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Foley & Lardner Labor and Employment Law Weekly Update (Week of July 18, 2011)

Serving Two Masters Can Trigger Overtime Claims By Gregory W. McClune While it has been said that "no one can serve two masters," in our modern society many people work for two or more employers at the same time. This multiple employment can have significant consequences under...

New Jersey Adopts The Federal Regulations Concerning Exemptions From Overtime Pay Laws

On September 6, 2011, the New Jersey Department of Labor and Workforce Development repealed its existing rules governing exemptions from overtime pay requirements for executive, administrative, professional and outside sales employees, and instead adopted by reference the analogous regulations issued...

Just Because You Are Thankful You Have a Job, Don’t Let Your Employer Steal from You

More and more in this increasingly competitive retail world, companies are requiring their employees to work long shifts, overnight shift, and holidays. This year, some retailers like Macy's, Toys 'R Us, Wal-Mart and Target are getting a jump on Black Friday by opening at midnight or earlier...

When Your Employee Works OT on the QT, Must You Pay It?

That was the question that the Seventh Circuit Court of Appeals faced in an opinion released yesterday. If you don't know, then you don't pay. The Fair Labor Standards Act (FLSA), among other things, establishes minimum wage and overtime pay standards affecting employees in the private...

Proposed Federal Rules Would Require Third-Party Employers Of Domestic Workers To Pay Overtime Compensation

Proposed Rules Would Increase Overtime Pay For Live-In Domestic Workers in New York State The federal Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (the "FLSA"), and its implementing regulations, 29 C.F.R. §§ 510 et seq. , mandate that most workers in the U.S....

Southern District of New York Awards Emotional Distress Damages of $500,000 To Domestic Worker In Unpaid Overtime Case

In March 2012, in Gurung v. Malhotra , 10 Civ. 5086 (S.D.N.Y. Mar. 16, 2012) , the U.S. District Court for the Southern District of New York (Marrero, J.) awarded, to a 22-year-old domestic worker, damages of $1,458,335 against the maid's former employers - an Indian diplomat and her husband...

We Love Our Phones, but Should Employees Be Paid for Using Them Off-Duty?

True confession time. I have a Pavlovian response to the new message chime on my iPhone. I can't help myself. When my phone beeps, I reach for it. I have no choice. I'm an exempt employee, which means that I am paid a weekly salary, with no eligibility for overtime, regardless of how many...

Department of Labor Expands Wage and Hour Laws to Home Care Workers

Do you employ home health aides, personal care aides, or certified nursing assistants? Do you pay them less than the minimum wage, or less than time-and-a-half for any hours worked in excess of 40 in a week? If so, then you will need to make a big change to your pay practices beginning January 1, 2015...

Three Minor Leaguers Claim Major League Baseball Violated the Fair Labor Standards Act

When you think of minor league baseball, you may draw on movies like Bull Durham or The Rookie ; long bus trips from stadium to stadium where teams play in front of small crowds for small pay. Well, apparently, the pay may be small enough to trigger a violation of the Fair Labor Standards Act As...

What Is It Exactly That President Obama Wants to Do to the FLSA?

So, by now, you've likely read the news, first reported on Wednesday night by The New York Times reporters Michael Shear and Steven Greenhouse that "Obama Will Seek Broad Expansion of Overtime Pay" . Messrs. Shear and Greenhouse indicated that, yesterday, President Barack Obama was to...

6th Circuit Rules in Favor of Nonprofit on Discrimination Claim Brought by Volunteers

In Bryson v. Middlefield Volunteer Fire Dep’t , the 6th Circuit held that a “volunteer” can qualify as an employee covered by Title VII under certain limited circumstances. In making that determination, a court must examine not only whether the volunteer is paid, but also the degree...

Stopping Wage Theft Easier Said Than Done

by Rich Ehisen When Dana's boss first told her he wanted her to call the staff of their newly-minted medical office in a small California town together for an afternoon meeting, she was in no way prepared for the reason he gave her: that from then on he would not be paying any of them for working...

Just How Nervous Should Companies Be About FLSA Lawsuits Over Employee Smartphone Use? (Hint: Very)

“ Once is happenstance . Twice is coincidence . Three times is enemy action.” (I’m pretty sure that was from Ferris Bueller) Yesterday, in the Wall Street Journal, I read Lauren Weber’s article “ Can You Sue the Boss for Making You Answer Late-Night Email? ”...

The Sixth Circuit and Overtime: Uh Oh

In Moran v. Al Basit LLC , the 6th Circuit posed the question of whether plaintiff's testimony is sufficient to defeat a motion for summary judgment where plaintiff presented no other evidence with respect to the amount of overtime he worked [an enhanced version of this opinion is available to lexis...

They're Heeeeerrrre - New Proposed FLSA Overtime Regs

At long last, today is the day. President Obama will announce the new proposed overtime regulations. You can read the Notice of Proposed Rulemaking here . This will take me some time to read through. After reading the executive summary, the main thrust is raising the minimum salary requirement for...

New Overtime Regulations Will Impact Five Million Workers

For the first time in over a decade, the Department of Labor proposed updates today to the federal Fair Labor Standards Act (“FLSA”) white collar overtime regulations. These changes will impact businesses throughout the United States . The Department estimates that, in the first year, 4.6...

Classifying Employees as Exempt from Overtime May Become a Lot More Costly

This week, the Department of Labor announced proposed changes to the white-collar overtime exemptions under the Fair Labor Standards Act ("FLSA"). If enacted, these changes will significantly impact employers. To qualify as exempt from overtime under federal law, employees currently must be...

DOL’s New Overtime Rules – How Will The Proposed Regulations Impact Your Business?

by Michael B. Steele The speculation is over -- on June 30, 2015, the U.S. Department of Labor (DOL) published its long-awaited Notice of Proposed Rulemaking (NPRM) regarding overtime exemptions, after several missed release dates. The NPRM is in response to President Obama’s March 13, 2014...

60-Day Public Comment Period Commences On Proposed FLSA Overtime Exemption Rule Changes

by Marlene Nicolas , Rachel Tischler and Danielle Thompson* On Monday, July 6, 2015, in response to a March 2014 executive order signed by President Obama, the Department of Labor (“Department”) published a Notice of Proposed Rulemaking (“NPRM”) that will more than double the...

Evaluating the Impact of USDOL's Salary Proposal

by John E. Thompson The U.S. Labor Department has of course proposed a substantial increase in the minimum salary amount required to meet the basic compensation criterion for an executive, administrative, professional, or a derivative exemption under the federal Fair Labor Standards Act's Section...

By Hiking Salary Level For FLSA Exemptions Instead of Revising Complex “Duties Tests,” DOL Takes the Simplest Route to Regulatory Simplification

by Rodney L. Bean When President Obama directed the Department of Labor last year to make its Fair Labor Standards Act overtime regulations simpler for businesses and workers to understand, many observers expected the agency to propose comprehensive revisions to the confusing “duties tests.”...

Comments to Proposed DOL FLSA 13(a)(1) Exemptions Already Being Filed

by John E. Thompson Nearly 1,600 comments have already been posted in response to the U.S. Labor Department's proposals regarding the federal Fair Labor Standards Act's Section 13(a)(1) exemptions. Not surprisingly, there is great concern about the magnitude of the salary increase USDOL has...

Another Viewpoint on Overtime For Undocumented Work Time

In Garcia v. SAR Food of Ohio , an Ohio federal court rejected an employer’s attempt to dismiss an off-the-clock wage-and-hour claim, because, even though the plaintiff had not reported un-clocked as “working time,” a fact issue existed over whether the employer should have known that...

“The Devil Made Me Do It” Is Not a Defense to Insidious Wage-and-Hour Violations

Late last week, the Department of Labor announced that it had filed a wage-and-hour lawsuit against Akron, Ohio, televangelist Ernest Angley and the for-profit buffet his church operates. The allegations are, to put it mildly, ugly. From Ohio.com : • Defendants improperly treated certain workers...

Companionship Exemption Changes in Effect

by Ted Boehm The latest twist in the ongoing saga involving the U.S. Department of Labor's changes in its regulatory provisions affecting the Fair Labor Standard Act's Section 13(a)(15) "companionship" exemption and the FLSA's Section 13(b)(21) overtime exemption for "live...