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 WorkBy: 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 DayBy: 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 BarBy: A. Scott Hecker and Noah A. Finkel
Seyfarth Synopsis: On January 4, 2023, the Biden Administration announced the release of its Fall 2022 Unified Agenda of Regulatory and Deregulatory Actions. In connection with the Administration’s new regulatory agenda, the U.S. Department of Labor’s Wage and Hour Division has a number of ambitious rulemakings on the horizon, including a
Continue Reading The Biden Administration Issued Its Latest Regulatory Agenda – What’s on Tap for DOL in 2023?By Lennon B. Haas, Kyle Petersen, and Kevin M. Young
Seyfarth Synopsis: Though it may sound esoteric, the question of whether “last mile” drivers fall within the Federal Arbitration Act’s transportation worker exemption bears tremendous consequence. If they are exempt, they can’t be compelled to arbitrate under the FAA. If they are not exempt, the answer reverses. In
Continue Reading Eleventh Circuit Clears the Road to Arbitration for Last-Mile Drivers
By: Kevin M. Young, Kerry M. Friedrichs, and Ryan McCoy
Seyfarth Synopsis: On Tuesday, the Third Circuit issued a decision rejecting the U.S. DOL’s general position that incentive bonuses paid to employees by a third-party must be factored into overtime pay. While the decision merely endorses a more tempered “it depends” view, it provides welcome news and guidance
Continue Reading Does a Third-Party’s Bonus Payment to Your Employees Require You to Pay More Overtime? Citing Clark Griswold, Appeals Court Says Not Necessarily.
Co-authored by Alex Passantino and Kevin Young
Seyfarth Synopsis: On April 1, 2019, the U.S. DOL announced a proposed rule to clarify joint employment under the FLSA. The rule would establish a four-factor balancing test for joint employer status. It also rejects various factors that have fueled recent litigation, e.g., a worker’s economic dependence on a potential joint employer, the potential employer’s business model, and its unexercised power over the worker.
This is the third proposed rule that the DOL has issued in a month’s time. Like the other proposals (concerning overtime exemptions and the regular rate of pay), this rule—if adopted—should provide welcome clarity for many businesses. This is particularly true for those most targeted by joint employment litigation, such as franchisors, staffing agencies, and businesses with subsidiaries or affiliates.Continue Reading April Rules: DOL Continues Rulemaking Sprint With New Proposed Joint Employment Standard
Co-authored by Christopher Truxler and Coby Turner
Seyfarth Synopsis: Earlier this month, a California federal court dismissed the misclassification claims of 7-Eleven franchisees on the pleadings, finding they did not and could not plead facts sufficient to show that they were employees of their franchisor.
All is well with one of America’s most beloved convenience stores. In October 2017, four
Continue Reading Oh Thank Heaven, Franchisees Not Employees of 7-Eleven!
Co-authored by Alex Passantino and Kevin Young
On Tuesday, the Wage & Hour Division announced a new program for resolving violations of the FLSA without the need for litigation. The Payroll Audit Independent Determination program—or “PAID”—is intended to facilitate the efficient resolution of overtime and minimum wage claims under the FLSA. The program will be conducted for a six-month
Continue Reading Tired of Waiting for FLSA Litigation? Meet PAID, WHD’s Pilot Program For Proactive Employers.
Co-authored by Kevin Young and Kara Goodwin
Even as FLSA litigation has surged to historic highs, it is rare to see a nefarious violation of the Act by a manager or supervisor. Far more prevalent, it seems, are stories of managers who, while intending to afford employees freedom and flexibility, instead trip over one of many hurdles scattered across the
Continue Reading The Road to FLSA Litigation is Often Paved With Good Intentions