Wage and Hour Law

A Practice Note discussing increasingly common class actions based on an employer’s failure to recognize and count certain hours worked as compensable. It outlines how employers should minimize risk, paying particular attention to those employee activities that are most frequently the subject of litigation under the Fair Labor Standards Act of 1938 (FLSA) and Portal-to-Portal Act. The Note also suggests that employers should review their own practices, to become aware of the various jurisdiction-specific factors that help determine whether those tasks should be compensated.

A Practice Note discussing the key issues employers face in defending wage and hour collective actions brought under Section 16(b) of the Fair Labor Standards Act (FLSA) (29 U.S.C. § 216(b)). This Note also covers state-law class actions brought under Rule 23 of the Federal Rules of Civil Procedure (FRCP). For more information on state law wage and hour requirements, see the State Q&A Tool under Related Content to the right.

A Note addressing interns, trainees and volunteers under the Fair Labor Standards Act (FLSA). This Note discusses the proper classification of interns, trainees and volunteers under the FLSA, including when they must be paid and best practices for private, for-profit employers. This Note addresses federal law. For information on requirements under state law, see the State Q&A Tool under related content to the right.

A model retention agreement, sometimes referred to as a stay bonus agreement, for a private employer to use when offering an employee a retention bonus for remaining with the employer until a specified date. This retention bonus agreement is based on federal law. This Standard Document has integrated notes with important explanations and drafting tips.

An independent contractor agreement between an independent contractor (a self-employed individual) and a client company for consulting or other services. This Standard Document is drafted in favor of the client company. This Standard Document has integrated notes with important explanations and drafting tips.

An offer letter to be used with an employee paid on a fluctuating workweek basis. This offer letter also can be used as a short-form employment agreement. This Standard Document is intended to be used by private employers with their nonunionized workforce. This Standard Document has integrated notes with important explanations and drafting tips. It is based on federal law. For information on state law requirements, see the State Q&A Tool under Related Content to the right.

An employee policy on pay procedures under the Fair Labor Standards Act (FLSA). It includes policies on payroll practices, payroll deductions, overtime, meal and rest breaks, timekeeping and complaints. It can be incorporated into an employee handbook or used as a stand-alone policy document. This Standard Document applies only to private workplaces. It is based on federal law. State or local law may impose additional or different requirements but this document will be useful and relevant to employers in every state. This Standard Document has integrated notes with important explanations and drafting tips.

A sample secondment letter to be used with an employee being temporarily assigned to work for another entity in the United States, either to another business unit within the employer's organization or externally to another company. This Standard Document is intended to be used by private employers with their nonunionized workforce. This Standard Document has integrated notes with important explanations and drafting tips.

A Checklist to help employers minimize the legal risks presented by employer-sponsored holiday parties. This checklist addresses sexual harassment prevention, avoiding harms created by alcohol consumption, workers' compensation liability, and wage and hour claims. This resource is jurisdiction-neutral. For information on state law requirements, see the State Q&A Tools under Related Content to the right.

This tool enables subscribers to search and compare PLC's Wage and Hour State Q&A resources. Questions and answers cover state-specific exemptions from overtime/minimum wage, compensable time, timing of wage payments, deductions, recordkeeping and more. Simply select the questions and the jurisdictions that you are interested in and click the "Submit" button. To see all of PLC's State Q&As on Wage and Hour Laws, see State Q&A Guide to Wage and Hour Laws. To see all of PLC's State Q&As, including relevant Legal Updates since the publication date (under Related Content), see individual Q&As on the Labor & Employment State Q&As landing page.

A Q&A guide to state law on independent contractor status for private employers in Arizona. This Q&A addresses how independent contractors are classified under state law, including the various tests to evaluate worker status, penalties for misclassification and practices to avoid misclassification. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Independent Contractors: State Q&A Tool).

A Q&A guide to state law on independent contractor status for private employers in California.  This Q&A addresses how independent contractors are classified under state law, including the various tests to evaluate worker status, penalties for misclassification and practices to avoid misclassification. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Independent Contractors: State Q&A Tool). For a recent update on California's agreement with the DOL to reduce misclassification of employees as independent contractors, see the Related Content section on the right-hand side.

A Q&A guide to state law on independent contractor status for private employers in Connecticut.  This Q&A addresses how independent contractors are classified under state law, including the various tests to evaluate worker status, penalties for misclassification and practices to avoid misclassification. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Independent Contractors: State Q&A Tool).

A Q&A guide to state law on independent contractor status for private employers in the District of Columbia.  This Q&A addresses how independent contractors are classified under state law, including the various tests to evaluate worker status, penalties for misclassification and practices to avoid misclassification. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Independent Contractors: State Q&A Tool).

A Q&A guide to state law on independent contractor status for private employers in Georgia.  This Q&A addresses how independent contractors are classified under state law, including the various tests to evaluate worker status, penalties for misclassification and practices to avoid misclassification. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Independent Contractors: State Q&A Tool).

A Q&A guide to state law on independent contractor status for private employers in Illinois.  This Q&A addresses how independent contractors are classified under state law, including the various tests to evaluate worker status, penalties for misclassification and practices to avoid misclassification. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Independent Contractors: State Q&A Tool).

A Q&A guide to state law on independent contractor status for private employers in Iowa. This Q&A addresses how independent contractors are classified under state law, including the various tests to evaluate worker status, penalties for misclassification and practices to avoid misclassification. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Independent Contractors: State Q&A Tool).

A Q&A guide to state law on independent contractor status for private employers in Kentucky. This Q&A addresses how independent contractors are classified under state law, including the various tests to evaluate worker status, penalties for misclassification and practices to avoid misclassification. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Independent Contractors: State Q&A Tool).

A Q&A guide to state law on independent contractor status for private employers in Maine. This Q&A addresses how independent contractors are classified under state law, including the various tests to evaluate worker status, penalties for misclassification and practices to avoid misclassification. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Independent Contractors: State Q&A Tool).

A Q&A guide to state law on independent contractor status for private employers in Massachusetts.  This Q&A addresses how independent contractors are classified under state law, including the various tests to evaluate worker status, penalties for misclassification and practices to avoid misclassification. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Independent Contractors: State Q&A Tool).

A Q&A guide to state law on independent contractor status for private employers in Minnesota. This Q&A addresses how independent contractors are classified under state law, including the various tests to evaluate worker status, penalties for misclassification and practices to avoid misclassification. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Independent Contractors: State Q&A Tool).

A Q&A guide to state law on independent contractor status for private employers in Missouri. This Q&A addresses how independent contractors are classified under state law, including the various tests to evaluate worker status, penalties for misclassification and practices to avoid misclassification. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Independent Contractors: State Q&A Tool).

A Q&A guide to state law on independent contractor status for private employers in Nevada. This Q&A addresses how independent contractors are classified under state law, including the various tests to evaluate worker status, penalties for misclassification and practices to avoid misclassification. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Independent Contractors: State Q&A Tool).

A Q&A guide to state law on independent contractor status for private employers in New Jersey.  This Q&A addresses how independent contractors are classified under state law, including the various tests to evaluate worker status, penalties for misclassification and practices to avoid misclassification. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Independent Contractors: State Q&A Tool).

A Q&A guide to state law on independent contractor status for private employers in North Carolina. This Q&A addresses how independent contractors are classified under state law, including the various tests to evaluate worker status, penalties for misclassification and practices to avoid misclassification. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Independent Contractors: State Q&A Tool).

A Q&A guide to state law on independent contractor status for private employers in Oklahoma. This Q&A addresses how independent contractors are classified under state law, including the various tests to evaluate worker status, penalties for misclassification and practices to avoid misclassification. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Independent Contractors: State Q&A Tool).

A Q&A guide to state law on independent contractor status for private employers in Pennsylvania.  This Q&A addresses how independent contractors are classified under state law, including the various tests to evaluate worker status, penalties for misclassification and practices to avoid misclassification. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Independent Contractors: State Q&A Tool).

A Q&A guide to state law on independent contractor status for private employers in Tennessee.  This Q&A addresses how independent contractors are classified under state law, including the various tests to evaluate worker status, penalties for misclassification and practices to avoid misclassification. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Independent Contractors: State Q&A Tool).

A Q&A guide to state law on independent contractor status for private employers in Utah. This Q&A addresses how independent contractors are classified under state law, including the various tests to evaluate worker status, penalties for misclassification and practices to avoid misclassification. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Independent Contractors: State Q&A Tool).

A Q&A guide to state law on independent contractor status for private employers in Washington. This Q&A addresses how independent contractors are classified under state law, including the various tests to evaluate worker status, penalties for misclassification and practices to avoid misclassification. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Independent Contractors: State Q&A Tool).

A Q&A guide to state law on independent contractor status for private employers in Wisconsin.  This Q&A addresses how independent contractors are classified under state law, including the various tests to evaluate worker status, penalties for misclassification and practices to avoid misclassification. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Independent Contractors: State Q&A Tool).

A Q&A guide to state-specific wage and hour laws for private employers in Arizona. This Q&A addresses nuances of state law, including minimum wage, overtime, exemption and litigation questions. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Wage and Hour Laws: State Q&A Tool).

A Q&A guide to state-specific wage and hour laws for private employers in Colorado. This Q&A addresses nuances of state law, including minimum wage, overtime, exemption and litigation questions. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Wage and Hour Laws: State Q&A Tool). For an update on Colorado's minimum wage increase, see Related Content on the right.

A Q&A guide to state-specific wage and hour laws for private employers in the District of Columbia. This Q&A addresses nuances of state law, including minimum wage, overtime, exemption and litigation questions. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Wage and Hour Laws: State Q&A Tool).

A Q&A guide to state-specific wage and hour laws for private employers in Georgia. This Q&A addresses nuances of state law, including minimum wage, overtime, exemption and litigation questions. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Wage and Hour Laws: State Q&A Tool).

A Q&A guide to state-specific wage and hour laws for private employers in Illinois. This Q&A addresses nuances of state law, including minimum wage, overtime, exemption and litigation questions. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Wage and Hour Laws: State Q&A Tool).

A Q&A guide to state-specific wage and hour laws for private employers in Iowa. This Q&A addresses nuances of state law, including minimum wage, overtime, exemption and litigation questions. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Wage and Hour Laws: State Q&A Tool).

A Q&A guide to state-specific wage and hour laws for private employers in Louisiana. This Q&A addresses nuances of state law, including minimum wage, overtime, exemption and litigation questions. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Wage and Hour Laws: State Q&A Tool).

A Q&A guide to state-specific wage and hour laws for private employers in Maryland. This Q&A addresses nuances of state law, including minimum wage, overtime, exemption and litigation questions. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Wage and Hour Laws: State Q&A Tool).

A Q&A guide to state-specific wage and hour laws for private employers in Michigan. This Q&A addresses nuances of state law, including minimum wage, overtime, exemption and litigation questions. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Wage and Hour Laws: State Q&A Tool).

A Q&A guide to state-specific wage and hour laws for private employers in Mississippi. This Q&A addresses nuances of state law, including minimum wage, overtime, exemption and litigation questions. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Wage and Hour Laws: State Q&A Tool).

A Q&A guide to state-specific wage and hour laws for private employers in Nebraska. This Q&A addresses nuances of state law, including minimum wage, overtime, exemption and litigation questions. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Wage and Hour Laws: State Q&A Tool).

A Q&A guide to state-specific wage and hour laws for private employers in New Hampshire. This Q&A addresses nuances of state law, including minimum wage, overtime, exemption and litigation questions. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Wage and Hour Laws: State Q&A Tool).

A Q&A guide to state-specific wage and hour laws for private employers in New York. This Q&A addresses nuances of state law, including minimum wage, overtime, exemption and litigation questions. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Wage and Hour Laws: State Q&A Tool).

A Q&A guide to state-specific wage and hour laws for private employers in Ohio. This Q&A addresses nuances of state law, including minimum wage, overtime, exemption and litigation questions. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Wage and Hour Laws: State Q&A Tool).

A Q&A guide to state-specific wage and hour laws for private employers in Oregon. This Q&A addresses nuances of state law, including minimum wage, overtime, exemption and litigation questions. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Wage and Hour Laws: State Q&A Tool).

A Q&A guide to state-specific wage and hour laws for private employers in South Carolina. This Q&A addresses nuances of state law, including minimum wage, overtime, exemption and litigation questions. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Wage and Hour Laws: State Q&A Tool).

A Q&A guide to state-specific wage and hour laws for private employers in Texas. This Q&A addresses nuances of state law, including minimum wage, overtime, exemption and litigation questions. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Wage and Hour Laws: Q&A Tool).

A Q&A guide to state-specific wage and hour laws for private employers in Virginia. This Q&A addresses nuances of state law, including minimum wage, overtime, exemption and litigation questions. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Wage and Hour Laws: State Q&A Tool).

A Q&A guide to state-specific wage and hour laws for private employers in West Virginia. This Q&A addresses nuances of state law, including minimum wage, overtime, exemption and litigation questions. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Wage and Hour Laws: State Q&A Tool).

An expert Q&A with Douglas Darch of Backer & McKenzie LLP on the implications for employers of the US Supreme Court's decision in Genesis Healthcare Corp. v. Symczyk, holding that an FLSA collective action was properly dismissed after the sole plaintiff's individual claims were rendered moot by the defense's offer of judgment under Federal Rule of Civil Procedure (FRCP) 68.

An expert Q&A with Richard J. Simmons of Sheppard Mullin Richter & Hampton LLP regarding the impact of the California Supreme Court's decision in Brinker Restaurant Corp. v. Superior Court on meal periods, rest breaks, off-the-clock work and class action litigation.  

This Article explains the recent increase in wage and hour investigation activity and provides practical advice on how to respond to an investigation effectively.

Resources to help employers and their counsel ensure that any internship program they create or advise about adheres to legal requirements.

This Law Firm Publication by Jackson Lewis LLP discusses a recently enacted Tennessee law (H.B. 501) that restricts local governments from requiring certain employers to pay a minimum wage or prevailing wage higher than the minimum wage or prevailing wage required by applicable state or federal law. Among other things, H.B. 501 also restricts local governments from requiring certain employers to provide greater leave policies or health insurance benefits to employers than required by applicable state or federal law, and prohibits local governments from adopting or maintaining laws addressing wage theft.

The Department of Labor (DOL) issued Technical Release 2013-02, which provides temporary guidance and model notices addressing health care reform's notice of exchange requirement under Section 18B of the Fair Labor Standards Act (FLSA), which requires most employers to inform employees of coverage options available through the health insurance exchanges. The guidance also provides an updated model election notice under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). The election notice is revised to include, among other changes, additional information regarding coverage alternatives offered through the exchanges.

Resources to help employers and their counsel conduct wage and hour audits.

In Gonzalez v. Downtown LA Motors, LP, the California Court of Appeal for the Second District held that automotive service technicians paid for repair work on a "piece-rate" basis must also be paid a separate hourly minimum wage for time spent during their work shifts waiting for vehicles to repair.

In Brian Teed v. Thomas & Betts Power Solutions, the US Court of Appeals for the Seventh Circuit held that an asset purchaser may be liable as a successor for an acquired company's Fair Labor Standards Act (FLSA) violations, even when the purchaser specifically disclaimed that it was assuming the liabilities of the company in receivership when it acquired its assets.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses Avidor v. Sutter’s Place, Inc., in which the California Court of Appeal held that a casino could require card dealers to participate in a tip-pooling arrangement under Section 351 of the California Labor Code. Under Section 351, an employer cannot take any part of the employees' tips, but can require employees to pool their tips if the tips are shared among employees who are not in managerial positions where they may be considered the employer's agents.

In Lamonica v. Safe Hurricane Shutters, Inc., the US Court of Appeals for the Eleventh Circuit held that undocumented foreign workers are employees who may recover unpaid wages under the Fair Labor Standards Act (FLSA). The court found that the US Supreme Court's prior decision in Hoffman Plastic Compounds, Inc. v. NLRB that the National Labor Relations Board (NLRB) could not award backpay to undocumented aliens terminated for union activity in violation of the National Labor Relations Act (NLRA) did not overrule Eleventh Circuit precedent permitting recovery of unpaid wages under the FLSA.

The Internal Revenue Service (IRS) has announced that it has expanded its Voluntary Classification Settlement Program (VCSP), making it possible for many more interested employers to apply. To achieve this expansion, the IRS is modifying the eligibility requirements to allow employers under an IRS audit to qualify for the VCSP, to reduce the special six-year statute of limitations, and to temporarily waive the requirement that employers must have filed required Forms 1099 for workers they wish to reclassify.

In Picerni v. Bilingual SEIT & Preschool Inc., the US District Court for the Eastern District of New York held that parties could settle a Fair Labor Standards Act (FLSA) claim without court approval or DOL supervision.   

In Espenscheid v. DirectSat USA, LLC, the US Court of Appeals for the Seventh Circuit upheld a district court opinion decertifying a proposed class of plaintiffs claiming they were not paid for work performed and were denied overtime pay in violation of the Fair Labor Standards Act (FLSA). In its decision, the court ruled that the same certification analysis applies to collective actions under the FLSA as it does to class actions under Rule 23 of the Federal Rules of Civil Procedure.

The Department of Labor (DOL) issued its final rule implementing statutory amendments to the FMLA regarding leave for military caregivers and airline flight crews made by the National Defense Authorization Act for Fiscal Year 2010 and the Airline Flight Crew Technical Corrections Act.

In Griffin v. S&B Engineers & Constructors, Ltd., the US Court of Appeals for the Fifth Circuit held that the fact that an employer's commuting scheme for employees was mandatory, rather than voluntary, did not automatically render employees' travel time compensable under the Fair Labor Standards Act (FLSA).

This Law Firm Publication by Epstein, Becker & Green, P.C. discusses Garvey v. Kmart Corp., in which the US District Court for the Northern District of California held after a bench trial that Kmart was not required to redesign its cashier and bagging areas to provide seats to comply with California's "suitable seating" requirements. The court recognized that Kmart has a genuine rationale for requiring cashiers to stand relating to safety, image and efficiency. However, the court left open the possibility that another form of seating, "lean-stools," could be consistent with Kmart's job requirements.

This Law Firm Publication by Jackson Lewis LLP discusses state minimum wage increases, effective January 1, 2013, in Arizona, Colorado, Florida, Missouri, Montana, Ohio, Oregon, Rhode Island, Vermont and Washington. It also describes minimum wage increases in several cities, including San Francisco, California.

This Legal Update offers best practices tips for avoiding liability connected to an employer-sponsored holiday party.

The US Court of Appeals for the Sixth Circuit affirmed summary judgment for the employer in White v. Baptist Memorial Health Care Corp., holding that the employer was not liable for unpaid wages under the Fair Labor Standards Act (FLSA) when the employee failed to properly log time worked during unpaid meal breaks. The court further explained that automatic meal deduction systems can be lawful under the FLSA.

This Law Firm Publication by Schnader Harrison Segal & Lewis LLP explains that employers in New Jersey do not have to comply with the new equal pay notice requirement by the November 19, 2012 effective date or 30 days thereafter, because the New Jersey Department of Labor and Workforce Development has not yet formally published the notice. The regulatory process that must precede final publication of the notice will take months, and therefore the notice will not be ready by the effective date. The notice will state that gender-based discrimination is prohibited in pay and the other terms and conditions of employment.

This Law Firm Publication by Jackson Lewis LLP discusses the US District Court for the Southern District of Florida's recent decision in Lewis v. Keiser School, Inc., holding time an employee spent sending work e-mails during her lunch hour was not compensable under the federal Fair Labor Standards Act (FLSA). The court found that the time the employee spent on the work e-mails was de minimis, and despite receiving e-mails from her during lunch, there was no evidence that her employer suffered or permitted her to work off the clock, particularly since the employee indicated she was not working by clocking out for lunch.

The US Court of Appeals for the Eighth Circuit ruled in Abshire v. Redland Energy Services, LLC that an employer did not violate the Fair Labor Standards Act (FLSA) when it changed the workweek designation for certain employees in a manner that reduced their overtime hours.

This Law Firm Publication by Epstein Becker & Green, P.C. discusses the US District Court for the Central District of California's recent holding in Mendoza v. Nordstrom, Inc., that an employer did not violate California's day of rest statute where the plaintiff employees voluntarily worked for more than six days in a row. Similar to the California Supreme Court's decision in Brinker Restaurant Corp. v. Superior Court, the district court noted that while employers must provide employees with a day of rest, they do not have to ensure employees take that day off.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses an amendment to Section 193 of the New York Labor Law that gives employers greater freedom to make deductions from employees' pay. Specifically, the amendment allows employers to make deductions from an employee's wages for the employee's preauthorized personal activities, and to recapture overpayments, loans or advancements made to an employee. Currently, the law prohibits employers from making wage deductions unless a governmental entity authorizes the action or the employee provides written authorization for a deduction that benefits the employee. The new law takes effect on November 7, 2012, but will expire in three years.

This Law Firm Publication by Jackson Lewis LLP discusses California's Senate Bill 1038, which was recently signed by Governor Brown. Effective January 1, 2013, the new law will, among other things, eliminate the California Fair Employment and Housing Commission (FEHC). The FEHC's duties of rulemaking and administrative adjudication of discrimination claims will be mainly assumed by the Department of Fair Employment and Housing (DFEH), which will include a Fair Employment and Housing Council.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C discusses a new Rhode Island law that prohibits employment discrimination on the basis of homelessness. Specifically, employers will be prohibited from discriminating against job applicants or employees who lack a permanent mailing address or use a shelter or agency as a mailing address. The law provides injunctive relief, actual damages and reasonable attorneys' fees to homeless job applicants or employees who experience this form of discrimination. 

This Law Firm Publication by Jackson Lewis LLP discusses the California Court of Appeal's decision in Nelsen v. Legacy Partners Residential, Inc., ruling that an employee must arbitrate her individual wage and hour claims against her employer where an arbitration agreement between the parties was not unconscionable or in violation of public policy. Notably, the court rejected the employee’s argument that the agreement was unenforceable because it violated federal public policy under the National Labor Relations Board's (NLRB) decision in D.R. Horton. The court found that the issues in D.R. Horton were outside the expertise of the NLRB, that the holding had been rejected by at least two other federal courts, and that there was no evidence that the plaintiff in Nelsen was covered by the National Labor Relations Act (NLRA).

On July 12, 2012, the US Court of Appeals for the Second Circuit ruled in Ramos v. Baldor Specialty Foods, Inc. that a group of workers charged with supervising employees at a warehouse are subject to the executive exemption from the overtime pay protections of the Fair Labor Standards Act (FLSA).

This Law Firm Publication by Jackson Lewis LLP explains a recent change to the Pennsylvania Minimum Wage Act that allows employers in the healthcare industry to use the "8/80" overtime rule established by the federal Fair Labor Standards Act (FLSA). This amendment allows healthcare employers to pay employees overtime for hours worked in excess of 8 hours per day or 80 hours in a 14-day period. As with the FLSA, the amendment requires that the employer and employee reach an agreement or understanding as to this method of compensation before performance of the work.

The US Court of Appeals for the Tenth Circuit held in Lederman v. Frontier Fire Protection, Inc. that the preponderance of the evidence standard applies to determine whether an employee is exempt under the Fair Labor Standards Act (FLSA). The court's decision clarifies the appropriate evidentiary standard in light of previous Tenth Circuit decisions that discussed a "plainly and unmistakably" legal standard.

In In re Enterprise Rent-A-Car Wage & Hour Employment Practices Litigation, the US Court of Appeals for the Third Circuit established a new test to determine whether a joint employment relationship exists under the Fair Labor Standards Act of 1938 (FLSA). The "Enterprise test" focuses on the control the potential joint employer exercises over the relevant employees, including the alleged employer's ability to hire employees, issue work rules and maintain control over employee records.

In Mortgage Bankers Ass'n v. Solis, the US District Court for the District of Columbia held that the Department of Labor (DOL) did not violate the Administrative Procedure Act (APA) by changing its interpretation of the applicability of the Fair Labor Standards Act (FLSA) administrative exemption to mortgage loan officers without using the APA's notice and comment process or by issuing an interpretation that conflicts with DOL regulations under the FLSA. In Administrator's Interpretation 2010-1, which stated that that mortgage loan officers are nonexempt employees, the DOL reversed its 2006 position on this issue.

This Law Firm Publication by Jackson Lewis LLP discusses Roach v. Moran Foods, in which a Connecticut Superior Court ruled that Connecticut's wage and hour law permits employers to use the fluctuating workweek method when calculating employee overtime. In concluding that the method complies with state wage and hour law, the court noted that the Connecticut wage statute identifies a specific category of employees, delivery drivers, to whom the fluctuating workweek method does not apply, indicating that the legislature intended it to apply to other employees.

This Law Firm Publication by Constangy Brooks & Smith, LLP, discusses Melia v. Zenhire, Inc., in which the Massachusetts Supreme Judicial Court identified the circumstances when an out-of-state forum selection clause in an employment contract violates the Massachusetts Wage Act. In Melia, the court held that a forum selection clause is a special contract disallowed by the Wage Act when the employee's claim is covered by the Wage Act, the court of the forum state would not apply Massachusetts law, and the employee would be deprived of a substantive right under the Wage Act. 

The US Department of Labor (DOL) has withdrawn a proposed rule that would revise the child labor agricultural hazardous occupations orders.

In Brinker Restaurant Corp. v. Superior Court, the California Supreme Court clarified that employers must provide a 30-minute meal period by making it available to employees, but need not ensure that no work is done during that period. The court also held that hourly employees in California are entitled to paid ten-minute rest breaks at certain intervals, depending on the length of the work shift. 

This Law Firm Publication by Epstein Becker & Green, P.C. discusses wage garnishment in the context of the Tennessee Court of Appeals' decision in Erlanger Medical Center v. Strong. The court relied on guidance found in the US Department of Labor's Field Operations Manual and a Wage and Hour Opinion Letter to hold that tips are not earnings that may be garnished. The publication notes that the decision and the US Department of Labor guidance documents on which it relied may serve as strong persuasive authority in other jurisdictions.

The Department of Labor (DOL) Wage and Hour Division (Wage and Hour Division) has again extended the comment period for its proposed rule expanding minimum wage and overtime protections for domestic caregivers under the Fair Labor Standards Act (FLSA). The Wage and Hour Division extended the comment period until March 21, 2012.  

The Department of Labor (DOL) Wage and Hour Division (Wage and Hour Division) has extended the comment period for its proposed rule expanding minimum wage and overtime protections for domestic caregivers under the Fair Labor Standards Act (FLSA). The Wage and Hour Division extended the comment period to March 12, 2012. 

California became the 12th state to sign a memorandum of understanding with the Department of Labor's Wage and Hour Division to reduce the improper classification of employees as independent contractors.

In Beary Landscaping, Inc. v. Costigan, the United States Court of Appeals for the Seventh Circuit held that the Illinois Department of Labor (IDOL) did not violate the plaintiff contractors' due process rights by using a local collective bargaining agreement's (CBA) wage rates as a proxy for the prevailing wage rates when setting the minimum wage the plaintiffs must pay to employees working on publicly financed construction and demolition projects.

On January 27, 2012, in Minor v. Bostwick Laboratories, Inc., the US Court of Appeals for the Fourth Circuit held that intracompany complaints may constitute protected activity under the Fair Labor Standards Act (FLSA). An employee's complaint falls under the FLSA anti-retaliation provision where it is sufficiently clear and detailed for a reasonable employer to understand it as an assertion of FLSA rights and a call for their protection.

The National Labor Relations Board (NLRB) recently held that requiring employees, as a condition of employment, to sign an arbitration agreement prohibiting them from filing collective or class actions for employment-related claims violates the National Labor Relations Act (NLRA). In its January 3, 2012 decision in D.R. Horton, Inc., the NLRB also held that its decision does not conflict with the Federal Arbitration Act (FAA) and distinguished AT&T Mobility v. Concepcion.

This Jackson Lewis LLP memorandum discusses the form notice for California employers under the California Wage Theft Prevention Act. The state Division of Labor Standards Enforcement (DLSE) issued a notice that employers may use to comply with the new requirements to provide employees with certain wage information at hire. The notice is available in six languages: English, Vietnamese, Chinese, Korean, Spanish and Tagalog.

This Ogletree, Deakins, Nash, Smoak & Stewart, P.C. memorandum discusses the California Supreme Court's December 29, 2011 decision in Harris v. The Superior Court of Los Angeles County, clarifying the administrative employee exemption. The state Supreme Court rejected the "administrative/production worker" dichotomy, holding that the proper test is a two-part test to determine if an employee's work is "directly related" to management policies or general business operations. California courts must consider whether the work is both qualitatively administrative and quantitatively "of substantial importance to the management or operations of business."

A list of new California employment-related laws effective on January 1, 2012 and covering areas such as pay notices, credit checks, pregnancy disability leave and independent contractors, among others.

This Fisher & Phillips memorandum discusses Michael Aleman v. AirTouch Cellular, a putative class action. In this decision, the Court of Appeals of California, Second District held that employees were not entitled to reporting-time pay for attending scheduled store meetings because they were furnished work for at least half the meeting time and paid accordingly. Employees also were not owed one hour of premium pay for working a split-shift because the amount they actually earned in excess of the minimum wage could be accumulated to satisfy the one-hour split-shift premium requirement.

This Jackson Lewis LLP memorandum discusses the increases in the minimum salary requirements for computer professionals in California. As of January 1, 2012, to be exempt from California's overtime law, computer professionals must be paid at least $38.89 per hour, $6,752.19 per month or $81,026.25 per year. Employees must also meet a duties test to qualify for the exemption.

This Ogletree, Deakins, Nash, Smoak & Stewart, P.C. memorandum discusses several new Oregon employment laws effective January 1, 2012. HB 3450 requires employers to include specific disclaimers in arbitration agreements with employees. Under HB 3034, employers must permit employees to take unpaid leave for jury duty rather than requiring the employees to use vacation, sick or annual leave. HB 2828 requires employers with ten or more employees to provide certain insurance coverage to an employee serving as a juror if the employee elects to have coverage continue during this time. HB 2040 clarifies the information a former employee must include in a written notice of non-payment of wages at termination. Under HB 2039, employees can recover statutory damages and attorneys' fees from employers that issue dishonored checks. 

The IRS updated its Frequently Asked Questions page on the Voluntary Classification Settlement Program (VCSP). The VCSP allows employers to voluntarily reclassify current non-employees as employees and is meant to increase tax compliance and improve certainty among employers, employees and the government.

This Jackson Lewis LLP memorandum discusses the November 3, 2011 Arkansas Supreme Court ruling in Douglas v. First Student, Inc. The court unanimously held that the limitations period for overtime claims under the Arkansas Minimum Wage Act is three years. The court rejected the plaintiff's argument, based on earlier Arkansas precedent, that a five-year statute of limitations should apply. This ruling harmonizes the Arkansas statute of limitations with the federal Fair Labor Standards Act (FLSA).    

This Ford & Harrison LLP memorandum discusses the October 19, 2011 Southern District of California ruling in Dilts v. Penske Logistics LLC. The court held that the California trucking industry does not have to comply with California rest and meal break laws. Penske had moved for summary judgment, arguing that it is not required to comply with California meal and rest break laws because those laws are preempted by the Federal Aviation Authorization Act (FAAA). The FAAA regulates transportation including motor carriers, and expressly provides for preemption of state law. The court agreed, reasoning that California law, which does not directly target the motor carrier industry, would interfere with the price, route and service of a motor carrier, and with competitive market forces in the industry.  

In Ramos-Barrientos v. Bland, the US Court of Appeals for the Eleventh Circuit held that employers of migrant farm workers under the H-2A visa program are entitled to wage credits under the Fair Labor and Standards Act (FLSA) for worker meals, but not for employer-provided housing since that is a benefit primarily to the employer.

This Ford & Harrison LLP memorandum discusses the October 10, 2011 Tennessee Attorney General's Opinion Letter No. 11-72. The letter states that travel time to and from jury duty is compensable, even if the employer does not usually compensate employees for travel time.

This Ogletree, Deakins, Nash, Smoak & Stewart, P.C. memorandum discusses new California employment laws signed by Governor Brown. Under SB 222/AB 210, health insurers must provide maternity coverage for all insureds under individual policies starting no later than July 1, 2012. Under AB 243, farm labor contractors must include the name and address of all growers or other farm labor contractors that used the employer's services on employees' itemized payroll statements. Under SB 126, the Agricultural Labor Relations Board can certify a union as the employees' bargaining agent if it finds employer misconduct would make the chances of a fair new election unlikely. The latter two laws become effective January 1, 2012.

New employment laws cover areas such as consumer credit reports, penalties for willful independent contractor misclassification, written commission agreements and pay information notices for newly hired employees, among other areas.

In Shahriar v. Smith & Wollensky Restaurant Group, Inc., the US Court of Appeals for the Second Circuit upheld the district court's grant of class certification, finding that a district court hearing federal claims under the Fair Labor Standards Act (FLSA) may properly exercise supplemental jurisdiction over state law wage and hour claims.

On September 21, 2011, the IRS announced that it has initiated the Voluntary Classification Settlement Program (VCSP). The VCSP will allow employers to voluntarily reclassify current nonemployees as employees. The Program is designed to increase tax compliance and improve certainty among employers, employees and the government. 

In Field v. American Mortgage Express Corp., the US District Court for the Northern District of California refused to impose joint employer liability on an outside human resources consultant because it lacked sufficient control over wages and working conditions, despite language in the consulting contract.

In Randolph v. ADT Security Services, Inc., the US District Court for the District of Maryland held that an employer violated the anti-retaliation provisions of the Fair Labor Standards Act (FLSA) when it terminated employees for breaching their confidentiality obligations by disclosing confidential information to a state agency in connection with a wage claim.