Wage and Hour Defense Blog

It is that time of the year when most companies start thinking about handing out year end or Christmas bonuses to their employees.  For exempt workers, such payments are not a concern.  For non-exempt workers, however, bonus payments raise the prospect of adding to the employee's regular rate, which could result in additional overtime liability.  For example, if an employee works overtime in the week he receives a bonus check of $400.00, the Department of Labor may require the bonus to be included in the "regular rate" upon which the time and one half overtime calculation is based (i.e ...

by Betsy Johnson

On November 23, 2009, the Chief Counsel of the California Division of Labor Standards Enforcement ("DLSE") issued an Opinion Letter on behalf of the Labor Commissioner, Angela Bradstreet, in which the DLSE modified its enforcement stance on the issue of making deductions from exempt employee accrued vacation to cover partial-day absences. In the Opinion Letter, the DLSE opined that there is nothing in California law that would prevent an employer from implementing a policy that provides for hour-for-hour deductions from accrued vacation leave for partial-day ...

By Bill Milani, Jeff Landes, Susan Gross Sholinsky and Anna Cohen

We previously advised that the New York State Department of Labor ("DOL") had taken the stance that in order to comply with Section 195(1) of the New York State Labor Law (i.e., to provide proper notice to employees of their wages, overtime rates (if applicable) and paydays), employers would be required to utilize the DOL's official forms, which could be accessed at the DOL's Web site.

The DOL has now decided that, while employers may still elect to utilize the DOL's forms, employers need not utilize the DOL's forms in order ...

Often, employers ask their outside labor counsel to review job descriptions or other material to provide an opinion on whether a job, or group of jobs, should be classified as exempt from overtime requirements.  Such efforts would seemingly be a classic example of a privileged attorney client communication made for the purpose of providing legal advice.

In a recent case out of California state court, however, this answer was not so clear at the trial and appellate level, who both required the employer to hand over a redacted version of such a letter in a class action overtime suit.  The ...

Several of the firm's labor lawyers in our New York office provided the following update on recent changes to New York wage and hour laws.

As we previously reported in our Summer 2009 New York State Employment Law Update, as of October 26, 2009, New York Labor Law Section 195(1) requires employers to notify all newly hired employees of the following: (i) rate of pay, (ii) regular paydays, and (iii) hourly rate and overtime pay rate (for all non-exempt employees). Employees must sign a statement acknowledging receipt of the written notice, and employers must keep the signed statement for ...

According to a federal judge in California, the answer is "Yes."  Judge Wilken of the U.S. District Court for the Northern District of California issued a summary judgment ruling on October 16, 2009 holding that temporary employees of Kelly Services were owed overtime for time spent in interviews for job placement.  The rationale for the decision included findings that Kelly arranged the interviews, helped the applicants prepare for the interviews, and debriefed them afterwards.  The judge rejected Kelly's arguments that the interviews were purely voluntary, and for the benefit ...

A conflict is brewing in the federal courts over whether a defendant's offer to settle a collective action FLSA case for full relief can moot the case and effectively deprive the court of jurisdiction.  Plaintiff's lawyers view this tactic as a trick aimed at "picking off" class members to avoid a larger suit, while defendants argue that the courts should not be used to stir up litigation once a party's claim has been fully satisfied.  Put simply, why continue a lawsuit once the plaintiff has won everything he or she could collect?

In a recent decision out of North Carolina, a federal judge has ...

In a recent Client Alert prepared by Jeff Landes, the firm summarized several new laws passed by the New York legislature which will affect employers.  Among these laws was a very important change to the wage and hour laws, which will affect all companies with employees in New York.

Rate of Pay, Regular Pay Day and Overtime Rate Must Be in Writing and Acknowledged by New Hires

Labor Law Section 195(1) currently requires employers to provide newly hired employees with information regarding their rate of pay and the employer's regular pay days – such notice need not be written. On July 28 ...

A client this week asked us to provide an opinion letter regarding the exempt status of certain supervisors, and some tips on how to avoid lawsuits regarding mis-classification.  Although some of the advice was specific to the client's business, much of the advice is applicable to a wide variety of industries.  An excerpt from the memo is below.

• Carefully craft job descriptions to emphasize exempt duties over non-exempt duties – require employees to acknowledge their job descriptions in writing.
• List the two or more employees supervised by an exempt manager in the job ...

Furloughs are a hot topic in today's economy.  I previously reported on the potential usefulness of furloughs, as well as the risk that reducing an employee's salary as part of a furlough program could run afoul of the "salary basis" test and jeopardize the employee's exempt status. 

Recognizing the need for legal guidance on this issue, the U.S. Department of Labor's Wage and Hour Division recently issued a user-friendly "Frequently Asked Questions" fact sheet on furloughs. (Special thanks to my EBG colleague Elissa Silverman for bringing this to my attention.)

I don't ...