Wage and Hour Defense Blog

In Viet v. Le, No. 18-6191, the U.S. Court of Appeals for the Sixth Circuit provided insight into the kind of evidence employees must present in order to create a jury question over whether they worked unpaid overtime in violation of the Fair Labor Standards Act (“FLSA”).

In the case, plaintiff Quoc Viet purchased used copiers in the United States and shipped them to Vietnam for resale by the defendants Victor Le and Copier Victor, Inc.  Copier Victor classified Viet, who worked from his home and a nearby warehouse, as an independent contractor.  Le paid Viet a fixed rate for each copier ...

Due to the COVID-19 pandemic and the resulting shelter-in-place and related orders, many businesses across America have already shuttered, while others are on the brink of collapse.  In these challenging times, businesses are understandably considering any and all potential solutions to keep their employees on payroll while remaining solvent.  Some employers have even been considering converting their W-2 employees to 1099 independent contractors.  The surface appeal is simple, which is that employers can avoid employment taxes, benefit costs, and overtime compensation ...

The U.S. Department of Labor (“DOL”) has renewed its invitation to employers and employees to engage in a “national online dialogue” in connection with the Families First Coronavirus Response Act (FFCRA), which took effect on April 1.  The DOL is soliciting comments and questions with respect to its questions and answers, posters, and fact sheets that it has published in connection with the FFCRA.

The DOL has also extended the deadline from March 29 to April 10 for employers and employees to provide input online at https://ffcra.ideascale.com.

Employers may want to speak ...

It is no secret that independent contractor misclassification claims are being filed against employers with a great deal of frequency, often as class actions and often in California.  Many of those lawsuits have been filed against gig economy companies.  But, of course, they are not the only companies facing such claims.

As a result, many companies that classify workers as independent contractors are asking a basic question, “Are those workers properly classified?”

It sounds like such a simple question, one that should have a simple answer.

But there is no simple answer, at least ...

In addition to its recent, exigent responsibility of preparing guidance on the protections and relief offered by the Families First Coronavirus Response Act, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) has issued three new opinion letters addressing the excludability of certain types of payments from the regular rate of pay under the Fair Labor Standards Act (“FLSA”).  While these opinion letters do not tread new ground, they are useful reminders of important regular rate principles and merit careful review.

As background, under the FLSA, an employer ...

Be careful what you ask for.

We have used that expression frequently when writing about recent federal court orders requiring DoorDash and Postmates to conduct thousands of individual arbitrations in California pursuant to the terms of their arbitration agreements with their drivers.

Thousands of individual arbitrations for which DoorDash and Postmates would have to pay many millions of dollars in arbitration fees alone.

The risk of dozens, hundreds or even thousands of individual arbitrations attends any time an employer seeks the benefits of an arbitration agreement ...

As previously discussed, Colorado officially adopted the Colorado Overtime and Minimum Pay Standards Order # 36 (“COMPS Order”) on January 22, 2020, which went into effect on March 16, 2020.  However, the Division of Labor Standards and Statistics in the Colorado Department of Labor and Employment (“the Division”) has recently implemented temporary emergency modifications to the COMPS Order.  The temporary changes will remain in effect through July 14, 2020 (the “temporary period”), although the State intends to go through a formal notice and comment period to make ...

The U.S. Department of Labor (“DOL”) has invited employers and employees to engage in a “national online dialogue” in connection with the expected April 2, 2020 implementation of the Families First Coronavirus Response Act (FFCRA).  The DOL is soliciting comments and questions as it develops compliance assistance materials and outreach strategies related to FFCRA.

Input may be offered online at https://ffcra.ideascale.com through March 29, 2020, or through Twitter chat hosted by @ePolicyWorks on March 25, 2020 at 2:00 p.m. using the hashtag: #EPWChat.

Given the number of states that have already ordered the closure of non-essential businesses due to the COVID-19 pandemic, employers fortunate to remain operational are likely dealing with the myriad challenges of a remote workforce.

As we previously wrote here, employers with work-from-home (“WFH”) policies in place need to make sure they are appropriately compensating their workers and are otherwise complying with all applicable federal, state, and local wage and hour laws.

In the WFH context, the related wage and hour concepts of “waiting time” and “on-call ...

In an effort to slow the spread of the 2019 novel coronavirus (“COVID-19”), many employers around the country are encouraging—if not requiring—their employees to work remotely.  Although telecommuting during a public health crisis presents obvious benefits, it also presents employers with unique challenges, such as ensuring compliance with applicable expense reimbursement laws.

Employees working from home may incur any number of expenses – home computers, printers, Internet service, WiFi connections, smartphones and even paper, pens and other office ...