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Tipped Out? 5th Circuit Negates DOL Tip Credit Rule

How the FLSA “tip credit” is applied has been pushed and pulled numerous times over the last two decades. In the latest volley, the Fifth Circuit entered an order on August 23, 2024, vacating the Department of Labor’s 2021...more

I Haven’t Been Paying an Employee Correctly! Now What?

It is every employer’s nightmare: You find out that employees (or former employees) are claiming that they were not paid properly and are due overtime for the last two or three years. This primarily arises because you...more

Déjà Vu All Over Again? DOL Proposes New Rule on Salaried Exemption Threshold

The DOL issued a Notice of Proposed Rulemaking proposing, among other things, to increase the salary threshold for white-collar overtime exemptions. You may recall that there was a lot of discussion about this back in 2016...more

Failing to Cite? Say Bye to Employment Claims in the 5th Circuit

Does a plaintiff have to specify not only the facts but also the law that applies? In Bye v. MGM Resorts, Inc., the Fifth Circuit looks at a common pleading issue: What do you do when a plaintiff pleads facts that may or may...more

2nd Circ. Title VII Ruling Guides On Joint Employer Doctrine

The joint employer rule has been a hot topic in the last several years, mostly in the context of the Fair Labor Standards Act. Recall the drama of the Trump administration's narrower definition of a joint employer for...more

Turning the Other Cheek(s): Second Circuit Mandates Court Review of Dismissal of FLSA Case Without Prejudice

What is the right way to dismiss a case the parties have settled, and are FLSA cases different? Typically, when parties to a lawsuit settle a case, they merely alert the court of the settlement and then file a stipulation of...more

Here We Go Again? DOL Secretary Walsh Discusses Raising Overtime Exemption Salary Threshold

You may have missed it, but Secretary of Labor Marty Walsh perked up some ears last week when he discussed possibly raising the FLSA salary threshold for certain exempt employees. In testimony before a Congressional...more

Window Washers and Telegraph Operators Beware: DOL Eliminates Specific Retail and Non-Retail Examples Under Overtime Exemption...

For those of you craving a non-COVID-19 issue to chew upon, the Department of Labor opened the floodgates of debate by withdrawing the partial lists of establishments that could either be “recognized as retail” or “having no...more

Keeping It Regular: DOL Issues Rule Clarifying Regular Pay Rate

The Department of Labor recently issued a final rule about how to calculate an employee’s regular rate of pay for overtime purposes under the Fair Labor Standards Act. As everyone knows, under the FLSA you have to pay...more

Auld Lang Overtime: Reminder that New Thresholds on FLSA Exemptions Go into Effect Jan. 1

Here’s to hoping all our readers have a great New Year’s, but do not forget that the Department of Labor’s Wage and Hour Division is changing the threshold amount of salary necessary to meet the numerous overtime exemptions....more

Long Time Coming for Overtime Overhaul: DOL Issues New Exemption Threshold

Yesterday, the Department of Labor’s Wage and Hour Division issued a final rule regarding the threshold amount of salary necessary to exempt an employer from the obligation to pay overtime. The threshold since 2004 was $455...more

Not a Bad Place to Be: Fifth Circuit Addresses the “Highly Compensated” Exemption Under the FLSA

Sometimes employment laws can make the common person’s head spin. That certainly could be the case for a recent Fifth Circuit opinion examining the “highly compensated” regulatory exemption from the overtime requirements of...more

Is Sleeping Working? – DOL Issues Opinion Letter on Sleeping While on the Job

When is sleeping working? According to a recent DOL Opinion Letter, probably not when it occurs off duty in a sleeper berth of an over-the-road truck. A trucker’s job is to haul a load from Point A to Point B, which often...more

The Tipping Point: DOL Rescinds 20 Percent Rule on “Side Work” for Tipped Employees

If you see your waiter or waitress grumbling during the holiday season, it could be due to the DOL’s Wage and Hour Division’s revision of the rules dealing with minimum pay due to “tipped” employees. Under the FLSA and...more

Yes to Getting Paid for Getting Dressed? Doesn’t Meet the Test, Says 11th Circuit

When do you have to pay an employee before a shift? In Llorca v. Sheriff (Collier County, Florida), the Eleventh Circuit waded into the rich history of what types of pre-shift activities might qualify for hourly compensation....more

The Department of Labor Wishes You a Happy New Year — and Implements Employer-Friendly Changes Regarding Interns and Volunteers

On January 5, 2018, the Department of Labor announced two employer-friendly changes applicable to interns and volunteers. Specifically, the DOL has adopted an employer-friendly approach to internships and has reinstated a...more

“I’m Just an Intern!” DOL Changes Course and Adopts Primary Beneficiary Standard for Intern Compensation Cases

Determining when an unpaid intern is really an employee has been a moving target for the last several years. However, on January 5, 2018, the Department of Labor announced that its Wage and Hour Division will now use the...more

The Waiting Is the Hardest Part: Fifth Circuit Rules on Compensability of Pre-Shift Wait Time

While the Portal-to-Portal Act sounds more like a science fiction movie than a wage statute, it comes into play every day for hourly employees. Enacted in 1947 in response to litigation following the relatively new (at the...more

Emotional Rescue: Fifth Circuit Recognizes Mental Distress Damages in FLSA Retaliation Claim

Can a plaintiff get emotional distress damages in a wage and hour claim? In December 2016, the Fifth Circuit issued an opinion of first impression where it found that a plaintiff filing a retaliation claim as part of an...more

West Coast—Time to Check Your Employment Agreements: Ninth Circuit Negates No-Class Action Clause in Arbitration Agreements

This week, the Ninth Circuit held that Ernst & Young’s (E&Y) arbitration agreement that prohibited its employees from filing class actions violates the National Labor Relations Act (NLRA). E&Y required as a condition of...more

Hit by the Pitch: Federal Judge De-Certifies FLSA Class Action of Minor League Baseball Players

In a 100+ page opinion, federal Magistrate Judge Joseph Spero of the Northern District of California refused to grant the Plaintiffs’ motion to certify a class of minor league baseball players and instead granted the baseball...more

Sixth Circuit Takes the Bait: Worm Farm Employees Fit Under FLSA Agricultural Exemption for Overtime

Providing legal scholars nationwide a unique opportunity to opine on worm-farming, the Sixth Circuit Court of Appeals held on Friday, October 2, that farm workers involved in the growing of bait worms are exempt overtime...more

Somebody Get Me an Intern!—Second Circuit Overturns “Black Swan” FLSA Case

Last week, the Second Circuit Court of Appeals vacated a lower court decision that certain unpaid interns had to be paid for their work in the entertainment industry. The district court had held that Fox Searchlight Pictures...more

The Internship 2: Now Paid? Viacom Pays Record Settlement on Intern Lawsuit

Viacom recently announced a settlement of $7.2 million dollars to end litigation by numerous unpaid interns for the Company’s television networks. In 2013, two former interns sued Viacom claiming that it violated the Fair...more

Better Warn Santa’s Elves—US Supreme Court Rules that Amazon Does Not Have to Pay Workers to Stand in Security Line at the End of...

Yesterday, the U.S. Supreme Court unanimously held that Amazon does not have to pay its temporary warehouse workers for the time that they spend waiting in line to go through security checks as they leave the facilities. The...more

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