Texas Employment Law Update

Texas Employment Law Update

A Resource for Texas Employers

Tag Archives: Fair Labor Standards Act

Fifth Circuit Holds Nonemployee Lacks Claim but Employee Can Recover Emotional Distress Damages in FLSA Retaliation Suit

Posted in Case Summaries, Retaliation, Wage & Hour
The Fifth Circuit recently held that a plaintiff-employee in an FLSA retaliation claim can recover damages for emotional distress but that the statute does not provide a retaliation cause of action for a nonemployee spouse. In Pineda v. JTCH Apartments, LLC, an employee of the apartment complex who did maintenance work around the property and… Continue Reading

Use the New Overtime Rules to Correct Misclassified Workers

Posted in Human Resources, Wage & Hour
This week the DOL announced changes to the white collar overtime exemptions that take effect December 1, 2016. Every employment lawyer with a newsletter, blog or soapbox has written some summary of the new regulations. And while the regulations only effect the executive, administrative, professional and high compensated exemptions, Daniel Schwartz, a Connecticut employment lawyer… Continue Reading

Don’t Forget to Consider Whether Year-End Bonuses Trigger Overtime Adjustments

Posted in Wage & Hour
As we get to the end of the year, management committees and corporate boards are in the process of approving year-end bonuses for employees.  A frequently overlooked wage and hour mistake is failing to include non-discretionary bonuses in the regular rate of pay for non-exempt employees. In calculating the regular rate of pay on which… Continue Reading

Fifth Circuit Confirms Use of Fluctuating Workweek Method of Overtime Calculation in Misclassification Case

Posted in Case Summaries, Wage & Hour
In settlement negotiations and trial of FLSA overtime misclassification cases, there is usually a disagreement between the parties as to how the unpaid overtime should be calculated. Attorneys representing employees typically want overtime calculated using a 1.5 times the regular rate of pay for each overtime hour that was worked. Attorneys representing companies typically want to utilize… Continue Reading

Finally, Private Litigants Can Settle Bona Fide FLSA Disputes Without DOL or Court Supervision!

Posted in Case Summaries, Wage & Hour
Some of you may be surprised to learn that conventional wisdom was that claims arising under the Fair Labor Standards Act (the federal law requiring the payment of minimum wage and overtime to most employees) cannot be released or waived without court or Department of Labor supervision. I certainly thought that until several years ago when I had… Continue Reading

Fifth Circuit Holds 24 Hour Fitness Arbitration Agreement Illusory and Unenforcable

Posted in Arbitration, Case Summaries, Wage & Hour
24 Hour Fitness operates health clubs and fitness facilities across the country.  As part of its operations, 24 Hour Fitness employs sales representatives.  As a condition of employment, employees are required to enter into arbitration agreements to arbitrate their employment disputes with their employer.  FLSA claims (i.e., overtime and minimum wage claims) are covered within the scope of the… Continue Reading

Could FLSA Reform Create Job Growth?

Posted in News & Commentary
I almost never read the letters to the editor in my local newspaper because, well . . . opinion are like . . . noses; everyone has one. However, last week I “stumbled” on a letter that was thought provoking in this period of high unemployment and borderline recession. Jack Durham of Fort Worth, Texas proposes that… Continue Reading

Court Enters Judgment Against Police Officers on Overtime Suit Against City

Posted in Case Summaries, Wage & Hour
In a recent case out of the U.S. District Court for the Northern District of Texas, a federal judge entered summary judgment for the City of Fort Worth in an FLSA overtime case filed by four former police officers.    In Clark v. City of Fort Worth, Texas, four retired City of Fort Worth police officers filed a FLSA putative collective action seeking to represent… Continue Reading

Congressional Subcommittee to Examine the Effect of the FLSA and the Modern Workforce

Posted in Wage & Hour
This morning the Education and the Workforce Committee Subcommittee on Workforce Protections will examine whether the FLSA is outdated in today’s modern workforce.  The hearing is entitled  “The Fair Labor Standards Act: Is It Meeting the Needs of the Twenty-First Century Workplace?” According to the Subcommittee’s media advisory: Despite the broad impact of the [FLSA] on the… Continue Reading

Oral Complaints of Wage and Hour Violations Sufficient to Provide Protection from Retaliation

Posted in Case Summaries, Retaliation, Wage & Hour
The Fair Labor Standards Act is the federal law that requires most employers to pay a minimum wage and overtime.  The FLSA also includes an anti-retaliation provision that prohibits an employer from discharging any employee who has "filed a complaint" under the FLSA because of that complaint.  The issue at the high court in Kasten v. Saint-Gobain… Continue Reading

Fifth Circuit Holds that FLSA Action Is Improper Forum for Employer to Seek Set-Off Against Wage and Overtime Claims

Posted in Case Summaries, Judicial Updates, Wage & Hour
Employers often consider asserting counterclaims against employees who file lawsuits against them.  Most lawyers representing employers counsel against filing counterclaims except in exceptional cases (e.g., an employee’s theft of trade secrets or breach of a covenant not to compete). However, where an employer pays an employee valuable severance benefits in return for a release or a… Continue Reading

Police Sergeant Sues for Overtime Based on Time Spent Reading and Responding to E-mails

Posted in Wage & Hour
Last year I wrote about the risks associated with providing company issued cell-phones or PDA’s to nonexempt employees.  Since that post, there continues to be lawsuits filed seeking unpaid overtime for the off-the-clock time nonexempt employees spend reading and responding to work-related e-mails.  The most recent example is that of a police sergeant for the City of… Continue Reading

Facts Make the Difference in Misclassification Cases

Posted in Wage & Hour
Lawyers prosecuting and defending wage and hour misclassification cases (i.e., exempt/nonexempt and employee/contractor) will emphasize how fact intensive these inquiries can be.   The importance of factual distinctions in litigating misclassification cases is demonstrated by two cases recently decided by the Fifth Circuit.  In Cromwell v. Driftwood Electrical Contractors, a panel of the court of appeals held… Continue Reading

Fifth Circuit Holds Cable Splicer was Independent Contractor, Not an Employee

Posted in Case Summaries, Wage & Hour
In another cable splicer misclassification case arising in the aftermath of hurricane Katrina, the Fifth Circuit affirmed a trial court decision that Louis Thibault was an independent contractor rather than an employee. Therefore, he was not entitled to overtime under the FLSA. Thibault owned a business in his home state of Delaware selling picnic tables, storage… Continue Reading

DOL Issues Administrator’s Interpretation on Definition of “Clothes” and Whether Changing Clothes is a Principal Activity

Posted in Wage & Hour
The Department of Labor’s Wage and Hour Division issued its second Administrator’s Interpretation.   The Administrator Interpretations are issued by the Division in areas where it believes it is useful to clarify the law as it relates to an entire industry, a category of employees, or to all employees. Administrator’s Interpretation No. 2010-2 discusses the Fair Labor Standards Act’s… Continue Reading

Fifth Circuit Affirms Donning and Doffing Judgment for Employer

Posted in Case Summaries, Wage & Hour
There has been a significant amount of litigation against employers over the compensability of work time for putting on and taking off safety-related clothing and equipment prior to the start of a shift but necessary for the work to be performed.  For example, Pilgrim’s Pride Corporation recently agreed to pay $1 million in back wages to settle a donning… Continue Reading

Fifth Circuit Reverses Judgment for Company that Classified Employees As Independent Contractors

Posted in Wage & Hour
Recently I wrote about the risks posed by misclassifying employees as independent contractors.   In an unpublished opinion, the U.S. Court of Appeals for the Fifth Circuit (the federal appellate court that hears appeals from Texas) reversed a summary judgment awarded in favor of a company that had classified two cable splicers who performed post-Katrina telecommunications repair… Continue Reading

Balancing Employee Efficiency with Overtime Risk: Hourly Employees Use of Smart Phones for Work

Posted in Human Resources, Wage & Hour
Employees frequently stay connected with work through company issued smart phones.  Smart phones, like the iPhone, Blackberry, and Treo, allow employees to have access to their work e-mails, calenders and contacts –in addition to making and receiving calls.  In my practice, a smart phone is incredibly useful in staying in touch with my client’s needs when I’m in… Continue Reading

Houston Jury Finds Restaurant Tip Pool was Unlawful

Posted in Wage & Hour
Most wage and hour lawsuits in Texas focus on an employer’s alleged misclassification of an employee as exempt from overtime.  However, a recent jury verdict from a federal court in Houston teaches that even in a highly unregulated wage and hour state like Texas, there are other wage and hour provisions employers must comply with and that can lead… Continue Reading