Articles Posted in FLSA

Lev Craig

On May 2, 2017, the Republican-majority U.S. House of Representatives passed H.R. 1180, or the “Working Families Flexibility Act.” The bill, which will now move to the U.S. Senate for consideration, would amend the Fair Labor Standards Act (FLSA) to enable employers to offer employees accrued paid time off for overtime hours worked, in place of cash wages.

The act would amend § 207 of the FLSA to add a provision stating that “[a]n employee may receive, […] in lieu of monetary overtime compensation, compensatory time off at a rate not less than one and one-half hours for each hour of employment for which overtime compensation is required.” In other words, the law would allow employees to choose between receiving overtime premium pay and accruing compensatory time off, or “comp time,” for any hours worked over 40 in a work week. According to the terms of the bill, employers cannot force employees to accrue comp time rather than receive overtime pay, and the employer and employee must enter into a written agreement in order for the employee to use the comp time option. Employees’ accrued comp time would be capped at 160 hours, which the employee would be allowed to cash out for its monetary value at any time, and employers would be required to pay employees the cash value of any unused time at the end of the year.

Lev Craig

Last week, a Texas federal district court granted a temporary injunction in State of Nevada v. U.S. Department of Labor, blocking the implementation of a new Department of Labor (DOL) overtime regulation that was previously scheduled to go into effect today, December 1, 2016.

The new regulation was developed in response to a 2014 directive from President Obama to the Secretary of Labor, instructing the DOL to revise federal regulations for executive, administrative, and professional overtime exemptions, aiming to ensure that the salary threshold for these exemptions—i.e., the minimum annual salary an employee must make before they could possibly be considered “exempt” from overtime requirements—more accurately reflected current income distribution.

Edgar M. Rivera, Esq.

In Smiley v. E.I. DuPont de Nemours & Co., the Court of Appeals for the Third Circuit held that employers could not offset compensation given to their employees for bona fide meal breaks against required overtime.

Plaintiffs filed a putative collective action and class action against DuPont—the world’s fourth largest chemical company—seeking overtime compensation for time they spent donning and doffing their uniforms and protective gear and performing “shift relief” before and after their regularly scheduled shifts. DuPont contended that it could offset compensation it gave plaintiffs for meal breaks during their shift—for which DuPont was not required to provide compensation under the FLSA—against such required overtime. Under the FLSA, an employer must pay its employees for time worked, which does not include bona fide meal breaks.

Owen H. Laird, Esq.

As we have previously discussed, Uber, the multi-billion dollar company behind the eponymous smartphone taxi app, is in a long-term dispute with its drivers over benefits and pay.  This dispute stems from Uber’s classification of its drivers as independent contractors rather than employees.  Last week, a federal court in California threw out a proposed agreement between Uber and its drivers that would have allowed Uber to continue classifying them as independent contractors.

Drivers filed class action lawsuits in Massachusetts and California challenging Uber’s classification.  Earlier this year, Uber reached agreement on the settlement with the two groups of drivers.  Under the terms of the settlement, Uber could continue classifying its drivers as independent contractors, but was required to pay its Massachusetts and California drivers a total of $100 million, allow them to accept tips, and permit them to investigate forming driver collectives.

Edgar M. Rivera, Esq.

In Perez v. The City of New York, the Second Circuit analyzed what factors were relevant for a district court to determine whether an employer must compensate its employee for time spent putting on and taking off (“donning and doffing”) their uniforms.  Vacating the district court’s decision that donning and doffing of uniforms were not compensable activities under the Fair Labor Standards Act (FLSA), the Perez court found that it could not determine as a matter of law that the donning and doffing of uniforms were not “integral and indispensable to [plaintiffs’] principal activities.”  Plaintiffs, Assistant Urban Park Rangers, claim that defendants—the Parks Department and its Commissioner, along with the City of New York and Mayor de Blasio—provided inadequate compensations for their work by, among things, failing to pay wages for time spent donning and doffing their uniforms before and after each shift.

Assistant Urban Park Rangers are required to wear uniforms comprising both professional clothing and equipment.  The professional clothing includes “olive drab” pants and jacket, ranger-style hats, and various Parks Department insignias; the equipment includes a bulletproof vest and a utility belt holding handcuffs, gloves, a radio, a flashlight, a baton, a can of mace, a summons book, and a tape recorder.  The plaintiffs estimate that to don and doff those uniforms takes five to thirty minutes each day.

Owen H. Laird, Esq.

Anyone living in the United States at the moment is undoubtedly aware that the 2016 election season is in full swing. This week, the news has been dominated by the Republican National Convention in Cleveland. On Tuesday night, the theme of the Convention was – ostensibly – “Make America Work Again.” Despite the stated theme, the speakers rarely touched on economic policies or issues, instead preferring to resort to the same attacks against Democratic nominee Hillary Clinton ­– private email server, Benghazi, etc. – that were made the night before.

On the few occasions where the Convention speakers did touch on economic issues, they primarily bemoaned the state of the “middle class worker” in America. According to the speakers, the problem facing middle class American workers is that “regulation” is choking the economy and preventing American business owners from doing whatever they need to in order to create jobs.

Owen H. Laird, Esq.

For New Yorkers, both the Fair Labor Standards Act (FLSA) and New York Labor Law provide employees with rights to a minimum wage and, in many cases, overtime pay. However, many workers in New York still do not receive the pay to which they are entitled; for instance, employers may under-report employees’ hours, improperly withhold wages or tips, or simply pay a wage lower than the State minimum.

However, many employees choose to let these violations go because they are “minimal.” An employer might underpay an employee for by a half hour for each pay period, a loss that might only amount to a few dollars a month. The employee could hesitate to pursue those lost wages, afraid of upsetting things at work or doubtful that they can find a lawyer to pursue a smaller case. Despite these potential concerns, employees who believe they are being illegally underpaid should not be afraid.

Lucie Riviere and Owen H. Laird, Esq.

On February 16, 2016, U.S. District Judge William T. Lawrence of the Southern District of Indiana held that the Fair Labor Standards Act (“FLSA”), the federal labor law that prohibits employers from paying their employees less than minimum wage, did not cover college athletes.

In Berger v. National Collegiate Athletic Association, the three plaintiffs, members of the University of Pennsylvania (“Penn”) women’s track and field team, alleged that they were entitled to be paid at least the minimum wage for the work they performed as student athletes (e.g. practicing, playing in games, appearing at events, etc.). They argued that, by virtue of being on the team, they were Penn’s employees for purposes of the FLSA because they performed work for their universities for no academic credit, like students participants in work-study program. The plaintiffs sought an order from the Court allowing a collective action with a class of “[a]ll current and former National Collegiate Athletic Association (“NCAA”) Division I student athletes on NCAA women’s and men’s sports rosters for the [Defendant schools] . . . from academic year 2012-13 to the present” against Penn as well as the NCAA and the 123 NCAA Division I Member Schools.

Jennifer Melendez

On September 22, 2015, Texas-based oil and gas services provider Halliburton agreed to pay over $18 million to 1,000 of its nationwide employees following an investigation by the U.S. Department of Labor (DOL). The DOL is a  federal agency tasked with enforcing the Fair Labor Standards Act (FLSA). The FLSA requires that covered employees receive overtime pay for all hours worked above 40 hours in the workweek.

Halliburton is one of the largest oil and gas providers in the energy industry and employs over 70,000 employees. In an investigation intended to crack down on oil and gas companies that are non compliant with the FLSA, the DOL discovered that Halliburton misclassfied 1,000 of its employees as exempt from overtime pay. These employees included field service representatives, pipe recovery specialists, drilling tech advisors, perforating specialists and reliability tech specialists. Halliburton also neglected to keep records of hours worked by those employees. Failing to keep accurate records of employees’ hours and misclassifying employees as exempt from overtime are violations of the FLSA.  According to the DOL, in order to be exempt from overtime, a position generally must meet specific job criteria and have a salary of no less than $455 a week. Secretary of Labor, Thomas Perez, stated:

Owen H. Laird, Esq.

The most publicized labor and employment disputes in America are those that take place between athletes and the entities that they play for. An unfathomable amount of ink has been spilled discussing Tom Brady’s four-game suspension from the NFL and the federal lawsuit that overturned it, NBA and NHL lockouts, and Major League Baseball’s steroid suspensions. While all these events are coated in the sheen of sport and celebrity, they are essentially labor and employment issues faced by workers everyday: workplace discipline, collective bargaining, and drug testing.

The most recent athletics-related employment issue to grab headlines was the 9th Circuit Court’s decision regarding compensation for college athletes. Currently, rules promulgated by the NCAA – the governing body overseeing the vast majority of intercollegiate athletics – prohibit athlete compensation outside of scholarships. That is, colleges and universities are only allowed to pay for their athletes’ tuition and accompanying academic expenses; they cannot provide wages or other financial benefits. NCAA athletics, particularly college football and college basketball, generate billions of dollars of revenue each year, which is divided between broadcasters, coaches – most notably the head football and basketball coaches who are often the highest paid public employees in their respective states, videogame companies, and academic institutions, to name a few, but not – apart from scholarships – to the athletes themselves. The NCAA argues that amateurism is fundamental to its product; if college athletes were paid, it would irrevocably harm the marketability of college sport. The NCAA rests its arguments on the ideal of the “student-athlete” who is a student first and an athlete second, and whose primary concern is receiving an education. This contention is belied by colleges’ and universities’ efforts to ensure that their athletes remain eligible to compete – for example, arranging for star athletes to receive passing grades with minimal to academic work – avoiding the academic hurdles faced by the rest of the student body.