Off-the-Clock Issues

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By Alison Silveira and Kerry Friedrichs

Seyfarth Synopsis: Last week, the United States Court of Appeals for the Third Circuit held that employers can deduct from an employee’s PTO bank for failure to meet clearly defined productivity minimums without violating the salary basis test and jeopardizing the employee’s exempt status.  Higgins v. Bayada Home Health Care Inc. provides…

Continue Reading On the Heels of Helix: Third Circuit Confirms PTO Is Not Part of an Employee’s Salary for the Purpose of Evaluating the Salary Basis Test

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 Zheyao Li and Kevin Young

Seyfarth Synopsis: The U.S. DOL has suspended its “continuous workday” rule for employees working from home as a result of COVID-19. This development has important implications for how small businesses may schedule and compensate non-exempt employees working from home due to the pandemic.

The wave of new law, new guidance on that law, and…
Continue Reading WFH is the New Black, Part 2: The DOL Presses Pause on the “Continuous Workday” Rule

By Kevin Young and Zheyao Li

Seyfarth Synopsis: What a difference a couple of weeks make. The COVID-19 outbreak has forced change upon all aspects of society, and the workplace is no exception. Many workers who escaped layoffs or furloughs are now adjusting to a new normal: working from home. In this post, we explore best practices for mitigating the …
Continue Reading WFH is the New Black: Avoiding Wage and Hour Pitfalls as Work From Home Hits the COVID-19 Mainstream

Co-Authored by Sheryl Skibbe, Jon Meer, and Michael Afar

Seyfarth Synopsis: A recent court decision credited Nike’s time and motion study showing employees spent mere seconds of time in off-the-clock bag checks, finding the checks to be too trivial and difficult to capture to require payment. In contrast, the class failed to present actual evidence showing any amount …
Continue Reading Nike Prevails On Bag Check Case

Co-authored by Steve Shardonofsky and Kevin A. Fritz

Seyfarth Synopsis: As employers begin to pick up the pieces following Hurricane Harvey, management will likely encounter questions about employee pay, benefits, and leaves of absence during and after this disaster, and may also have questions about how to help their workers get by during this difficult time. After making sure your …
Continue Reading Practical Advice for Weathering Pay and Leave Issues Following Hurricane Harvey

Authored by Cheryl Luce

Employers often grapple with what to do when their policies prohibit off-duty work, like working on mobile devices after hours, that employees don’t follow. Even if it has a policy prohibiting off-duty work, if the employer knows (or should know) an employees is working, the employer must compensate the employee for the off-duty work. The same…
Continue Reading Seventh Circuit Sends Police Officers’ Off-Duty BlackBerry Claims to Spam Folder

Supreme-Court-seaslCo-authored by Kara Goodwin and Noah Finkel

Pending before the United States Supreme Court is a petition for writ of certiorari asking the Court to determine whether an employer may use payments for bona fide meal periods as an offset/credit against compensable work time. If the Supreme Court accepts the case, it would also provide an excellent opportunity for the…
Continue Reading No Good Deed Goes Unpunished – The Supreme Court May Decide Whether Payments for Meal Breaks Can Offset Alleged Off-The-Clock Work

Co-authored by Kyle A. Petersen and Molly C. Mooney

Seyfarth Synopsis:  The Second Circuit recently upheld a district court order denying a bid for class certification by personal bankers claiming their managers refused to approve timesheets with overtime hours, shaved reported overtime hours, and pressured them to work off the clock. Because the company’s policy governing (and limiting) overtime work …
Continue Reading Too Personal To Proceed: Personal Bankers’ Certification Bid Bounced Again

Co-authored by Sherry Skibbe and Andrew Paley

Allstate Insurance Company “insured” a major victory last week in an off the clock class action pending in Los Angeles Superior Court, vindicating employers’ argument that plaintiffs cannot simply intone the magical incantation of “statistical sampling” as a means of collective proof in a class action. Rather, plaintiffs must proffer a detailed and…
Continue Reading Court Insures Allstate Against Unsound Trial Plan Mayhem