Fair Labor Standards Act (FLSA)

Summary Judgment Affirmed for Employer Using Monday-Sunday Workweek to Calculate Overtime

Posted on August 15, 2014

Last month, the Fifth Circuit Court of Appeals faced the question of whether the Fair Labor Standards Act (“FLSA”), an employer has to use a certain workweek to maximize overtime for employees. The Fifth Circuit ruled that there is no such obligation on an employer. Johnson v. Heckmann Water Resources, Inc. No. 13-40824 (July 14, 2014).…


First Circuit Reverses District Court-Per Diem Should Have Been Included in Regular Rate

Posted on May 9, 2014

Overtime under the Fair Labor Standards Act (“FLSA”) is calculated based upon an employee’s regular rate of pay.  But the issue of whether that regular rate of pay includes a per diem can be a challenging one.  Just last month, the First Circuit found that a district court improperly awarded summary judgment to an employer because the per diem paid to employees was based upon based upon and varied with the number of hours worked per week and thus should have been included in the regular rate of pay for purposes of determining overtime. See Newman, et al. v. Advanced Technology Innovation Corp., No. 13-1132 (1st Cir. April 18, 2014).…


United States Supreme Court to Weigh In on Whether Time Spent in Security Screenings is Compensable under FLSA

Posted on March 7, 2014

On Monday, the United States Supreme Court granted cert in a case involving the question of whether time spent by employees working for Amazon.com in security checks at the end of their shifts was compensable under the Fair Labor Standards Act (“FLSA”). In Integrity Staffing Solutions, Inc. v. Busk, No. 11-16892 (9th Cir. 2013), two warehouse workers for a company providing warehouse staffing and space to Amazon.com asserted that their employer had violated the FLSA by failing to properly compensate them, including failing to compensate them for time spent waiting to pass through a security check at the end of their shifts. These plaintiffs alleged that they had to wait up to 25 minutes to be searched and had to remove their wallets, keys and belts and then pass through metal detectors.…


SNOW DAY! Do you have to pay exempt employees?

Posted on February 14, 2014

Even here in Hampton Roads, where we rarely see much snow at all, we have had to confront the various issues that can arise in the workplace during a snowstorm.  Do we close the office? What do we do if we remain open, yet an employee doesn’t come in?  The Department of Labor issued an opinion letter in 2005 (FLSA2005-46) addressing an employer’s question regarding deductions from pay in the event of an employee’s absence due to adverse weather conditions. Basically, if an employee is exempt under the Fair Labor Standards Act (“FLSA”) and the employer makes the decision to close the workplace because of a snowstorm, that exempt employee must be paid for the full week, without any deductions.  However, if an exempt employee does not come into work because of adverse weather conditions even though the workplace remains open, a deduction to his or her salary can be taken, but only if he or she is absent for a full day.…


Outside Sales Exemption Applies to Mortgage Loan Officer

Posted on February 7, 2014

Exemptions under the Fair Labor Standards Act (“FLSA”) continue to be the source of much litigation in our district and across the country.   Last month, the Eastern District of Virginia tackled the outside salesperson exemption and found that a mortgage loan officer qualified for the exemption, even though she spent only about 25-30% of time out of the office selling and didn’t necessarily close deals outside of the office.  See Hartman v. Prospect Mortgage, LLC, Case No. 1:13cv1432 (E.D. Va. January 7, 2014).…


Retaliation Claims–Beware the Trickle-Down Effect of the “Wishes of the King”

Posted on January 15, 2014

Generally speaking, when an employee clearly violates established policy, employers feel pretty comfortable terminating that employee, regardless of his past complaints of discrimination or about overtime, particularly where other employees have been fired for violating the same policy.  Not so fast, warns the First Circuit in Travers v. Flight Services & Systems, Inc., 2013 U.S. App. LEXIS 24706 (1st Cir. 2013). Joseph Travers was a skycap employed by Flight Services & Systems, Inc., which provided services to JetBlue.  Travers filed a lawsuit alleging Fair Labor Standards Act (FLSA) violations against JetBlue in April 2008 and then amended the complaint to include his employer as a defendant about a year later.  The CEO of Flight Services was very vocal in his disdain for Travers and the legal action he had taken and, according to Travers’ supervisor, repeatedly told the supervisor to get rid of Travers and talk him into dropping the lawsuit.  In September 2010, while the motion to conditionally certify the FLSA case in Travers’ case was still pending, Flight Services received a complaint about Travers from a customer.  She reported that Travers had solicited her for a tip.  Flight Services’ employee handbook specifically bars the solicitation of tips.  Travers was first suspended pending investigation and then terminated by a general manager, with the approval of the Director of Human Resources.  Travers filed another lawsuit asserting retaliation.…

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