Fair Labor Standards Act (FLSA)

Training Time—Compensable or Not?

Posted on May 4, 2016

The Situation: You have a new business that will require a number of employees with a particular skill set. You find a way to get a local community college to offer a free training course focused on this particular skill.  At the conclusion of the course, you open for business.  Can the employees make a claim that they should have been paid for the time spent learning the skill at the community college?…

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Millions in Damages for Unpaid Bathroom Breaks?

Posted on January 6, 2016

The Situation: Your policy requires that each employee log in and out of his computer whenever taking any sort of break. Employees are then paid just for the time they are logged into their computers. Is this okay?…

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Your Employees Agreed to Comply with the Employee Handbook—So Can’t You Hold Them to it?

Posted on December 16, 2015

The Situation: Your employee handbook requires that employees submit all employment issues to an internal dispute resolution process and then arbitration and provides that employees waive all rights to bring a lawsuit and to a jury trial. You provide a copy of the employee handbook to all employees and require that they sign a statement explicitly acknowledging receipt of the handbook and agreeing to comply with its terms. Can an employee then get around the arbitration provision and file a lawsuit?…

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Travel to Break Area Makes Meal Break Compensable

Posted on September 18, 2015

Generally, employers feel pretty comfortable considering a thirty minute meal break non-compensable under the FLSA, as long as workers are not required to perform any work duties during that time. But what if the workers have to travel to get to where they can eat? Can that travel time end up making the meal break compensable? Earlier this week, the Fifth Circuit decided it might. Naylor, et al. v. Securiguard, Inc., et al., Case. No. 14-60637 (5th Cir. 2015).…

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DOL casts wider net for misclassified independent contractors

Posted on July 17, 2015

The DOL is continuing in its initiative to address misclassification and make sure there are more employees and less independent contractors in the future. The Wage and Hour Division of the DOL issued Administrator’s Interpretation 2015-1: The Application of the Fair Labor Standards Act’s “Suffer or Permit” Standard in the Identification of Employees Who Are Misclassified as Independent Contractors on Wednesday, July 15, 2015.…

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Big changes in overtime proposed

Posted on July 6, 2015

Earlier this week, the Department of Labor announced a proposed rule that will greatly expand overtime protections. One of the significant changes is that the white collar exemptions will no longer be applicable to a large group of salaried employees--those making less than $50,440 on an annual basis.…

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But we didn’t tell him to work off the clock -do we still have to pay overtime?

Posted on May 29, 2015

Many employers have been faced with this situation. An employee who is classified as non-exempt and so entitled to overtime decides to do some work from his home computer at night—maybe to score some brownie points with a hard-to-please supervisor or maybe to make up for a failure to get enough done during the workday. Or an employee clocks out, but then sticks around and helps some friends on the next shift get some things done. Regardless of the reason, if an employee voluntarily decides to do some work off the clock and management knows about it, unless he qualifies for an exemption under the FLSA, an employer must pay him—and at the overtime rate for hours that exceed forty in a week.…

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The Second Circuit agrees–an oral complaint to a supervisor may support a retaliation complaint under the FLSA

Posted on May 22, 2015

Back in 2011, the Supreme Court ruled that an oral complaint can serve as the grounds for a retaliation claim under the FLSA. See Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011). But in Kasten, the oral complaint was made to a government agency and so the question still remained—what about an oral complaint to a supervisor? In a recent decision, the Second Circuit Court of Appeals joined other circuits (including the Fourth Circuit) and decided that yes, even an oral complaint to a supervisor can provide the foundation for a retaliation claim under the FLSA—as long as it is sufficiently clear and detailed for a reasonable employer to understand it as an assertion of rights protected by the statute and a call for their protection. Greathouse v. JHS Security Inc., No. 12-4521 (April 20, 2015).…

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New guidance from DOL regarding workplace violence

Posted on April 3, 2015

Based on a continuing problem of violence in the workplace, the DOL has issued updated guidance related to this important topic. According to the press release announcing the issuance of the new guidelines, the Bureau of Labor Statistics reported that more than 23,000 significant injuries in 2013 occurred due to assaults in the workplace—and 70% of these were in the healthcare and social service settings. The guidance offers best practices and provides effective ways to minimize the risk of violence in healthcare and social service settings where it has been found that workers are four times more likely to suffer violence than the average sector worker. The guidance focuses on five settings: hospital settings, residential treatment, non-residential treatment/services, community care and field work. These updated guidelines can be found here: https://www.osha.gov/Publications/osha3148.pdf…

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Supreme Court Agrees with DOL Regarding Interpretation of FLSA Regulations

Posted on March 13, 2015

As all employers are aware, the application of white collar exemptions under the FLSA can be particularly tricky. The DOL issues interpretive rules relating to the FLSA regulations, which provide guidance to employers in applying these exemptions. In a recent decision, the United States Supreme Court tackled the question of what the DOL has to do when it wishes to change its interpretive rules relating to a particular exemption. Ultimately, in a decision issued on March 9, 2015, the Supreme Court ended up siding with the DOL and ruling that a federal agency does not have to go through the “notice-and-comment rulemaking” procedure pursuant to the Administrative Procedure Act in order to change its interpretation of a regulation. Perez v. Mortgage Bankers Ass’n, 575 U.S. ___ (2015).…

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