By Noah Finkel and Lennon Haas

Seyfarth Synopsis:  Plaintiffs asserting federal and state wage and hour claims in one action often pursue both class certification of state claims under Rule 23 and collective action certification under the FLSA.  In that hybrid environment, litigating FLSA collectives to judgment before addressing Rule 23 certification can saddle employers with the increased exposure of
Continue Reading Third Circuit Puts The Kibosh on Hybrid Hijinks

By: Ariel Fenster and Noah Finkel

Seyfarth Synopsis:  If the gist of a proposed regulation is made final, the 80/20 rule will be back, and with a vengeance.  Employers who take a tip credit for their tipped employees will have to ensure that those employees spend no more than 20 percent of their time in a workweek, and no more
Continue Reading Proposed Tip Credit Regulations Place Further Litigation on the Menu

On Thursday, May 20th at 1:00 p.m. ET / 12:00 p.m. CT / 10:00 a.m.  PT , Seyfarth attorneys Brett Bartlett, Noah Finkel, Kerry Friedrichs, and Scott Hecker will present a webinar entitled Navigating Wage and Hour Risks Under the Biden Administration.

In February 2021, Seyfarth’s Wage Hour Litigation Practice Group published the inaugural edition of
Continue Reading Upcoming Webinar: Navigating Wage and Hour Risks Under the Biden Administration

By: Robert Whitman and Bill Varade

Seyfarth Synopsis: In Whiteside v. Hover-Davis, Inc., the Second Circuit upheld the dismissal of an FLSA claim because the plaintiff failed to allege facts sufficient to invoke the three-year limitations period for willful violations.

If a plaintiff merely alleges a willful violation of the Fair Labor Standards Act (“FLSA”), without more, will that suffice
Continue Reading Second Circuit: Mere Allegation Of Willfulness Not Enough To Invoke Three-Year Statute Of Limitations

By: Scott Hecker and Kevin Young

Gone are the days when the U.S. DOL’s Wage & Hour Division (“WHD”) invited employers to proactively identify and collaborate with the Division to fix their wage and hour missteps. Closed is the chapter in which employers could expect WHD to stand down on the threat of double damages outside of egregious cases. After
Continue Reading Preparing for WHD’s Less-Carrot-More-Stick Enforcement Approach

By: Amanda Mazin and David D. Kadue

Seyfarth Synopsis: The Ninth Circuit has held that a weekly per diem benefit paid by a healthcare staffing agency to its traveling clinicians is a wage that increases the employee’s regular rate used to calculate overtime pay. Clarke v. AMN Services, LLC.

Facts

Plaintiffs worked as traveling clinicians for a healthcare staffing company.


Continue Reading Certain Per Diem Payments Increase The FLSA Regular Rate

By: Tim Watson, Brian Wadsworth, and John Phillips

Seyfarth Synopsis: In an important decision for employers, the Fifth Circuit Court of Appeals rejected the all-too lenient but commonly accepted Lusardi standard for conditional certification under the FLSA. In its place, the court adopted a more practical, common sense approach in deciding whether trial courts should send notice to
Continue Reading No More Two-Step in Texas (and Beyond): the Fifth Circuit Rejects the Two-Stage Lusardi Approach to Conditional Certification in Favor of Employer-Friendly Standard

By Ariel Fenster and Kevin Young

Seyfarth Synopsis. In the final hours of 2020, the U.S. DOL’s Wage & Hour Division issued an opinion letter containing guidance on the compensability of time commuting to the office, or tending to personal matters, for employees primarily working from home. While fact-specific, the letter offers a glimpse into WHD’s current thinking on increasingly
Continue Reading New Year’s Gift From WHD: Guidance on Continuous Workday Rule in the WFH Era

By: Brian A. Wadsworth and Andrew L. Scroggins

As COVID-19 cases surge again in the United States, state and local governments continue to recommend or require remote work arrangements, and some employers have already announced plans to permit remote work to continue well into 2021 and even beyond.

Remote work is not new, and many of its challenges such as
Continue Reading As COVID-Driven Remote Work Arrangements Continue, Wage and Hour Compliance Challenges Grow

By: Andrew McKinley and Louisa Johnson

Seyfarth Synopsis: The U.S. DOL has confirmed that there is no per se violation of the FLSA’s minimum wage requirement when low-wage employees are reimbursed for their use of a personal vehicle at a reasonable rate that is less than the IRS standard mileage rate and clarified that, in many cases, not all vehicle-related
Continue Reading Reasonable, Not Required: DOL Says IRS Mileage Rate Is Not Only Expense Reimbursement Method