Wage and Hour Defense Blog

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 ...

On July 27, 2009, the U.S. Court of Appeals for the Ninth Circuit held that a corporation's managers can be held personally liable under the Fair Labor Standards Act ("FLSA") for wages that the corporation failed to pay to employees prior to the employer's filing for bankruptcy. This opinion serves as a cautionary reminder of the risks managers potentially face when a corporation files for bankruptcy and has failed to pay its employees for all wages earned prior to the filing.

In Boucher v. Shaw, ---- F. 3d ----, 2009 WL 2217517 (9th Cir. 2009), former ...

After the recent seventy cent increase in minimum wage to $7.25, there were some interesting statements being made by Labor Secretary Hilda Solis.  In a press conference on July 24, Secretary Solis announced that the increase will help 3 million to 5 million workers and is "projected to generate $5.5 billion in consumer spending over the next year."  Of course, this statement implies that the money, if kept by businesses, would have just sat in a vault in the boss' office, and not have been spent on additional equipment, more employees, or expanding the business.

Under Solis, employers ...

I am pleased to report that the United States Court of Appeals for the Eleventh Circuit has affirmed the district court's summary judgment in favor of our client, a bus company, in a case involving the motor carrier exemption.  The case is Walters v. American Coach Lines of Miami, Inc. (11th Cir., July 23, 2009).

 I first reported on this case and discussed the basics of the motor carrier exemption in a September 2008 post on the Florida Employment Law Blog.  My EBG colleague, Brian Molinari, recently summarized the Walters decision in a post on the Prima Facie Law Blog.

A quick ...

A number of recent lawsuits illustrate how changing workplace technology can form the basis for creative FLSA lawsuits.  A wave of claims have been brought against Fortune 500 companies alleging that non-exempt employees have not been paid for "off the clock "duties such as logging into computer systems and responding to email and text messages after work hours and on weekends.

Putting aside the merits of these cases, this trend illustrates the legal implications of introducing technology into the workplace, especially when used by non exempt employees to work remotely.  ...

By now, you are probably aware that the minimum wage under the federal Fair Labor Standards Act goes up to $7.25 on July 24, 2009. Employers with operations in Florida know that this is four cents more than the current Florida minimum wage of $7.21.  Florida employers must pay the higher of the two wages.

But what's the minimum wage for tipped employees in Florida as of July 24th?  The answer is not as simple as you might think, and you might be misled by reading the Florida Agency for Workforce Innovation web page on the minimum wage.  That web page states the new federal ...

By Michael Kun and Matthew A. Goodin

California employers are celebrating a new California Supreme Court decision that effectively prevents unions from filing suit under the Labor Code Private Attorneys General Act ("PAGA") and the Unfair Competition Law ("UCL").

 There is no reason to celebrate.

What appears to be a major victory for employers is, in fact, no victory at all once one considers the practicalities of litigation.

On June 29, 2009, the same day that it issued its highly anticipated opinion in Arias v. Supreme Court, holding that employees need not bring representative ...

By Michael S. Kun and Aaron Olsen

You probably remember the scene in Jaws when Roy Scheider's character first sees the shark that he and his crew have been pursuing.

And you probably remember what he says: "We need a bigger boat."

Well, after the California Supreme Court's latest ruling, California employers may need a bigger boat.

Already besieged by wage-and-hour class actions, California employers now need to brace themselves for a new wave of representative actions under California’s Private Attorneys General Act ("PAGA") after the California Supreme Court has made it ...

Doug Weiner and Matthew Miklave recently prepared a Client Alert noting an effort underway in Congress to broaden the application of the Fair Labor Standards Act in the Health Industry.  That Alert is excerpted below.

Fifteen United States senators have stepped forward to urge the U.S. Department of Labor ("DOL") to repeal a broad exemption from the minimum wage and overtime requirements of the federal Fair Labor Standards Act ("FLSA") for home health care workers. Under current DOL regulations, home health care aides who perform companionship services for the elderly and ...