Becker Green (EBG) created its complimentary wage-hour app, putting federal, state, and local wage-hour laws at employers’ fingertips.

The app provides important information about overtime, overtime exemptions, minimum wages, meal periods, rest periods, on-call time, and travel time, as well as tips that employers can use to remain compliant with the law and, hopefully, avoid class action, representative action, and collective action lawsuits and government investigations. 

As the laws have changed over the years, so too has EBG’s free wage-hour app, which is regularly updated to reflect those developments.

Section 3(m)(2)(B) of the FLSA prohibits employers, including managers or supervisors, from keeping any portion of an employee’s tips.  Accordingly, the law has been clear that a manager or supervisor cannot participate in a general employee tip pool, since tip pools including tips of other employees. 

Although this appears clear at first blush, the blurred lines of restaurant staffing creates ambiguity as to who is exactly a manager or supervisor.  Non-exempt employees often work in a certain supervisory capacity as team or shift leads.  Conversely, it is also common for managers and supervisors in restaurants to perform a certain amount of non-supervisory duties.  So, when are employees with minor supervisory responsibilities treated as managers for tip pooling?  And can managers participate in tip pools when they perform non-supervisory duties?

The Serrano/Ducksworth defense.

If you know what I’m referring to, you don’t need to read any further.  But if you don’t, well, please read on.

A great many employment lawsuits include claims against alleged “joint employers” – for instance, a temporary staffing company and the client to which the employee was assigned, or related corporate entities that share similar names (and, perhaps, shared services, which is another issue).

And in many of those lawsuits, plaintiffs and their counsel have simply lumped the two companies together and have alleged that “defendants” engaged in unlawful conduct, without making any effort to distinguish between the two defendants, much less their alleged conduct.

Once again, we rang in the new year with a great many state and local minimum wage increases.

This year, 23 states—and several counties and cities—will increase their minimum wages and, where applicable, tipped minimum wage. Most of these increases went into effect on January 1, 2025.

Employers with minimum wage (and tipped minimum wage) workers should discuss newly implemented increases with counsel to ensure their compensation practices comply across all relevant jurisdictions.

Following the United States Supreme Court’s decision in Viking River Cruises, Inc. v. Moriana (2022) U.S. 639 and the California Supreme Court’s decision in Adolph v. Uber Technologies, Inc. (2023) 14 Cal. 5^th 1104, when faced with employee arbitration agreements, California trial courts have regularly compelled plaintiffs to arbitrate their individual Private Attorneys General Act (“PAGA”) claims first, while staying their representative, non-individual PAGA claims.

In an attempt to avoid arbitrating the named plaintiffs’ individual PAGA claims – and knowing that the representative, non-individual claims would be dismissed if the employers prevailed in an individual arbitration – more than a few plaintiff’s counsel have tried to circumvent Adolph by asserting that their clients were not bringing individual claims at all, but were only bringing claims on behalf of others. 

In response, employers have argued that, based on the clear statutory language, every PAGA action necessarily includes an individual PAGA action such that those individual claims have to be arbitrated first.

In what many would consider to be an employer-friendly decision, more than a decade ago in Brinker Restaurant Corp. v. Superior Court, the California Supreme Court clarified many of the general requirements for meal and rest periods under California law. But in 2021, the California Supreme Court issued employee-friendly decisions in Donohue v. AMN Services, LLC and Ferra v. Loews Hollywood Hotel, LLC.  Since these latter decisions have seemingly spurred an increased number of class and PAGA actions alleging meal and rest period violations, it makes sense to revisit the requirements. 

California wage-hour law is governed in large part by 18 different wage orders that apply to different industries and occupations.  “The number of wage orders, and their internal variations, reflects the reality that differing aspects of work in differing industries may call for different kinds of regulation,” as the California Supreme Court explained in Mendiola v. CPS Security Solutions, Inc.  Indeed, as the Court explained in Brinker, “[w]hat will suffice [for meal and rest breaks] may vary from industry to industry.”

With that in mind, this tip is not a one-size-fits-all guide but instead discusses California’s meal and rest period requirements generally.