Wage and Hour Defense Blog

There is a substantial difference between the definition of "hours worked" adopted by the California Division of Labor Standards Enforcement ("DLSE") and that used by the Department of Labor ("DOL") under the FLSA. Under California law, it is generally only necessary that the worker be subject to the "control of the employer" or "all the time the employee is suffered or permitted to work" in order to be entitled to pay. These two phrases operate independently of each other, so that if time falls into either category, it must be counted as hours worked.

In the current economic downturn, competition for desirable positions of employment is keen. Ambitious job seekers may approach an employer asking for an unpaid position to gain experience, skills and contacts. While such a relationship may prove mutually advantageous, employers should remember that the DOL recently emphasized the FLSA's compensation requirements apply to employees who are required or allowed to work. The terms "to suffer or permit to work" have been construed expansively in order to effectuate the broad remedial purposes of the Act.

The Pension Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (the "Act"), significantly impacting the delivery of health care, also amends the Fair Labor Standards Act ("FLSA"). The FLSA amendments impose certain employer responsibilities in providing health care benefits, confer whistleblower protections and authorize the U.S. Department of Labor ("DOL") to undertake increased enforcement related to health care. Employers have new requirements to learn, and to implement, under the FLSA, irrespective of their size or the number of employees in their workforce

On April 1, 2010, Secretary of Labor Hilda Solis announced a new campaign entitled "We Can Help," aimed at assisting low income workers in reporting wage and hour violations to the Department of Labor.    The campaign consists of a new website and 1-800 number, combined with bilingual public service announcements by celebrities such as Esai Morales and Jimmy Smits.

The campaign is primarily targeted at employees in the construction, food service, janitorial, hospitality and health care fields.  Employers in these targeted industries should be congnizant of these stepped up ...

In a recently reported case, Applebee's' servers alleged they spent a "substantial" amount of time performing non-tipped work, such as cleaning and maintenance, and should be paid the minimum wage 29 U.S.C § 206(A)(1)(c) of $7.25 rather than the direct wage 29 U.S.C. § 203(m) of $2.13 the FLSA 29 U.S.C. § 203(t) allows 29 C.F.R. § 516.28 tipped employees.

The New York State Department of Labor ("DOL") has recently made available important new information for employers regarding their obligations under Section 195.1 of the Labor Law including notice of pay rates, pay dates and other information.

As we previously reported (see EBG Client Alerts of December 11, and October 30, 2009), pursuant to Section 195.1 of the Labor Law (the "Statute"), as of October 26, 2009, employers must provide newly hired New York employees with written notice of their: (1) pay rate; (2) overtime pay rate (if they qualify for overtime pay); and (3) regular ...

Another luxury New York hotel is the latest target in a constant stream of wage and hour class actions against the hotel and restaurant industry challenging the industry's practices relating to tip pools and service charges.

by Michael Kun

    The California wage-hour epidemic has entered its second decade.

    While there is little on the horizon to suggest that these cases are about to come to an end, there are a few glimmers of hope now. 

    The first glimmer of hope comes from a case that has been pending before the California Supreme Court since 2008.  California employers continue to await a ruling on meal and rest breaks from the California Supreme Court in Brinker.  A ruling that breaks need only be "made available," not "ensured," may not put an end to meal and rest break class actions, but it should slow them down ...

Florida led the nation in Fair Labor Standards Act lawsuits in 2009. Statistics generated from PACER (Public Access to Court Electronic Records) show that about 2000 new cases were filed in United States District Courts in Florida last year, far more than in any other state.

In a landmark decision upholding the validity of the employer's mandatory tip pool, on February 23, 2010, the U.S. Court of Appeals for the Ninth Circuit issued its opinion in Misty Cumbie v. Woody Woo, Inc. No. 08-35718. The court held that where the employer paid a direct wage of at least minimum wage to restaurant wait staff, requiring them to participate in a tip-pooling arrangement with other restaurant employees does not violate the Fair Labor Standards Act. ("FLSA")..