By Russell Cawyer on Posted in News & Commentary,Wage & HourOne of the biggest criticisms I have of the FLSA is that it provides no safe harbor or protection for an employer, who having realized it made a wage and hour mistake, to voluntarily self-report and correct its mistake. Instead, it can encourage employers who learn of a potential FLSA violation that has not otherwise been… Continue Reading
By Russell Cawyer on Posted in Human Resources,News & Commentary,Wage & HourThe U.S. Department of Labor recently abandoned its six-factor internship test in favor of the seven-factor primary beneficiary test utilized by most Courts. The primary benefit test adopts a temporal limitation for the internship that was not in the old six-factor test and incorporates two elements linking eligibility to the intern’s education programs and academic commitments. For employers already… Continue Reading
By Russell Cawyer on Posted in Case Summaries,Wage & HourIn Texas, an employer can satisfy its overtime obligation to nonexempt employees whose hours fluctuate from week-to-week and are paid on a salary basis, by using the fluctuating workweek (FWW) method of overtime compensation. Under the FWW, a nonexempt employee who has hours of work which fluctuate from week to week may be paid a… Continue Reading
By Russell Cawyer on Posted in Case Summaries,Retaliation,Wage & HourThe 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
By Russell Cawyer on Posted in Discrimination,News & Commentary,Wage & HourYesterday, the EEOC published its four-year Strategic Enforcement Plan for fiscal years 2017 through 2021. The Plan is the Commission’s list of areas of priority where it intends to focus its resources in the next four years. The purpose of the Plan is to identify those areas the Commission believes are likely to have a… Continue Reading
By Russell Cawyer on Posted in Human Resources,Wage & HourThis 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
By Russell Cawyer on Posted in Human Resources,News & Commentary,Wage & HourLast night the U.S. Department of Labor announced details of its long-awaited Final Rule on changes to the regulations interpreting the overtime exemptions to the Fair Labor Standards Act (FLSA). The FLSA is the federal law requiring most employers to pay minimum wages and overtime to nonexempt employees. The Final Rule raises the minimum salary an exempt… Continue Reading
By Russell Cawyer on Posted in Wage & HourWhile many of the kids (and a few employment law attorneys) are on Spring Break, I thought I would dust off a few posts from the archives. Back in 2009 I wrote about the rules that apply to the payment of accrued but unused vacation time on termination of employment in Texas. If you are not on… Continue Reading
By Russell Cawyer on Posted in News & Commentary,Wage & HourWith the slowdown in the oil patch, many service providers are looking for ways to better match employee compensation with reduced amount of work and revenue available without having to reduce headcount. One way to accomplish this objective is to pay different rates for different work. For example, a company may elect to pay a nonexempt employee a… Continue Reading
By Russell Cawyer on Posted in News & Commentary,Wage & HourThe New York Times profiled AT&T’s corporate education program where the company offers to pay for all or part of the classes employees take to help modernize their skills. The program has been in place for approximately two years and the purpose of the program, according to the article, is to “retrain its 280,000 employees so they… Continue Reading
By Russell Cawyer on Posted in News & Commentary,Wage & HourThe DOL announced a wage and hour settlement with Halliburton where Halliburton agrees to pay over $18,000,000 to over 1,000 workers. This settlement emphasizes two important points for me. First, it exemplifies the difficulty even large, publically traded companies can have in determining whether an employee meets one of the white collar exemptions. The announced settlement covers employees in the job titles… Continue Reading
By Russell Cawyer on Posted in Case Summaries,Wage & HourThe wave of wage and hour collective actions being filed and litigated in the district courts in the Fifth Circuit are making their way to the court of appeals. Last week the U.S. Court of Appeals for the Fifth Circuit issued an opinion in an FLSA case over the compensability of meal periods provided by… Continue Reading
By Russell Cawyer on Posted in Wage & HourI’ve written several times on the topic of employee v. independent contractor misclassification (here, here, here, here, here, here). Yesterday, the DOL issued an Administrator’s Interpretation attempting to provide additional guidance, and the Department’s opinion, on the application of the standards for determining whether a worker is an employee or an independent contractor. The Interpretation implies… Continue Reading
By Russell Cawyer on Posted in Human Resources,Wage & HourThere has been an explosion of wage and hour collective actions failed against Texas employers in the last five years. This has been particularly prevalent in the oil field services sector. If you are a Texas employer, and using any of 12 pay practices below, you should consult with an employment lawyer to ensure you… Continue Reading
By Russell Cawyer on Posted in Case Summaries,Wage & HourIt’s a rare day with the U.S. Department of Labor is assessed attorney’s fees against it for bringing a suit against an employer in bad faith. However, in Gate Guard v. Secretary of Labor, the Fifth Circuit Court of Appeals ordered that a trial court award attorney’s fees to a Texas employer in a claim… Continue Reading
By Russell Cawyer on Posted in News & Commentary,Wage & HourPresident Obama has announced that a soon to be released proposed rule from the U.S. Department of Labor will include an increase in the minimum salary necessary for an employee to qualify as an exempt employee. Under the proposal announced by @POTUS today, by 2016, employers will have to pay exempt employees a minimum or… Continue Reading
By Russell Cawyer on Posted in Wage & HourAs 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
By Russell Cawyer on Posted in News & Commentary,Wage & HourOne of the many problems with the Fair Labor Standards Act (the federal law that requires most employee be paid at least a minimum wage and overtime) is that it provides little incentive for employers that discover honest wage and hour mistakes such as a misclassification or a failure to correctly calculate overtime to fix those mistakes. … Continue Reading
By Russell Cawyer on Posted in Human Resources,News & Commentary,Wage & HourAccording to a recent article by DLA Piper, more employees are requesting to be paid in Bitcoin. Bitcoin is a virtual or digital currency usually used for online payments. Although Bitcoin has only been around for five or six years and I doubt it will ever be used for the widespread payment of wages, Texas… Continue Reading
By Russell Cawyer on Posted in Arbitration,Case Summaries,Wage & HourI first wrote about the NLRB’s decision that pre-dispute arbitration agreements waiving the right to assert claims as part of a class action violated federal labor law in January 2012 (post). Back then, I thought it was prudent for employers to wait for the result of the the inevitable appeal that would follow before revising or… Continue Reading
By Russell Cawyer on Posted in Case Summaries,Wage & HourIn 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
By Russell Cawyer on Posted in Case Summaries,Wage & HourIn what could become an important case for employers faced with FLSA wage and hour collective actions, the United States Supreme Court held that a named plaintiff who rejects an offer of judgment for full relief before any other party joins the action cannot continue to pursue the claims on behalf of the putative class because the… Continue Reading
By Russell Cawyer on Posted in Wage & HourYesterday the Fifth Circuit Court of Appeals affirmed, a judgment for an employer who was sued by its employees for travel time that the employer did not include as working time. Its a complicated set of facts and you can read Griffen v. S&B Engineers and Constructors, Ltd. here if you’re interested. While most employers don’t have travel time issues nearly as… Continue Reading
By Russell Cawyer on Posted in Case Summaries,Discrimination,Wage & HourI wrote back in April 2010 that I thought the Houston Court of Appeals decision in Prarie View A&M v. Chatha applying the federal Lilly Ledbetter Fair Pay Act (“Ledbetter Act”) to claims arising under the Texas Commission on Human Rights Act (TCHRA) was wrongly decided. Last month the Supreme Court of Texas agreed with me… Continue Reading
