Fair Labor Standards Act

By Lennon Haas and Noah Finkel

Seyfarth Synopsis:  Employers frequently struggle with questions around the compensability of certain activities, classification of employees, and how to structure their policies to avoid Fair Labor Standards Act violations.  Getting the answers wrong can be costly.  But getting them wrong without making reasonable efforts to comply with the law doubles an employer’s exposure.  According

Continue Reading Calling Your Wage and Hour Lawyer Might Save Your Company $22 Million

By: Robert S. Whitman and Kyle D. Winnick

In Perry et al. v. City of New York, the Second Circuit upheld a large jury verdict in favor of a collective of workers regarding off-the-clock work.  In doing so, the Court reaffirmed the principle that employers will ordinarily not be liable under the FLSA when employees fail to follow a reasonable

Continue Reading Second Circuit Addresses Off-The-Clock Work

By: Kevin Young, Brett Bartlett, Scott Hecker, Noah Finkel, and Leon Rodriguez

Just days before Labor Day, the U.S. Department of Labor (“DOL”) unveiled its Notice of Proposed Rulemaking (“NPRM”), aimed at revising the Fair Labor Standards Act’s overtime exemptions for executive, administrative, and professional employees. While the proposal—the cornerstone of which is a minimum salary

Continue Reading DOL Delivers a Proposed Salary Bump to FLSA Overtime Thresholds for Labor Day

Tips from Seyfarth is a blog series for employers, and their in-house lawyers and HR, payroll, and compensation professionals, in the food, beverage, and hospitality sector. We curate wage and hour compliance “tips” to keep this busy industry informed.


By: Ariel Cudkowicz and Michael Steinberg

Seyfarth Synopsis: After a remand from the Fifth Circuit, a trial court has upheld the

Continue Reading Tips from Seyfarth: Challenge to DOL’s 80/20 Rule Likely to Head Back to the Fifth Circuit

By: Andrew McKinley, Kyle Winnick & Alex Simon

Seyfarth Synopsis: This latest installment in our series on the Department of Labor’s proposed independent contractor rule under the Fair Labor Standards Act focuses on proposed changes to the profit-or-loss analysis as it relates to workers’ investments in their businesses.

A hallmark of independent contractor status is the ability to exercise

Continue Reading DOL’s Proposed FLSA Independent Contractor Rule: Investment as Indicative of Profit and Loss

By: Andrew McKinley, Kyle Winnick & Alex Simon

On October 11, 2022, the Department of Labor (DOL) issued a notice of proposed rulemaking (“NPRM”) defining employee versus independent contractor status under the Fair Labor Standards Act.  We previously discussed the way in which the NPRM proposes to shift the analysis of the control factor, particularly as related to legal, safety

Continue Reading DOL’s Proposed FLSA Independent Contractor Rule: Control and Scheduling

By: Andrew McKinley

Seyfarth Synopsis: Businesses with arbitration programs often oppose the issuance of notice in FLSA collective actions on the ground that many potential recipients have binding arbitration agreements precluding them from participating in a case. The majority of federal appellate courts have not yet addressed whether arbitration must be addressed before or after notice issues. The Sixth

Continue Reading Sixth Circuit Joins the Chorus of Appellate Decisions Requiring Arbitration to Be Assessed Before FLSA Notice Issues

By: Kevin Young and Noah Finkel

Seyfarth Synopsis. Businesses familiar with FLSA litigation are aware of the frustrating ease with which some courts have turned single-plaintiff cases into large-scale collective action proceedings. But the tides are shifting, as the Sixth Circuit Court of Appeals has joined the Fifth Circuit in rejecting the “lenient standard” for collective action certification and demanding

Continue Reading A “Strong Likelihood” of Change: Sixth Circuit Joins the Fifth in Raising the FLSA Certification Bar

By: Christine M. Costantino

Seyfarth Synopsis: In what could become a trend, Judge T.S. Ellis, III recently broke with other courts in the Eastern District of Virginia when he rejected the two-step conditional certification process commonly used in FLSA collective actions and endorsed the one-step process and rationale outlined in 2021 by the Fifth Circuit in Swales v. KLLM

Continue Reading Eastern District of Virginia Judge Rejects Two-Step Conditional Certification Process for FLSA Collective Actions

By: Andrew McKinley, Kyle Winnick & Alex Simon

Seyfarth Synopsis: This first part of a multi-part series explores the implications of the Department of Labor’s proposed independent contractor rule under the Fair Labor Standards Act. Specifically, it focuses on proposed changes to the control factor concerning legal, safety, contractual, and other similar requirements.

As we detailed here, on

Continue Reading DOL’s Proposed FLSA Independent Contractor Rule: Control—Part I