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

On January 20, 2011, the Governor of Maine, Paul R. LePage, issued an Executive Order abolishing the State’s Joint Task Force on Employee Misclassification. The Task Force was established by former Governor John Baldacci in 2009 to address concerns that employers allegedly were misclassifying employees as independent contractors to avoid obligations under federal and state laws, including laws governing wage and hour issues. According to the Executive Order issued by Governor LePage, the Task Force added an unnecessary “extra layer of bureaucracy, to take actions on a matter within the shared jurisdiction of the Legislature, the Executive Department and the Judicial Department.” The Executive Order also notes that future legislation could negate or alter the Task Force’s determinations and that the Task Force has created uncertainty within the business community. Governor LePage has expressed concern that the various definitions and rules governing independent contractors under state and federal law have gone “too far” and caused some businesses to virtually eliminate their use of independent contractors. Accordingly, the Governor asked his staff to draft legislation addressing the varying classification standards and establishing the same definition of “independent contractor” for all agencies and businesses.

This entry was written by Sarah Green.

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The Seventh Circuit recently reversed the denial of class action certification in a Fair Labor Standards Act (FLSA) collective action, rejecting the notion that FLSA collective actions and state-law class actions are incompatible when filed in the same lawsuit. Ervin v. OS Rest. Servs., No. 09-3029, 2011 U.S. App. LEXIS 863 (7th Cir. Jan. 18, 2011).

In Ervin, the plaintiffs, former and current employees of a popular restaurant, sued the restaurant on behalf of themselves and all others who had previously worked or were currently employed at the restaurant as hourly or tipped employees, claiming that the restaurant’s tipping policy violated both the FLSA and two state wage & hour laws – the Illinois Minimum Wage Law and the Illinois Wage Payment and Collection Act.

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Its that time of year again. Freezing rain and snow making daily commutes difficult and dangerous; school closings keeping parents at home to care for their kids; businesses deciding to close operations. Thus, it may be a good time to review your inclement weather policy to ensure compliance with the Fair Labor Standards Act (FLSA).

For non-exempt employees, compliance under federal law is simple. Non-exempt employees must only be paid for time actually worked. The FLSA does not require non-exempt employees to be paid when they do not come to work due to inclement weather. However, employers do need to be cognizant that although federal law has no such requirements, some states have "reporting time pay" laws that require non-exempt employees be paid whenever the employee reports to work as required or requested by the employer, even if no work is available. (See our ASAP on reporting time pay).

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A number of severe winter storms have hit different regions of the United States during the past few weeks. These storms create a myriad of problems for employers. One problem that often is overlooked is whether an employer who shuts down its operations still must pay those employees who report to work. Although such pay is not required by federal law, a number of states have enacted "reporting pay" laws which may be applicable in these circumstances. See our recent ASAP for a detailed analysis of the potential implications of such reporting pay laws.

This entry was written by Christopher Kaczmarek.
 

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In a very favorable decision for healthcare employers facing the onslaught of wage and hour class and collective actions, in Wolman v. Catholic Health System of Long Island, a federal district court in New York dismissed the plaintiffs’ Fair Labor Standards Act (FLSA) claims for failure to provide sufficient facts to state a claim, and declined to exercise supplemental jurisdiction over plaintiffs’ state wage law claims. To learn more about the decision and its implications for employers, please continue reading at Littler's Healthcare Employment Counsel blog. 

Photo credit: MSRPhoto

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In a parting "holiday gift" to New York employers, Governor David Paterson, as one of his last official acts in office, signed on December 13, 2010, a sweeping reform of the New York Labor Law entitled the Wage Theft Prevention Act (the "WTP Act"). The WTP Act, which becomes effective on April 9, 2011, modifies numerous sections of the New York Labor Law and imposes new recordkeeping and notice obligations on virtually every company that employs people in the state. To learn more about the Act and its implications for employers, please continue reading Littler's ASAP, Lame Duck Reform: New York's Wage Theft Prevention Act, by Barbara E. Hoey and Gary D. Shapiro, and read our previous post: New York Enacts Wage Theft Prevention Act.

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As we wrote last month, the New York State Department of Labor has issued amended wage regulations for restaurants and hotels effective January 1. The DOL has now issued a notification to employees that the employer must post the regulation’s requirements in a conspicuous place in the establishment. Note that the poster is somewhat misleading with respect to the overtime rate for tipped employees. Overtime for tipped employees is one and one half times the minimum wage less the tip credit.

The poster also mentions call-in pay and spread-of-hours pay. Call-in pay is additional hours at minimum wage owed to employees who are sent home early. Spread-of-hours pay is an additional hour of pay at minimum wage owed to any employee when the length of the interval between the beginning and end of his or her workday exceeds ten hours. It should be kept in mind that while employers will have until March 1, 2011, to implement the required changes, the changes must be retroactive to January 1, 2011. Therefore, it is imperative that employers begin keeping thorough records of hours worked and wages and tips paid.

This entry was written by Andrew Marks.

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There is good news for New Jersey employers who utilize rounding. The New Jersey Department of Labor and Workforce Development has reconsidered its prior rejection of federal "rounding" rules. After a public comment period, the Department formally adopted a new rule which adopts, verbatim, the federal regulation regarding the use of time clocks and rounding practices. Under the new rule, rounding is lawful under New Jersey law so long as it "averages out ... over a period of time." This development means that New Jersey employers no longer need to assess the impact of rounding on a week-to-week basis. While this is a welcome development, employers who utilize rounding should remain vigilant to ensure that rounding is not "one sided" and that it does, in fact, average out over time.

This entry was written by Robert W. Pritchard.
 

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