Category Archives: Wage and Hour

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Every Minute Counts: Should Californian Employers Record Every Minute Worked?

By Kate Visosky and Christina Nordsten on Posted in Wage and Hour
In July, the California Supreme Court issued its opinion in Troester v. Starbucks Corp., holding that the federal wage laws that excuse companies from paying workers for de minimis work, i.e. small amounts of time that are difficult to record, do not apply under the California wage and hour standards. The de minimis rule has … Continue Reading

Ninth Circuit Rules that California Employees Can Trade Away Meal Period Rights

By Michael Gallion and David Van Pelt on Posted in Class Actions, Wage and Hour
In a noteworthy decision last week, the Ninth Circuit ruled that fast food workers in California can voluntarily bargain away some of their meal period rights in exchange for discounted meals. The unanswered questions are how much employees can trade away, and in exchange for what. The case (Rodriguez v. Taco Bell) challenged Taco Bell’s … Continue Reading

Add One Line in Your Employment Contracts and Policies to Reduce Exposure to Misclassification Liability

By Kelley Drye on Posted in Class Actions, Wage and Hour
Employers, even with the most robust and well-intentioned human resources departments, can still face the dreaded misclassification lawsuit for their salaried employers. In many cases, exempt employees are properly classified as executive or administrative employees. A misclassification lawsuit, however, is difficult to dismiss early because plaintiffs are afforded great latitude in crafting factual disputes that … Continue Reading

The New Year Brings New Rules to New York

By Barbara E. Hoey, Mark A. Konkel, Steven R. Nevolis and Diana R. Hamar on Posted in EEOC, FMLA, Legislation, Wage and Hour
As January draws to a close, New York employers are confronting the reality of many new laws and regulations that govern the employment relationship – from the new Paid Family Leave law, to the new federal tax law. We are also tracking several newly-signed and proposed pieces of legislation, which could further complicate the employment … Continue Reading

Racism in Your Spare Time: What Are The Legal Limits for Employers?

By Mark A. Konkel and Alyssa Smilowitz on Posted in NLRB, Wage and Hour
On Saturday, August 12, as the nation watched, protests in Charlottesville, Virginia regarding the anticipated removal of a statue of Confederate general Robert E. Lee turned deadly. In the days and weeks after, both the small city and the country wrestled to make sense of the events. In the aftermath, employers too were forced to … Continue Reading

Law360 Mentions Partner Mark Konkel as Counsel to Saks in Proposed Wage and Hour Class Action

By Kelley Drye on Posted in Class Actions, Wage and Hour
Partner Mark Konkel was mentioned as Saks Fifth Avenue’s defense counsel in a newly-filed wage-and-hour class action in the Law360 article “Saks Hit With NY Wage Class Action Over Sales Commissions.” The high-end retailer has been accused of violating New York state labor law at its flagship department store in Manhattan. Mr. Konkel and a … Continue Reading

The DOL Will Appeal Injunction Suspending Regulations Raising the White Collar Salary Minimums

By Barbara E. Hoey on Posted in DOL, Wage and Hour
As we continue to follow the progress of the injunction suspending the Department of Labor’s regulations raising the salary minimums for the ‘white collar exemption’, yesterday the DOL informed a Texas federal court that it will appeal that injunction. It is a strange coincidence that the DOL announcement came on the same day – December … Continue Reading

Are the DOL Regulations Dead, or Just on Life Support?

By Barbara E. Hoey and Mark A. Konkel on Posted in DOL, Wage and Hour
As you finish your Thanksgiving preparations the last thing you needed was a major legal development in the area of Employment law – but we had one yesterday. On November 22, Judge Amos Mazzant, sitting in the Eastern District of Texas, issued an order enjoining implementation and enforcement of the US DOL’s new overtime exemption … Continue Reading

What You Need to Know About Recent Amendments to Illinois’s Equal Pay Act

By Matthew C. Luzadder and Janine N. Fletcher on Posted in Wage and Hour
As of January 1, 2016, Illinois’s Equal Pay Act (the “Act”) expanded to prohibit all employers, regardless of size, from paying unequal wages to men and women for doing the same or substantially similar work, except if the wage difference is based upon a seniority system, a merit system, a system measuring earnings by quantity … Continue Reading

Are Higher Wages Coming To A City or County Near You? The Minimum Wage Legislation Trend As Told By California

By Kate Visosky on Posted in Wage and Hour
From city to county to state, in the past three years, Californians have witnessed extensive propagation of minimum wage legislation at the local level. After staying silent for several years, the upper echelons of California’s state government eventually responded. For those who were paying attention to their legislative surroundings, the state’s reaction to the growth … Continue Reading

Supreme Court Refuses to Review $188M Class Action Verdict Against Wal-Mart Based Upon “Trial by Formula”

By Barbara E. Hoey and James B. Saylor on Posted in Class Actions, Wage and Hour
Wal-Mart may have felt the first aftershock of the Supreme Court’s March 2016 opinion in Tyson Foods, Inc. v. Bouaphakeo, which undercut overbroad interpretations of its landmark 2011 Wal-Mart v. Dukes decision and found that representative sampling of absent class members is not a per se improper method of establishing class-wide liability or damages. On … Continue Reading

Supreme Court Limits Wal-Mart, Approves Representative Proof in Employee Class Actions

By Barbara E. Hoey and James B. Saylor on Posted in Class Actions, Wage and Hour
In a highly anticipated decision, the Supreme Court last week affirmed a $5.8 million judgment against Tyson Foods and held that damages in a class action can be established by “statistical sampling” – a phrase that may now haunt many employers for years to come. The Plaintiffs in Tyson Foods Inc. v. Bouaphakeo et al. … Continue Reading

New York Employers – Looking Backward and Forward.

By Barbara E. Hoey on Posted in Discrimination, EEOC, FMLA, Health Care, Legislation, LGBTQ, NLRB, OSHA, Wage and Hour
Last year was a ‘big year’ in New York in terms of new employment laws, and 2016 is shaping up to be just as big – as employers come into compliance with the many new laws, and brace for additional changes to come. Among the most significant new laws are the series of statutes signed … Continue Reading

Reminder – Be Careful When Settling A Wage Claim

By Barbara E. Hoey on Posted in Wage and Hour
Addressing an issue that the Second Circuit had not explicitly touched before, the court just held that parties cannot privately resolve and/or discontinue an FLSA claim, without the supervision of the DOL or court approval.  Cheeks v. Freeport Pancake House, Inc., 2015 WL 466 4283 (2d Cir. 2015) In rejecting a stipulation presented by two … Continue Reading

The Unpaid Internship: Who “Really” Benefits from This Arrangement?

By Barbara E. Hoey on Posted in Class Actions, Wage and Hour
Many of us spent summers working as interns, getting access to the industry of our choice, making contacts, learning – and yes running errands and filing and stuffing envelopes and doing other “grunt” work. Most young people value this experience, not for the money, but for the exposure, the contacts and the experience. The world … Continue Reading

New York Attorney General’s Office Demands “On Call Shift” Information From Retailers

By John Mattiace on Posted in Wage and Hour
As reported in various media outlets, the New York Attorney General’s office recently sent a request to several retail employers who do business in New York for information concerning their practices of scheduling employees for “on-call” shifts. Some retailers utilize on-call shift scheduling in order to ensure flexibility and control labor costs.  Indeed, it is … Continue Reading

FLSA Trends: A Mixed Bag with a Silver Lining

By Mark A. Konkel on Posted in Wage and Hour
It came as no surprise, as reported in a Law360 analysis on May 2, that cases brought under the Fair Labor Standards Act (FLSA) continue to trend upward.  The FLSA was for many years a sleepy, antiquated, Depression-era statute the that saw only moderate litigation.  But the plaintiffs’ bar woke up to the complexity – … Continue Reading

After Second Circuit Decision, Oral Complaint to Employer May Support FLSA Retaliation Claim

By Kelley Drye on Posted in Discrimination, Wage and Hour
Under the federal Fair Labor Standards Act (“FLSA”), it is unlawful “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint … related to” the FLSA. Previously, the Second Circuit held that only an employee who actually filed a formal written complaint with a government agency was … Continue Reading
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