Wage and Hour Defense Blog

Earlier this month, in Urnikis-Negro v. American Family Property Services, 616 F.3d 665 (7th Cir. 2010), Ms. Urnikis-Negro, a former clerical employee at a real estate appraisal firm, sought relief from the U.S. Supreme Court and requested that it clarify the "fluctuating workweek" method that employers can use in calculating overtime. Before the trial court, Ms. Urnikis-Negro contended that although she routinely worked more than 40 hours a week, she never received any overtime pay. American Family Property Services argued that she was exempt for overtime as an administrative employee. While the trial court rejected the employer's exemption classification, it concluded that it could pay her overtime based on the Department of Labor's ("DOL") "fluctuating workweek" method.

According to Kraft, by enacting Section 203(o) of the FLSA, Congress believed that allowing labor and management to alter donning and doffing compensation through collective bargaining was in the best interest of the employees and that any such agreement should be enforceable despite any potential contradictory State law, consistent with Congress's mandate that collective bargaining be governed exclusively by federal law. Kraft believes the Seventh Circuit's opinion is inconsistent with Supreme Court precedent and misinterprets federal law

by Michael Kun and Aaron Olsen

In recent years, some plaintiffs' counsel bringing wage-hour claims have have made the strategic decision to bring "hybrid" class actions; that is, actions alleging both federal and state wage-hour claims.  These cases can cause logistical nightmares for the courts, and great benefits for plaintiffs, for two primary reasons: (1) the standard for certification of a class is differerent for federal and state claims, and (2) classes in federal claims are "opt in" classes while those for state claims are "opt out" classes.  Indeed, in bringing ...

The New York State Department of Labor recently issued a proposed rule which would combine the current wage orders for the restaurant and hotel industries to form a single Minimum Wage Order for the Hospitality Industry. If adopted, the Wage Order would affect requirements related to the minimum wage, tip credits and pooling, customer service charges, allowances, overtime calculations, and other common issues within the restaurant and hotel industries. Additionally, the Wage Order would provide helpful guidance for traditionally ambiguous wage issues such as the handling of service charges and the definition of an employee uniform for purposes of a laundry allowance.

On October 14, the IRS announced that the Health Care Reform Law's requirement that employers report the cost of health insurance on W-2's along with wages will be delayed by one year.  Now, employers must report health insurance cost on the 2012 W-2s, which in most cases will be issued to employees in January 2013. 

The announcement explained that “the Treasury Department and the IRS have determined that this relief is necessary to provide employers the time they need to make changes to their payroll systems or procedures in preparation for compliance with the new reporting ...

Employers with operations in California continue to await a ruling from the California Supreme Court on the question of whether employers must "ensure" that meal and rest breaks are taken, or merely make them "available."

 

by David W. Garland

During the last year, courts have reached different conclusions as to whether outside sales representatives of pharmaceutical companies are exempt and therefore not entitled to receive overtime under the Fair Labor Standards Act. These cases turned on the specific duties assigned to the sales representatives by their employers and point out that pharmaceutical companies need to review carefully the responsibilities of these employees.

In Smith v. Johnson & Johnson, 593 F.3d 280 (3d Cir. 2010), decided by the Court of Appeals for the Third Circuit in ...

The healthcare industry continues to be the main target in the onslaught of wage and hour claims asserting violations of unpaid overtime and missed meal periods. These claims often result in millions of dollars being paid out to settle lawsuits and government investigations.

by Michael Kun

The California Supreme Court has announced what can only be considered a major victory for hospitality employers in California.

California Labor Code section 351 probibits employers from taking any tip that customers may leave for employees.  Many hospitality employers have long used tip-sharing policies, whereby tips left by customers are divided among those involved in service.  In recent years, those tip-pooling practices have been challenged under section 351 as part of the wave of wage-hour class actions brought against California hospitality employers.