Since last spring, we have been following developments in the oft-delayed Fair Labor Standards Act (FLSA) regulations rewrite by the Department of Labor (DOL). Yesterday, we received word that the DOL has completed a draft of the new regulations and sent them to the Office of Management and Budget’s Office of Information and Regulatory Affairs
Wage and Hour Basics Series: Penalties for FLSA Non-Compliance
Periodically this year, we have discussed some of the fundamentals of wage and hour law, starting with a general review of the white collar exemptions. We will continue to periodically review some of the more fundamental concepts of the FLSA, including a comprehensive review of the new FLSA exemption rules that we expect the
Not Every Employee is Covered by the FLSA, But You’re Not Off the Hook Just Yet
If you read this blog, attend presentations on wage and hour issues, or just shudder every time you read about another overtime or minimum wage lawsuit, you might assume that all employees are covered by the federal Fair Labor Standards Act (FLSA) and its regulations. However, in some rare circumstances, the FLSA may not cover very small and, importantly, local businesses, meaning that those businesses’ employees may not be entitled to the minimum wage or overtime pay under the FLSA. A quick warning before we start: as we have highlighted in the past, though, most states and an increasing number of local governments do not provide exemptions from state and local minimum wage laws, even for small businesses. With a very few exceptions, the fact that the FLSA does not apply only resolves one half of the question; you almost certainly still have to contend (and comply) with state and local laws, that may have different standards and penalties.
Setting aside state and local issues for a moment, the FLSA provides two different ways for coverage to apply: and “enterprise coverage” and “individual coverage.” Setting aside more complex corporate structures that can implicate “joint employer” or similar tests, both coverage tests are straightforward. For most businesses, the FLSA’s enterprise coverage provisions will apply if the business meets two tests. First, the business must be involved in interstate commerce. Second, the business’s gross annual revenue must be at least $500,000. If a business meets both tests, then all employees working for the business are covered, regardless of whether they ever engage in interstate commerce. Notwithstanding these limits, the FLSA also automatically covers some businesses, such as schools, hospitals, nursing homes, or other residential care facilities as well as all governmental entities (regardless of the level of government), no matter how big or small.Continue Reading Not Every Employee is Covered by the FLSA, But You’re Not Off the Hook Just Yet
A Wolf in Sheep’s Clothing is Still a Wolf: The FLSA Regular Rate and Breach of Contract
Recently, I read about a construction contractor in Los Angeles caught in the middle of litigation between its subcontractors and the city, on behalf of the subcontractor’s former employees. According to the employees, the subcontractors had allegedly promised to pay them the prevailing wage for that area of $49.00 per hour, but had only paid
Second, Third Circuits Tighten FLSA Pleading Standards, Challenge “Barebones” Complaints
Apologies to John Steinbeck, but in some ways, both 2013 and 2014 have been the winters of FLSA plaintiffs’ discontent on the East Coast. Last summer, the Second Circuit (which covers New York, Connecticut, and Vermont) issued a number of decisions tightening pleading standards under the Supreme Court’s decisions in Iqbal and Twombly. In
Good Things Come To Those Who Document Good Wage & Hour Practices
Remember those Guinness commercials from the early 2000s with the tagline “Good things come to those who wait” (or maybe, if you predate the no-mess squeeze bottles, you remember the Heinz ketchup commercials with the same tagline from the 1980s)? In wage and hour law, good things come to those who document good wage and
Can We Define “Full Time” to Mean Something Less Than 40 Hours Per Week?
Q. Under the Fair Labor Standards Act (FLSA), do we have to define “full time” to mean 40 hours per week, or is that left to employers’ discretion? Can we maintain a 40-hour standard for wage and hour purposes, but have a lower threshold for certain benefits, like paid time off accrual or supplementary health
Looking into My Crystal Ball at the Future of FLSA Regulations
Last month, I wrote about the Obama Administration’s Presidential Memorandum to the U.S. Department of Labor (DOL) instructing its Secretary to update regulations regarding overtime protection for workers under the Fair Labor Standards Act (FLSA), the federal law that establishes minimum wage and overtime pay requirements. Since then, DOL Secretary Perez has spoken publicly about
Will Comp Time Become a Reality for the Private Sector?
On May 8, the House of Representatives passed a bill that would allow private sector employers to offer hourly workers the option of taking compensatory (“comp”) time in lieu of paid overtime. The bill seeks to amend the Fair Labor Standards Act to allow private sector employers to offer comp time at a rate of
Supreme Court Holds that “Mere Presence” of FLSA Collective-Action Claims Cannot Save a Lawsuit Where Named Plaintiff’s Individual Claims Are Moot
Guest Author: Lindsey Marcus
Some good news for employers. In a recent 5-4 opinion, the U.S. Supreme Court held that collective-action claims brought under the Fair Labor Standards Act (FLSA) are moot when the named plaintiff has no continuing personal interest in the outcome of the lawsuit and no motion for conditional certification has been