Wage and Hour Defense Blog

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 ...

Employers in California have been inundated with wage-hour class actions for the past two decades.  And, time and again, they have had to deal with employee-friendly decisions from the California Supreme Court.

Leave it to the Ninth Circuit Court of Appeal to step in and put an end to a proposed class action, finding that there were no “real-world consequences” from wage statements that had an error in the employer’s name.

In Lerna Mays v. Walmart Stores, Inc., the plaintiff brought suit under California Labor Code section 226 after receiving her final pay stub, which listed her ...

In the coming days, weeks and perhaps months, many employers will have difficult decisions to make about their operations and their workforces.  With their operations shutting down or running at less than capacity, many employers will decide that they must lay off employees.

It’s a decision that no employer wishes for or enjoys.  And it is one that poses some risks.

Not only must employers take steps to ensure that layoff decisions are made in a manner that does not adversely impact protect groups, but employers need to be mindful of the various state laws governing when final wages must ...

Our colleagues Jeffrey H. Ruzal, Denise M. Dadika, Maxine H. Neuhauser, and Eduardo J. Quiroga have co-authored an Act Now Advisory that will be of interest to our readers: "Department of Labor Issues OSHA, Wage/Hour, and FMLA Guidance Addressing COVID-19."

Following is an excerpt:

In response to the spreading 2019 novel coronavirus (“COVID-19”) pandemic, which has now been declared a national emergency by President Trump, the Department of Labor has released guidance to employers, summarized more fully below:

• • The Occupational Safety and Health Administration ...

Employers grappling with workplace attendance issues in the wake of the COVID-19 coronavirus may soon face additional challenges resulting from a potential economic downturn.  Media stories are already beginning to report on potential furloughs and layoffs.  For some employers, reducing the workweek (e.g., from 5 working days to 4 working days) could be a reasonable business response.  But would reducing the workweek affect the overtime exemption for exempt employees?

That question has been answered by the Tenth Circuit in In re Wal-Mart Stores, Inc., 395 F.3d 1177 (10th Cir ...