Wage & Hour Counsel : Wage & Hour Lawyer & Attorney : Littler Mendelson Law Firm : Employment Law, Labor Relations

This week, Rep. Linda Sanchez (D-CA) introduced legislation that would extend the federal minimum wage and overtime protections of the Fair Labor Standards Act (FLSA) to most home care workers, improve federal and state data collection and oversight with respect to the direct care workforce, and create a grant program to help states recruit and train direct care workers. Specifically, the Direct Care Workforce Empowerment Act (H.R. 5902) would limit the “companionship services” FLSA exemption to those who work 20 or fewer hours per week. To learn more about the bill, please continue reading at Littler's D.C. Employment Law Update blog.

Photo credit: AlexRaths

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Following a Connecticut district court’s denial of summary judgment to the employer in Ruggeri v. Boehringer Ingelheim Pharmaceuticals, Inc., a collective action brought by pharmaceutical sales representatives who claimed the were improperly classified as exempt employees, the pharmaceutical company has been hit with another putative collective action by sales representatives seeking overtime wages. But in this new case, Lopez-Lima v. Boehringer Ingelheim Pharmaceuticals, filed on July 21, 2010 in the federal District Court for the Southern District of Florida, plaintiffs allege that Boehringer hired them as “non-exempt commission-paid pharmaceuticals sales representative[s].” To learn more about the case, please continue reading at Littler's Healthcare Employment Counsel blog.

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The Department of Labor’s Wage and Hour Division (WHD) has released a fact sheet to help employers comply with the lactation break time obligations established by the new health care law. The Patient Protection and Affordable Care Act (“Affordable Care Act”) amends section 7 of the Fair Labor Standards Act (FLSA) to require employers to provide rest breaks and suitable space for employees who are nursing mothers to express breast milk for up to one year after the child’s birth. To learn more about the fact sheet, please continue reading at Littler's Washington D.C. Employment Law Update blog.

Photo credit: camilla wisbauer
 

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On July 19, 2010, in Jackson v. Alpharma Inc., the United States District Court for the District of New Jersey held that Alpharma, Inc.’s pharmaceutical sales representatives qualify as exempt administrative employees under the Fair Labor Standards Act (“FLSA”). The court’s unpublished opinion relies in part on the Third Circuit’s holding in Smith v. Johnson & Johnson, 593 F.3d 280 (3d Cir. 2010).

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The Ninth Circuit Court of Appeals recently rejected a Texas corporation’s argument that drivers who performed services for the company were independent contractors—and therefore not subject to the requirements of the California Labor Code—because their contracts with the company contained a Texas choice of law provision. In Narayan v. EGL, Inc., the Ninth Circuit reversed the district court’s decision to grant the company’s motion for summary judgment and instead remanded the case for trial. In so holding, the Ninth Circuit demonstrated the heavy burden imposed on companies seeking to establish an independent contractor relationship, even when the company has a written contract designating the workers as independent contractors.

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The Federal Motor Carrier Safety Administration (“FMSCA”) recently announced its intent to grant a limited, two-year exemption from federal hours of service rules for certain drivers engaged in the transportation of ammonia. The FMSCA, a division of the U.S. Department of Transportation, is currently seeking public comments regarding this proposal.

The FMSCA administers the regulations governing the maximum driving and on-duty time for drivers utilized by motor carriers. On March 22, 2010, FMSCA announced a 90-day waiver of these regulations for drivers involved in the transportation of certain ammonia products.

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On July 6, 2010 the Second Circuit Court of Appeals ruled in In re Novartis Wage and Hour Litigation (“In re Novartis”)¹ that Novartis Pharmaceuticals Corporation’s pharmaceutical sales representatives (“Reps”) did not meet the requirements of the administrative or outside sales exemptions under the Fair Labor Standards Act (FLSA) and therefore were incorrectly classified as exempt employees. In so doing, the Second Circuit reversed a decision by the district court for the Southern District of New York and reached a conclusion contrary to that reached by the Third Circuit in the recent Smith v. Johnson & Johnson case.

In support of its decision, the Second Circuit found the following facts: In visits typically lasting no more than five minutes, the Reps provide physicians with information about the benefits of Novartis pharmaceuticals and encourage them to prescribe the products to their patients. Reps may give physicians reprints of clinical studies about the pharmaceuticals, identify the Novartis products for which insurers will pay, organize meals and programs to promote particular products, give physicians samples of drugs, and in many instances get physicians to say they will prescribe Novartis products in the future. Although physicians cannot purchase drugs directly from the manufacturer, the Reps seek verbal commitments from physicians to prescribe Novartis’s drugs to their patients.

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Back in April, we reported that the Division of Wage and Hour Compliance at the New Jersey Department of Labor and Workforce Development was reconsidering its prior enforcement policy rejecting federal “rounding” rules under New Jersey law. On July 6, the Department formally announced its proposal to adopt a new rule which would adopt, verbatim, the federal regulation regarding the use of time clocks and rounding practices. The Department explained that

“[The proposed new rule would] eliminate any possible confusion regarding the Department’s wage and hour enforcement policy relative to the use of time clocks and ‘rounding’ practices.”

Specifically, the proposed rule will bring New Jersey back into conformity with federal law, creating a “straight forward and simple approach” for employers in New Jersey.

A public hearing on the proposed new rule will be held on July 29, 2010, at the office of the New Jersey Department of Labor and Workforce Development in Trenton, New Jersey.

This entry was written by Robert W. Pritchard.

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The Nevada Labor Commissioner announced that, effective July 1, 2010, Nevada’s minimum wage increased as follows:

• Employers not offering qualifying health insurance benefits must pay employees a minimum wage rate of $8.25 per hour (up from $7.55 per hour).
• Employers offering qualifying health insurance benefits must pay employees a minimum wage rate of at least $7.25 per hour (increased from $6.55 per hour).

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