Wage and Hour Defense Blog

By: Dean Silverberg, Bill Milani, Jeffrey Landes, Susan Gross Sholinsky, Anna Cohen, and Jennifer Goldman

The New York State Department of Labor ("DOL") recently published its long-awaited proposed regulations ("Proposed Regulations") pertaining to the newly expanded categories of permissible wage deductions pursuant to the New York State Labor Law ("Labor Law"). As we previously reported (see the Act Now Advisory entitled "New York Labor Law Significantly Expands the Scope of Permissible Wage Deductions"), the amendments to Section 193 of the Labor Law ("Section 193 ...

By: Kara Maciel and Jordan Schwartz

As discussed in prior blogs, due to confusion surrounding FLSA tip pool requirements, the U.S. Department of Labor (“DOL”) Wage and Hour Division enacted a strict rule in 2011 related to proper tip pooling and service charge practices. This rule was met with swift legal challenges, and earlier this week the U.S. District Court for the District of Oregon concluded that the DOL had exceeded its authority when implementing its final rule. See Oregon Rest. and Lodging Assn. v. Solis, No. 3:12-cv-01261 (D. Or. June 7, 2013).

Inconsistent ...

 By Michael Kun

Recently, there have been a number of reports indicating that federal wage-hour lawsuits under the Fair Labor Standards Act increased by 10% in 2012, after smaller increases in the preceding years.

What about California, though?

While I am not aware of anyone who has compiled the figures to determine whether the number of California wage-hour cases has risen or fallen in the past year or so, from where I sit it certainly seems like there has been some decline in the number of wage-hour cases filed in California.  And, if not, we can probably expect that in the years to come.

By Andrew J. Sommer

There has been a lack of clarity in California wage and hour law on how compensation must be structured to meet the “salary basis test,” particularly where an exempt employee is paid based on hours worked. However, in Negri v. Koning & Associates, the California Court of Appeal addressed this very issue and concluded that a compensation scheme based solely upon the number of hours worked, with no guaranteed minimum, is not considered a “salary” for the purpose of state overtime laws. 

Under California law, an employee exempt from overtime laws must ...

Michael Kun, co-founder of this blog and Member of Epstein Becker Green, was recently quoted in Inside Counsel about the impact of the U.S. Supreme Court’s Wal-Mart v. Dukes decision upon wage-hour class actions.

The article, "Citing Dukes, Court Overturns Class Certification in Wage and Hour Dispute," focuses on the Ninth Circuit’s recent Wang v. Chinese Daily News decision, about which Michael has previously written in this blog.

We are pleased to announce the release of a new version of our Wage & Hour Guide app that puts federal and state wage-hour laws at employers’ fingertips. To download the app, click here.

The new version features an updated main screen design; added support for iOS 6, iPhone 5, iPad Mini, and fourth generation iPad; improved search capabilities; enhanced attorney profiles; expanded email functionality for sharing guide content with others; and easier access to additional wage and hour information on EBG’s website, including the Wage and Hour Division Investigation Checklist  and ...

By Michael Kun

“Hybrid” wage-hour class actions are by no means a new concept. 

In a “hybrid” class action, the named plaintiff files suit seeking to represent classes under both the federal Fair Labor Standards Act (“FLSA”) and state wage-hour laws.  As the potential recovery and limitations periods for these claims are often very different, so, too, are the mechanisms used for each. 

In FLSA claims, where classes can be “conditionally certified” if a plaintiff satisfies a relatively low burden of establishing that class members are “similarly situated” – a ...

by Stuart Gerson

In Genesis Healthcare Corp. v. Symczyk, the Unites States Supreme Court held that a collective action under the FLSA was properly dismissed for lack of subject matter jurisdiction after the named plaintiff ignored the employer’s Fed. R. Civ. P. 68 offer of judgment. The Court concluded that the plaintiff had no personal interest in representing putative, unnamed claimants, nor did she have any other continuing interest that would preserve her suit from mootness.

The plaintiff’s collective action was originally filed in District Court for the Eastern ...

By Elizabeth Bradley

This on-going series of blog posts flows from EBG’s publication of its Wage and Hour Division Investigation Checklist for employers. The Checklist, along with this series, is aimed at guiding employers through DOL Wage and Hour Division Investigations.

We have previously blogged our way through How to Prepare for a Wage and Hour Inspection, What to Do When a Wage and Hour Investigation Team Arrives to Start Auditing, and What Records Must be Provided to the DOL. In this post, we discuss what to expect during the “walk around” inspection portion of the ...

By Stuart Gerson

Wage-hour lawsuits filed under the federal Fair Labor Standards Act (FLSA) represent one of the fastest growing and most problematic areas of litigation facing employers today, especially when such cases are brought as collective actions. A recent Supreme Court case based in class action analysis provides a potentially-useful analog for employers to stave off such collective actions.

Class action criteria are set forth in Fed. R. Civ. P. 23, and they allow for one or more individual named plaintiffs to sue on behalf of a large – sometimes very large – group of ...