FLSA

Subscribe to FLSA

Although federal contractors were able to breathe a sigh of relief after the current administration put a stop to President Obama’s “Blacklisting” executive order, employers in the state of Washington must now comply with their own “blacklisting” law.  On May 8, Washington state signed into law Senate Bill 5301 (“SB 5301”), which bans employers from competing for state and local contracts if they have “willfully” violated select wage statutes in the past three years.  Employers with such violations are deemed not to be “responsible bidders” and are disqualified from obtaining public works projects.  SB 5301 passed with bi-partisan support.
Continue Reading Washington State Enacts Its Own “Blacklisting” Statute

In Mendoza v. Nordstrom, the California Supreme Court answered three questions from the Ninth Circuit concerning California’s “day of rest” statutes.  The Court’s decision clarifies a significant ambiguity for employers regarding the obligation to provide employees with their statutorily mandated day of rest.

Mendoza involved a putative class action filed by former Nordstrom employees alleging Nordstrom violated California’s Labor Code by failing to provide them with one day of rest in seven and causing them to work more than six in seven days.  After the district court granted summary judgment in Nordstrom’s favor, plaintiffs appealed to the Ninth Circuit.
Continue Reading California Supreme Court Clarifies California’s Day of Rest Statutes

On December 5, 2016, Berger v. National Collegiate Athletic Association brought a major setback for those advocating that “student athletes” deserve to be compensated for their contributions to the multi-billion-dollar industry of college sports.

The plaintiffs were two former “student athletes” at the University of Pennsylvania (“Penn”) who participated on the women’s track and field team.  Their lawsuit alleged that “student athletes” were employees under the Fair Labor Standards Act (“FLSA”) and that Penn, along with the National Collegiate Athletic Association (“NCAA”) and over 100 other Division I universities, was violating minimum wage laws by not compensating “student athletes.”  The district court dismissed their lawsuit, finding that the plaintiffs had no standing to sue any colleges other than Penn and that “student athletes” were not employees under the law.

On appeal, the Seventh Circuit affirmed the decision.  Briefly addressing the issue of standing, the court found that the plaintiffs’ connection with the NCAA and other colleges was “far too tenuous to be considered an employment relationship.”  Turning to the real issue—whether the plaintiffs are employees of Penn—the plaintiffs argued that the court should use the Second Circuit’s intern test to determine if they were employees.  …
Continue Reading Another Setback for Student Athletes … or Is It?

The Department of Labor’s controversial rule that required “white collar” employees to be paid at least $47,476 per year in order to be exempt from the Fair Labor Standards Act will NOT go into effect on December 1, 2016 as planned (we wrote about the rule here).  A Texas federal judge on Tuesday agreed with 21 states that a nationwide preliminary injunction was necessary to prevent irreparable harm to states and employers if the rule went into effect on December 1.

What does this mean for employers now? …
Continue Reading Breaking News: DOL Salary Rule Blocked By Federal Judge

In the wake of the election results, the question on everyone’s mind now is: What impact will President-Elect Trump have on employers?  Trump has thus far given few details on his thoughts on labor and employment.  But with Republicans maintaining control of Congress, employers could see a lot of changes in the next couple of years.  Our experts weighed in with their thoughts on how different areas of labor and employment law may be affected.
Continue Reading Labor & Employment Law Under President-Elect Trump

The Department of Labor’s new rule that doubles the salary threshold for “white collar” exempt employees goes into effect December 1, 2016.  Under that rule, employees currently exempt under the FLSA as an administrative, executive, or professional employee must make a salary of at least $47,476 and meet the appropriate “duties test” in order to …

On September 12, 2016, California Governor Jerry Brown signed AB 1066.  The bill, which is the first of its kind in the nation, will entitle California farmworkers to the same overtime pay as most other hourly workers in California.

California law defines employees “employed in an agricultural occupation” broadly to include any employment relating to the cultivation or harvesting of agricultural commodities; the raising, feeding, and management of livestock; or the maintenance and improvement of a farm and/or farm equipment.  Prior to the signing of AB 1066, such employees were entitled to time-and-a-half pay after working 10 hours in a day or 60 hours in a week.  This is substantially different from the overtime laws for other California employees, where overtime pay typically kicks in after eight hours in a day or 40 hours in a week.
Continue Reading Expanding Overtime to Farmworkers: Will California Start a Trend?

Earlier this year, we wrote about the Ninth Circuit Court of Appeals decision in Oregon Rest. & Lodging Ass’n v. Perez, which prohibited tip-pools that include “back-of-the house” employees. Last week, the Court rejected a petition to review the decision en banc. This means that, unless the Supreme Court weighs in on the issue,…

In Oregon Rest. & Lodging Ass’n v. Perez, the Ninth Circuit ruled this week that federal law restricts a restaurant employer from maintaining a tip pool that includes “back-of-the-house” employees and requires directly tipped employees to share their tips, regardless of whether a tip credit is taken and employees are paid at least minimum wage.

The FLSA permits an employer to count a tipped employee’s tips toward its hourly minimum wage obligation.  This is known as a “tip credit.”  Section 203(m) of the FLSA requires employers who take a tip credit to give notice to employees and allow employees to retain all of the tips they receive, unless such employees participate in a valid tip pool.  Under section 203(m), a tip pool is valid if it is comprised exclusively of employees who are “customarily and regularly” tipped, commonly referred to as “front-of-the-house” employees.

The employers in Oregon Rest. & Lodging Ass’n, however, did not take a tip credit against their minimum wage obligation.  (Indeed, Oregon does not permit a “tip credit,” and requires that all employees receive the state-mandated minimum wage.)  Rather, the employers in Oregon Rest. & Lodging Ass’n paid their tipped employees at least the federal minimum wage and required their employees to participate in tip pools.  Unlike the tip pools contemplated by section 203(m), however, these tip pools included both front- and back-of-the-house employees.…

Continue Reading Ninth Circuit Declares Tip Pools Invalid Under FLSA Even Where Employers Pay More Than Minimum Wage

As colleges and universities begin new terms, not all students are returning to the classroom.  Some students are headed into the “real world,” to work alongside corporate titans, small-business owners, or moms and pops in their shops, while receiving academic credit—and not wages—for their efforts.  These students are applying the lessons learned in their prior studies to real-world scenarios to gain valuable experience, build their skills, and make connections to help them succeed upon graduating.  Or at least they should be.  If they are instead used merely as a source of labor, they must be paid.  But many employers mistakenly assume that because these students are getting school credit, they need not be paid.  That is a trap into which employers reading this blog will not fall.

The Fair Labor Standards Act (“FLSA”) and state laws require employers to pay all employees for work performed.  If students who participate in unpaid internships with private employers do not qualify as “employees,” they need not be paid.  Whether those students qualify as “employees” depends on several factors, but the general rule is that these programs are lawful as long as the student, not the employer, is the primary beneficiary of the internship program.…

Continue Reading It’s a Trap!  Students Receiving Credit Need Not Be Paid?