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

By Christopher B. Kaczmarek and Jeanne Barber

Judge Gertner of the U.S. District Court for the District of Massachusetts recently issued an opinion rejecting the Klinghoffer rule, potentially making it easier for a plaintiff to prevail on claims that his or her employer failed to pay the minimum wage. Under the Klinghoffer rule, which takes its name from the case of United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487 (2d Cir. 1980), courts apply a weekly-average method to determine whether an employer is in compliance with the minimum wage requirement of the Fair Labor Standards Act. Applying this rule, courts have declined to find a minimum wage violation as long as the total weekly average wage divided by the hours actually worked is at least equal to the applicable minimum wage. For example, assume an employee works 26 hours per week at a rate of $10 per hour, earning $260 each week. Even if this employee worked an additional four hours for which she was not paid, her average hourly wage would equal $8.67, exceeding the minimum wage.

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By Christopher Cobey

In September, Governor Brown signed a bill (A.B. 240) that will equalize the penalties available to employees and the defenses available to employers on certain employee wage claims, brought either in court or in the administrative system.

Under current California law, an employee who wishes to bring a claim alleging payment of less than the minimum wage has a choice of making that claim either in California Superior Court or in an administrative proceeding before the Labor Commissioner (the chief of the Division of Labor Standards Enforcement). A significant difference in the remedy available to a successful claimant between the court and the administrative agency is that a judge in a court proceeding could award the claimant liquidated damages equal to the amount of the wages unlawfully unpaid and the interest on that sum. The Labor Commissioner, however, had no authority to award liquidated damages as a remedy to a successful claimant.

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By Milton Castro

California Governor Edmund G. Brown recently signed Assembly Bill No. 587 (AB 587) into effect, one of two recent amendments to the California Labor Code. Before AB 587, volunteer workers were exempted from the Code’s requirement that all workers employed on public works projects be paid not less than the general prevailing rate of per diem wages, but only until January 1, 2012. AB 587 extends the exemption by five years, to January 1, 2017.

When the exemption was first introduced in 2004, proponents argued that a public works exemption for volunteers was needed due to the “importance of volunteers in building community support for local projects,” many of which included environmental projects such as restoration of streams and wetlands. AB 587’s proponents claim that the exemption has since proven successful and thus its extension is necessary to allow volunteers, many of whom are students, to continue participating in preservation activities on public lands.

Photo credit: Mangostock

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By Alison Hightower

A social worker required to hold a bachelor’s degree in social or human services, behavioral science or an allied field does not necessarily qualify as a “learned professional,” properly exempt from overtime under the Fair Labor Standards Act, the Ninth Circuit recently held in Solis v. State of Washington DSHS (No. 10-35590 (Sept. 9, 2011).

The social workers in question were public employees of the State of Washington’s Department of Social and Health Services (DSHS), tasked with identifying the needs of children and their families and arranging for services to assure the children’s safety and well-being. Their obligations included investigating child abuse and neglect, developing treatment plans and recommending such plans to the courts, evaluating the progress children and families made in following those treatment plans, making placement decisions, and even recommending whether parental rights should be terminated.

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By Michael Gregg

A federal district court recently issued a decision in Hernandez v. Alpine Logistics, LLC, that requires employers to pay overtime compensation to employees who are otherwise exempt from overtime under the Motor Carrier Act for any workweek that the employee operates a vehicle weighing 10,000 pounds or less.

The primary issue in Alpine Logistics was whether employees who drove both larger vehicles (10,001 pounds or more) and smaller vehicles (10,000 pounds or less) were exempt from overtime under the Motor Carrier Exemption. The court pointed to Department of Labor Wage and Hour Division Fact Sheet # 19 in support of its holding that employees who drove both larger and smaller vehicles during the same workweek were entitled to overtime compensation. The court held that the Motor Carrier Exemption does not apply to an employee during workweeks in which the employee operates a smaller vehicle even if the employee also operates a larger vehicle during the same week.

Employers with a mixed fleet of vehicles should review their classification decisions and/or vehicle assignments to assess any potential exposure the Alpine Logistics decision may present.

To learn more about the decision and its implications for employers, please continue reading Littler's ASAP, Employers that Operate a Mixed Fleet of Vehicles May Lose the Motor Carrier Overtime Exemption.

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By Christopher Kaczmarek and Jeanne Barber

In July 2008, Massachusetts amended its state wage and hour laws to provide for mandatory awards of treble damages for plaintiffs who prevailed under those statutes. Since then, lawyers have disagreed as to whether this treble damages provision should apply retroactively. On August 31st, the Massachusetts Supreme Judicial Court resolved this dispute by unanimously holding that the treble damages provision does not apply retroactively.

In Rosnov v. Molloy, the plaintiff, an attorney, filed a complaint on April 17, 2007, claiming that her former partner withheld commissions from her in violation of the Massachusetts Payment of Wages Law. A jury found in favor of the plaintiff in March of 2009.

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