Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘FLSA’

As shutdown becomes longest in U.S. history, federal employees sue over working for no pay

Monday, January 14th, 2019

The government shutdown dragged on for a 22nd day on Saturday, making it the longest in American history. On Friday, 800,000 federal employees went without their paychecks. And though President Trump insists “the buck stops with everybody,”  51 percent of Americans are placing blame for the shutdown him and him alone, according to a Reuters/Ipsos poll.

On Friday, federal employee unions filed a lawsuit accusing the government of violating federal labor laws by forcing “essential” employees to continue to work through the shutdown, even though they aren’t being paid. These unions — the National Federation of Federal Employees, the National Association of Government Employees, the National Weather Service Employees Organization — have sued in the U.S. Court of Federal Claims. They allege that by not paying workers minimum wage and overtime, the federal government is violating the Fair Labor Standards Act.

In a statement, NFFE National President Randy Erwin said:

“In this country, when a worker performs a day’s work, he or she is entitled to a day’s worth of compensation. That is how working people provide for their families. Because of the chaos this wasteful government shutdown is causing, the government is trying to pay people in I.O.U.s. With this lawsuit we’re saying, ‘No, you can’t pay workers with I.O.U.s. That will not work for us.’”

The National Air Traffic Controllers Association also sued the federal government Friday, as its workers, too, work sans pay throughout the shutdown. Their lawsuit argues that the administration is in violation of the Fair Labor Standards Act as well as the Fifth Amendment, asserting that it “unlawfully deprived NATCA members of their earned wages without due process,” as the group wrote in a press release. According to The Hill, NATCA is asking for a hearing on its motion for a temporary restraining order against the government.

Politico reports that the Office of Management and Budget is working on “a special mid-cycle pay disbursement for impacted agencies” so that employees can be paid swiftly — that is, once the shutdown ends.

One thing that would not end the shutdown, according to the White House, is the declaration of a national emergency, a move Trump is said to be giving serious consideration.

Sources told Politico that White House officials have urged congressional Republicans to manage their expectations about the shutdown coming to a speedy conclusion in the event that Trump declares a national emergency at the border.

This article was originally published at ThinkProgress on January 12, 2019. Reprinted with permission. 

About the Author: Jessica M. Goldstein is the Culture Editor for ThinkProgress.

Legislation from DeLauro and Clark Would Strengthen Protections for Tipped Workers

Tuesday, March 13th, 2018

As we reported in January, President Donald Trump’s Department of Labor is proposing a rule change that would mean restaurant servers and bartenders could lose a large portion of their earnings. The rule would overturn one put in place by the Barack Obama administration, which prevents workers in tipped industries from having their tips taken by their employers. Under the new rule, business owners could pay their waitstaff and bartenders as little as $7.25 per hour and keep all tips above that amount without having to tell customers what happened.

An independent analysis estimates this rule would steal $5.8 billion from the pockets of workers each year. A whopping $4.6 billion of that would come out of the pockets of working women. This is bigger than simply the well-deserved tips of restaurant workers. This is another example of extreme legislators, greedy CEOs and corporate lobbyists uniting in opposition to working people. They want to further rig the economic playing field against workers, people of color and women.

Last week, Reps. Rosa DeLauro (D-Conn.) and Katherine Clark (D-Mass.) offered up legislation that will strengthen protections for tipped workers and secure tips as the property of the workers who earn them. Department of Labor Secretary Alexander Acosta indicated that he will support Congress’ legislative efforts to stop companies from claiming ownership over tips instead of the workers who earn them.

Hundreds of thousands of you already have spoken out, sending comments of opposition to the rule straight to the Labor Department. It’s time for us to take the next step together. We can hold Trump’s Department of Labor accountable and make sure that Congress hears our opposition to this ridiculous and unfair change. Take action, and tell Acosta to support amendments to the Fair Labor Standards Act that will secure tips as the property of workers and oppose Trump’s rule legalizing wage theft.

Here’s How Trump’s Labor Department Quietly Gave Bosses Even More Power Over Their Workers

Thursday, January 18th, 2018

On January 5, the Department of Labor (DOL) quietly took a step to bolster the legal power of bosses over their workers by reissuing 17 previously withdrawn opinion letters. Developed at the end of George W. Bush’s final term, the letters had been withdrawn by the Obama administration, which discontinued the practice of issuing opinion letters altogether.

Opinion letters address specific questions submitted to the DOL by either employees or employers. The party then receives an official interpretation from the DOL Wage and Hour Division (WHD) detailing how the Fair Labor Standards Act (FLSA) and/or the Family and Medical Leave Act is implicated in their case. That opinion can then be used as guidance in future litigation. Other employers can also rely on an opinion letter, even if they didn’t request it themselves, as long as the facts are similar.

Critics of opinion letters point out that they take a long time for the labor department to craft (the George W. Bush administration averaged just 28 a year), and they only address one company’s specific situation—despite the fact that they can be used to the advantage of other employers in future cases.

There’s another big critique of opinion letters: They make it easier for employers to fight labor violation claims in court.

“Employers love opinion letters,” Patricia Smith, former Obama administration solicitor of labor, told In These Times. “They’re viewed by many as Get-Out-of-Jail Free cards.”

This sentiment was echoed by Michael Hancock, who managed the WHD opinion process for Bush’s final term. “It’s no secret that the opinion letter process largely serves the interest of employers; it gives them a legal defense if their practices comport with what the opinion letter says, even if the Department of Labor was wrong in what the opinion states,” he told Bloomberg last March. “It offers a serious and real significant defense to employers.”

Employers typically have the resources to pay their attorneys to talk with WHD officials before they request an opinion, so they can make sure they only ask if they are going to get a favorable result. The process is further skewed toward employers if the administration they’re requesting opinion from is employer-friendly—a fact that is certainly true of the Trump administration.

The Obama administration ended the established practice of issuing opinion letters and decided to issue a small amount of informal guidance documents instead. Last June, Trump’s labor secretary Alexander Acosta announced that he was withdrawing two of the informal guidance documents, a move that was hailed by business groups, as the documents both benefited workers. One of the letters dictated that subcontractors could be held liable if they failed to comply with FLSA requirements. The other offered an interpretation of “joint employers” and required some businesses to comply with the FLSA’s overtime rules.  That same month Acosta announced that opinion letters were returning.

Lawyers who say that they received favorable opinions for employers during the George W. Bush administration explained to Bloomberg how the process worked. Christopher A. Parlo, who represents management clients, said, “In the past you could go to DOL and lay out a scenario for them and they would give you their informal view on how that situation might play out. And if you didn’t believe that the result was one that would help your client or industry, you could choose not to ask for formal opinion. I thought that was a great process.”

The 17 Bush administration opinions that are being revived refer to a variety of topics, from year-end non-discretionary bonuses to salary deductions for full-day absences. Smith told In These Times that it was hard to know exactly what kind of impact these specific opinions would have, but said she thought that the move was at least partially symbolic: a signal to employers that the pro-business policies of Bush’s labor department have officially returned. “The message is, ‘We’re back,’” she said.

National Employment Law Project executive director Christine Owens issued a strong statement regarding the move, calling it “another example of how this administration is siding with big business to make it harder to get paid for working overtime and to make it easier for companies to reap the benefits of young workers’ labor without paying a cent for it.”

There’s a good chance that the WHD, which issues the opinion letters, will be soon be run by Trump nominee Cheryl Stanton, who is expected to be confirmed by the GOP-controlled Senate early this year. Stanton served as the White House’s principal legal liaison to the Labor Department under George W. Bush and spent years defending companies in labor cases. She’s also had an unpaid wage scandal of her own: In 2016 she was sued for allegedly failing to pay her house cleaners.

For the first time in over eight years, employers will be able to ask the White House for advice when they get tied up in legal battles. It seems quite probable that the pro-business forces dominating the Trump administration will have a lot to give.

This article was originally published at In These Times on January 18, 2018. Reprinted with permission.

About the Author: Michael Arria covers labor and social movements. Follow him on Twitter: @michaelarria

Is Time for Bag Searches Compensable in California?

Thursday, December 14th, 2017

In the new year the California Supreme Court will address the question of whether employee bag searches should be compensated under California law. The question recently certified by the Ninth Circuit Court of Appeals to the California Supreme Court in Frlekin v. Apple, Inc. states:

“Is time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages or bags voluntarily brought to work purely for personal convenience by employees compensable as “hours worked” within the meaning of California Industrial Welfare Commission Wage Order No. 7”?

Not all employers have bag inspection policies. However, those that do retain the right to inspect large purses, backpacks, and other personal bags when an employee leaves the premises for a meal or rest break. In some cases, there might be no wait and a search could take 30 seconds; in others, it might last several minutes, reducing the break to a much shorter duration than the law requires. For example, a 30-minute meal period could be cut in half and a 10-minute rest break could be effectively eliminated. This can deter employees from leaving to purchase and enjoy a meal or otherwise spend their breaks as they wish. California law requires employees to be fully relieved of their duties on all breaks with few exceptions.

Bag inspection policies exist to enhance loss prevention. Despite employers’ legitimate concerns about employee theft, there are less restrictive alternatives that better protect employees’ rights. For example, employers can arrange for employees to clock out after they are searched instead of before they wait for and undergo searches. If the California Supreme Court answers the question above in the affirmative, it will send a strong message that employers can no longer get something for free—that is, they can no longer expect employees to do something off the clock for the sole benefit of the employer.

Even if bag searches do infringe on workers’ rights relating to meal and rest periods in California, employees must still overcome the hurdle of the de minimis doctrine. This federal doctrine holds that, where business considerations make it impractical to precisely record time, such “de minimis” time (e.g. a few seconds or minutes) is not compensable. Because California law is more protective of employees’ rights and specifies meal and rest period requirements, the Ninth Circuit has certified this question to the California Supreme Court in Troester v. Starbucks Corporation:

“Does the federal Fair Labor Standards Act de minimis doctrine, as stated in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946) and Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir. 1984), apply to claims for unpaid wages under the California Labor Code sections 510, 1194, and 1197?”

If the Court holds that bag searches are compensable and the de minimis doctrine does not apply to state claims, it would be a victory for California employees. See Apple defeats U.S. Class Action Lawsuit over bag searches. They would be entitled to wages for all time spent waiting for and undergoing bag inspections, both during meal and rest periods and at the end of their shifts.

About the Author: Scott Edward Cole founded the predecessor firm to Scott Cole & Associates in 1992 and has devoted himself, his team, and the firm’s resources to championing employment and consumer law issues ever since. Mr. Cole is an extremely well-respected leader in the field of employment class action litigation, has authored numerous scholarly publications and has been called upon to serve as a regular speaker at public seminars on issues surrounding employment laws and class action procedures.

Delivery Drivers Sue Amazon Over Misclassification, Failure to Pay Overtime and the Minimum Wage

Tuesday, December 20th, 2016

With wage and hour lawsuits becoming increasingly common across the country, there was little reason for the lawyers at Amazon.com’s Seattle headquarters to be surprised when one landed on their doorstep recently. But they may have been concerned to learn that their newest legal adversary is “Sledgehammer Shannon” Liss-Riordan, a Boston attorney who gained legal fame by beating corporate giants like FedEx and Starbucks in just these kinds of contests.

The new lawsuit against Amazon is similar to one of Liss-Riordan’s best known cases—a suit against FedEx that charged the company was misclassifying delivery drivers as independent contractors when the workers were, as a matter of law, regular employees. Liss-Riordan won that fight and, this year, FedEx announced that it would give up on a series of related legal fights and pay $240 million to some 12,000 drivers in 20 states.

Liss-Riordan took the fight to Amazon in a suit filed October 4 in the U.S. District Court for the Western District of Washington. It charges Amazon and Amazon Logistics Inc. with violating the minimum wage law in Seattle, state labor law in Washington and the federal Fair Labor Standards Act (FLSA).

Liss-Riordan explains that Amazon is experimenting with a delivery system where the company contracts with individuals to use their own cars to pick up parcels at Amazon warehouses and deliver them to local customers. The drivers typically sign up for a specific work shift and are paid an hourly wage. They are not compensated, however, for expenses like gasoline, car maintenance, telephone calls, or other incidentals. When subtracting these expenses, drivers often end up earning less than the minimum wage and are denied overtime pay, she says.

That description of delivery methods was echoed by Stacy Mitchell, co-director of the advocacy group Institute for Local Self-Reliance. Along with co-author Olivia LaVecchia, Mitchell has just completed a major study of Amazon’s business practices that warns that the giant corporation is killing good jobs in local economies as it seeks to monopolize different sectors of the retail business.

“Amazon has substantially expanded its warehouses in recent years and is experimenting with the so-called ‘last mile’ of the delivery system. They are increasingly using on-demand drivers, and also regional couriers, to move goods,” Mitchell says. “In the past, this sort of ‘last mile’ delivery was typically done by the U.S. Postal Service or United Parcel Service. USPS and UPS jobs are good-paying union jobs, and Amazon is undermining these with its gig economy model.”

In These Times reached out to Amazon to comment on the lawsuit. Spokesman Jim Billimoria provided the following response:

“The small and medium sized businesses that partner with Amazon Logistics have their own employees and are required to abide by applicable laws and Amazon’s Supplier Code of Conduct, which focuses on compensation, benefits, and appropriate working hours. We investigate any claim that a provider isn’t complying with these obligations.”

Liss-Riordan says this sort of a defense is typical of large corporations, many of which have lost wage and hour lawsuits in court.

“It’s not what you say that counts, it’s what you do,” she said. “We’ve been able to demonstrate, time and time again, that a lot of these corporations just don’t live up to their stated policies when it comes to real-life employment practices on the ground. That’s why you see more and more of these suits.”

Indeed, a 2015 report from the law firm of Seyfarth Shaw LLP described an “onslaught” of litigation resulting in a record high number of federally-filed wage and hour cases in 2015. According to the firm, there were 8,781 such cases in 2015, compared to only 1,935 in 2000.

Asked about her nickname “Sledgehammer Shannon,” Liss-Riordan laughed out loud.

“It’s sort of silly. Mother Jones magazine did an article last year about a case I have against Uber, and I get a lot of jokes. I don’t care. The fact is, we will take on cases like this and fight them for 10 years if we have to.”

This blog originally appeared at Inthesetimes.com on December 12, 2016. Reprinted with permission.

Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’s Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.

Federal Judge: Home Care Workers Entitled to Minimum Wage and Overtime

Thursday, August 27th, 2015

Kenneth QuinnellIn a unanimous decision, a federal appeals court reversed a district court and ruled that the U.S. Department of Labor was within its authority to issue a rule change meant to provide home care workers with a minimum wage and overtime protections. The case is now remanded to the district court.

In 2013, the Labor Department announced rule changes under the Fair Labor Standards Act (FLSA) that would guarantee that workers who care for the elderly and people with disabilities in their homes would have the same labor protections as other workers. But U.S. District Judge Richard Leon halted the change saying that Labor didn’t have the authority to make the rule change. On appeal, the higher court disagreed. U.S. Circuit Judge Sri Srinivasan wrote for the court: “The Department’s decision to extend the FLSA’s protections to those employees is grounded in a reasonable interpretation of the statute and is neither arbitrary nor capricious.”

Christine L. Owens, executive director of the National Employment Law Project, said she assumes that Labor now has the authority to implement the changes: “States would be well advised, and employers would be well advised, to take this decision as final and begin acting.”

As Think Progress reports:

This workforce, which is 90 percent female and half people of color, hasn’t been eligible for minimum wage or overtime pay since 1974, when they fell under the companionship exemption given the idea that they merely provided company to their clients. So while their average wages come to $9.61 an hournearly a third of those surveyed in New York City made less than $15,000 a year and nearly 40 percent of the entire workforce has to rely on public benefits to get by….

Home care workers are in a huge and rapidly expanding industry. Nearly 2.5 million people are employed in this line of work, making it one of the largest occupations, and the number of jobs is expected to grow 70 percent by 2020. Even so, demand is expected to outpace supply over the next decade as the country ages, something that could be eased with higher pay and benefits.

This post originally appeared in AFL-CIO on August 26, 2015. Reprinted with permission.

About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist.  Before joining the AFL-CIO in 2012, he worked as labor reporter for the blog Crooks and Liars.  Previous experience includes Communications Director for the Darcy Burner for Congress Campaign and New Media Director for the Kendrick Meek for Senate Campaign, founding and serving as the primary author for the influential state blog Florida Progressive Coalition and more than 10 years as a college instructor teaching political science and American History.  His writings have also appeared on Daily Kos, Alternet, the Guardian Online, Media Matters for America, Think Progress, Campaign for America’s Future and elsewhere.

Court Says Lactation Is Related to Pregnancy, Refrains From Saying, "Duh"

Tuesday, October 1st, 2013

Donna photo redwrote about a really stupid case out of Texas where a federal court said that “lactation is not pregnancy, childbirth, or a related medical condition,” and thus decided that “firing someone because of lactation or breast-pumping is not sex discrimination.”  I was irked, to say the least. Lactation not related to pregnancy and childbirth? Really?

Well, the 5th Circuit Court of Appeals which, to its credit, refrained from saying, “Well, duh,” has unanimously ruled that lactation is, indeed, related to pregnancy and is therefore covered by Title VII. EEOC reports this about the decision: “The Fifth Circuit noted the biological fact that lactation is a physiological condition distinct to women who have undergone a pregnancy.  Accordingly, under Title VII and the Pregnancy Discrimination Act, firing a woman because she is lactating or expressing milk is unlawful sex discrimination, since men as a matter of biology could not be fired for such a reason. The case was remanded back to the lower court for a trial on the merits.”

Personally,  I think the 5th Circuit should be applauded, not only for its common sense, but for the fact that it did not openly mock the lower court’s ruling. I wouldn’t have had that much self-control.

I should also point out that almost all employers are required to provide nursing mothers with break time to pump breast milk, along with a private space that isn’t the restroom to do so.The Fair Labor Standards Act requires this, so employers who fire moms for lactating may also run afoul of this law, even if they aren’t large enough to be covered by Title VII.

I rarely get to say this, so: Hooray for common sense in the courts!

This article was originally posted on Screw You Guys, I’m Going Home on September 27, 2013.  Reprinted with permission.

About the Author: Donna Ballman‘s new book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was recently named the Winner of the Law Category of the 2012 USA Best Books Awards and is currently available for purchase. She is the award-winning author of The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She’s been practicing employment law, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and employment law issues in Florida since 1986. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the 2011 and 2012 ABA Blawg 100 best legal blogs and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.

She has written for AOL Jobs and The Huffington Post on employment law issues, and has been an invited guest blogger for Monster.com and Ask A Manager. She has over 6000 followers on Twitter as @EmployeeAtty. She has taught continuing legal education classes for lawyers and accountants through organizations such as the National Employment Lawyers Association, Sterling Education Services, Lorman Education Services, Alison Seminars, the Florida Association for Women Lawyers, and community organizations.  Ms. Ballman has published articles on employment law topics such as severance, non-compete agreements, discrimination, sexual harassment, and avoiding litigation. She’s been interviewed by MSNBC, Forbes, the Wall Street Journal, Lifetime Television Network, the Daily Business Review, and many other media outlets on employment law issues. She was featured on the Forbes Channel’s “America’s Most Influential Women” program on the topic of severance negotiations and non-compete agreements.

2015 Will Usher In Increased FLSA Liability for Home Health Care Agencies

Wednesday, September 25th, 2013

Patrick J. FazziniOn Tuesday, September 17, 2013, the U.S. Department of Labor (DOL) issued a final rule extending the Fair Labor Standard Act’s (FLSA) minimum wage and overtime protections to an estimated two million home health care workers. Scheduled to take effect on January 1, 2015, this amendment narrows the FLSA’s “companionship” exemption.

In 1974, Congress extended the FLSA’s wage protection provisions to virtually all domestic service workers; however, it provided a limited exception for workers who provided for the care, fellowship, and protection of persons who, because of advanced age or physical or mental infirmity, could not care for themselves. These “companionship” services, which are widely and popularly used for the in-home care of loved ones, most often include assistance with household work such as meal preparation, bed making, clothes washing and other similar personal services.

U.S. Secretary of Labor Thomas E. Perez recently summarized these types of services, stating, “Many American families rely on the vital services provided by direct care workers. Because of their hard work, countless Americans are able to live independently, go to work and participate more fully in their communities.”

The DOL points out that the home health care industry has grown significantly over the last 35 years and that the in-home care services provided to individuals today are markedly different from when the companionship services regulations were first promulgated. As a result, and in an effort to extend the FLSA’s protection to this ever-growing in-home workforce, the final rule removes the ability of third-party employers to avail themselves of the companionship exemption. However, it does permit the individual, family or household employer directly employing the worker to continue to take advantage of the exemption—so long as the employee still primarily provides the fellowship and protection contemplated by the exemption. Further, and among other amendments, the final rule explains that direct care workers who perform medically-related services for which training typically is a prerequisite, are not companionship workers and therefore are entitled to the minimum wage and overtime pay.

As a result of the final rule, many third-party employers—specifically home health care agencies—should be on the lookout for potential FLSA liability stemming from improper exemption classification and compensation issues. Why the delayed start date? The DOL indicates that the January 1, 2015 start date is intended to give employers “time to adjust” and as such, employers should begin conducting internal FLSA audits to ensure their continued legal compliance when the transition takes effect.

This article was originally printed on Ogletree Deakins’ Wage and Hour Blog on September 20, 2013.  Reprinted with permission.

About the Author: Patrick Fazzini is an associate in the Pittsburgh office of Ogletree Deakins.

Black Swan Unpaid Interns Win FLSA Claim

Wednesday, June 19th, 2013

philip_miles_smallSome unpaid interns from Black Swan sued the production company for actual wages, and guess what? They won. A couple days ago the Southern District of New York issued its opinion in Glatt v. Fox Searchlight Pictures (opinion here).

The Court broke it down into two issues:

1. Were the interns employees under the FLSA?
2. If so, did they fall under the narrow “trainee” exception?

On the first issue, the Court applied Second Circuit utilizing the “formal control” and “functional control” tests. This determination will vary from jurisdiction to jurisdiction. But, as the Court noted, “in the end, it is all about control.” And that’s pretty consistent no matter what court you’re in.

The second issue is the particularly interesting part of this case. In determining whether the interns fell under the trainee exception the Court relied heavily on the six factors identified in a DOL fact sheet from 2010 (I blogged about this back in 2010):

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

The Court ruled that the unpaid interns were employees who did not fall under the trainee exception. Now, a Time magazine article is declaring this decision The Beginning of the End of Unpaid Internships. I don’t know about that . . . but I do know that this case is generating a ton of buzz, and it’s difficult for unpaid internships to be FLSA-compliant.

This article was originally printed on Lawffice Space on June 13, 2013.  Reprinted with permission.

About the Author: Philip K. Miles III, Esq. is the creator of Lawffice Space.  He is an attorney with McQuaide Blasko, a full-service law firm headquartered in State College, Pennsylvania.  He belongs to the Labor and Employment, and Civil Litigation Practice groups.  Lawffice Space is an independent law blog focusing on labor and employment law.

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