When should a tipped employee no longer be treated as a tipped employee? Plaintiffs’ lawyers argue that restaurants cannot utilize the tip credit, or pay tipped employees a sub-minimum wage, if tipped employees perform any “non-tipped” duties, such as washing dishes or taking out the trash. Earlier this week, a District Court in the Northern District of Indiana rejected this argument. (See here) Specifically, the court dismissed a former server’s claim that the FLSA was violated by restaurants paying servers, bartenders, and hosts a sub-minimum wage while they performed non-tipped duties. This decision could be far reaching because restaurants across the country are being hit with similar class or collective action lawsuits.
Read More
Tags:
conditional certification,
tip credit,
HR Allen Consulting Services,
HR Informant,
FLSA
Employees filed a record number of federal wage-and-hour lawsuits under the Fair Labor and Standards Act (FLSA) from March 31, 2011, to March 31, 2012, according to a chart released by Seyfarth Shaw LLP. The figures were confirmed by the Federal Judicial Center.
FLSA wage-and-hour claims exploded over the past decade — more than tripling since 2002 when only 2,035 claims were filed.
The claims forming the bulk of these numbers include misclassification of employees, alleged uncompensated “work” performed off the clock and miscalculation of overtime pay, according to Richard L. Alfred, chair of Seyfarth Shaw’s wage-and-hour litigation practice.
As employers in California are all too aware, wage-and-hour lawsuits brought under California’s labor laws increased similarly in recent years. This year, California employers received welcome guidance from the California Supreme Court in one area of wage-and-hour litigation — meal and rest periods — in the Brinker Restaurant Corp. v. Superior Court decision.
Read More
Tags:
misclassification of employees,
wage and hour lawsuits,
work off the clock,
HR Allen Consulting Services,
HR Informant,
overtime pay,
Fair Labor Standards Act,
FLSA
The Second Circuit has affirmed a grant of summary judgment in a case raising the executive exemption, a relatively rare employer victory in an FLSA case from this court in recent years.
Read More
Tags:
Second Circuit,
HR Allen Consulting Services,
HR Informant,
FLSA
The past two weeks have brought a number of important updates for those watching the Christopher v. SmithKline case, in which the Supreme Court will determine whether pharmaceutical sales representatives are properly classified as exempt from overtime as outside salespersons under the Fair Labor Standards Act (“FLSA”) and whether to defer to the Department of Labor’s (“DOL”) position expressed in amicus briefs that they are not.
Read More
Tags:
pharmaceutical sales representatives,
HR Allen Consulting Services,
Department of Labor,
exemptions,
FLSA
For the past two years or so, perhaps the most anticipated rulemaking in the wage and hour world has been what has been described at various times as the "FLSA Recordkeeping" or "Right-to-Know" rulemaking. As we have discussed previously on the blog, this expected regulation immediately drew the concern of the employer community when it was reported that it would require employers to prepare a written analysis of an employee’s exempt status under the FLSA, provide a copy of that analysis to the employee, and maintain a copy of that analysis for review by a Department of Labor Wage & Hour Division investigator. More recent descriptions call that initial report into question, but the concern remained.
Read More
Tags:
misclassification,
Department of Labor,
exemptions,
FLSA,
wage and hour
The California Supreme Court finally issued its decision in Harris v. Superior Court, rejecting a lower court’s interpretation of the “administrative exemption” from overtime. Unfortunately, the case provides limited guidance to employers on how to apply the exemption. Harris v. Superior Court, 2011 WL 6823963 (2011)
Read More
Tags:
Harris v. Superior Court,
administrative exemption,
exemption,
Wage order,
FLSA
