Wage and Hour Defense Blog

True to its promise last year, the U.S. Department of Labor’s Wage and Hour Division (the “WHD”) continues to issue a steady stream of opinion letters designed to offer practical guidance to employers on specific wage and hour issues solicited by employers. This past week, the WHD issued two new opinion letters concerning the Fair Labor and Standards Act (“FLSA”), where one addresses an employer’s hourly pay methodology vis-à-vis the FLSA’s minimum wage requirement, and the other the ministerial exception to the FLSA. While not universally applicable, employers ...

Almost four years ago, we wrote about how a California Court of Appeal’s decision exposed health care employers to litigation if they relied upon IWC Wage Order 5 for meal period waivers. That decision was Gerard v. Orange Coast Memorial Medical Center (“Gerard I”), where the Court of Appeal concluded that IWC Wage Order 5 was partially invalid to the extent it authorized second meal period waivers on shifts over 12 hours.

Last year, we wrote about how the California Court of Appeal in Gerard II reversed its previous decision after the Legislature enacted SB 327 shortly after ...

On December 7, 2018, Governor Andrew M. Cuomo signed into law an amendment to New York Labor Law (“NYLL”) Section 193 (“NY Wage Deduction Law”) extending the NY Wage Deduction Law, which had expired on November 6, 2018, until November 6, 2020.

Introduced in 2012, the NY Wage Deduction Law amended the NYLL to permit employers to make certain deductions from the wages of their employees, including deductions for accidental overpayments, salary advances (including advances of vacation time), and insurance premiums. The NY Wage Deduction Law also introduced rules ...

In recent years, a growing number of states and localities have enacted unique minimum wage laws and ordinances entitling employees to be paid more – in some cases, substantially more – than the federal minimum wage, which has stood at $7.25 for nearly a decade.

As these minimum wages become more particularized, multi-jurisdictional employers face an increasing challenge to maintain compliance.

Below is an overview of notable increases slated to take effect on January 1, 2019, unless otherwise noted.

Please note that, at this late date, the 2019 minimum wage remains the subject ...

Featured on Employment Law This Week:  The Department of Labor (“DOL”) rolls back the 80/20 rule.

The rule prohibited employers from paying the tipped minimum wage to workers whose untipped side work—such as wiping tables—accounted for more than 20 percent of their time. In the midst of a federal lawsuit challenging the rule, the DOL reissued a 2009 opinion letter that states that the agency will not limit the amount of side work a tipped employee performs, as long as that work is done “contemporaneously” with the tipped work or for a “reasonable time” before or after ...

On December 4, 2018, New York City’s Taxi and Limousine Commission (“TLC”) voted to require ride-hailing companies operating in New York City to compensate its drivers who are treated as independent contractors, and not employees, on a per-minute and –mile payment formula, which will result in a $17.22 per hour wage floor.

This new rule is scheduled to take effect on December 31, 2018.

This new minimum wage for independent contractor drivers who operate vehicles on behalf of ride-hailing companies – including Uber, Lyft, Via, and Juno – will surpass the new $15 minimum ...

Effective December 31, 2018, New York State’s salary basis threshold for exempt executive and administrative employees[1] will increase again, as a part of amendments to the minimum wage orders put in place in 2016.[2] Employers must increase the salaries of employees classified as exempt under the executive and administrative exemptions by the end of the year to maintain these exemptions.

The increases to New York’s salary basis threshold for the executive and administrative exemptions will take effect as follows:

Employers in New York City 

• Large employers (11 or ...

Under the Fair Labor Standards Act (“FLSA”), employers can satisfy their minimum wage obligations to tipped employees by paying them a tipped wage of as low as $2.13 per hour, so long as the employees earn enough in tips to make up the difference between the tipped wage and the full minimum wage. (Other conditions apply that are not important here.) Back in 1988, the U.S. Department of Labor’s Wage and Hour Division amended its Field Operations Handbook, the agency’s internal guidance manual for investigators, to include a new requirement the agency sought to apply to ...

Joining several other federal appellate courts including the Fourth and Ninth Circuits , on October 22, 2018 the Seventh Circuit concluded in Herrington v. Waterstone Mortgage Corporation, No. 17-3609 (7th Cir. Oct. 22, 2018) that the arbitrability of a class claim is one for the court to decide, not the arbitrator. In so doing, the court placed in jeopardy a $10 million arbitration award in a wage-hour case.

Herrington originally filed suit against Waterstone, alleging that Waterstone failed to pay her and other employees minimum wages and overtime pay in violation of  the FLSA ...

In April 2018, we wrote about the California Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court, which had clarified the standard for determining whether workers in California should be classified as employees or as independent contractors for purposes of the wage orders adopted by California’s Industrial Welfare Commission (“IWC”).

In Dynamex, the Court adopted the “ABC” test that has been used in some other jurisdictions.  Because Dynamex had adopted the “ABC” test for claims arising under IWC wage orders, there was some uncertainty ...