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

Bipartisan legislation introduced in the Senate last week would update the Fair Labor Standards Act’s (FLSA) computer employee exemption. Section 13(a)(17) of the FLSA establishes minimum wage and overtime exemptions for computer systems analysts, computer programmers, software engineers, or other similarly skilled workers provided that these employees’ specific job duties and compensation meet certain requirements. To learn more about the legislation and its potential implications for employers, please continue reading at Littler's Washington D.C. Employment Law Update blog.

Photo credit: PressFoto

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In 2011, for the first time since 2003, California's legislative process was controlled by a governor and a legislature of the same party. Yet the results at the end of this year's session were not as one-sided as some had predicted or expected. In the first year of his second administration as Governor of California, Jerry Brown stayed true to his promise to paddle on both sides of the canoe when deciding which of the 889 bills presented to him he would sign, and which he would veto. For California private sector employers, the results reflect the governor's methodology. To learn more about the bills signed into law this month by California's governor that affect all, or many, California private sector employers, please continue reading Littler's ASAP, Paddling on Each Side: How California Private Sector Employers Must Change Their Operations in 2012, by Christopher Cobey and Isela Pérez.

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By Bruce Sarchet, Dylan Wiseman, and Eric Ostrem

When an employee is sued by his or her employer for alleged wrongdoing related to the job, and the employee wins, does the employer have to pay the employee's attorney fees? In Nicholas Laboratories, LLC v. Chen,¹ published on October 12, 2011, a California Court of Appeal answered “no,” at least not under California Labor Code section 2802.

In that case, Nicholas Labs sued its own director of information technology, Christopher Chen, alleging that he engaged in a side-business that competed with the company, diverted business opportunities away from the company, stole certain computers and printers, and misused a company credit card, among other things.² Chen responded with a cross-complaint against his employer, arguing that the company should have to pay his legal bills if he wins the case. On the verge of trial, Nicholas Labs agreed to dismiss its claims against Chen as long as Chen agreed to let the judge, instead of a jury, decide his cross-complaint for attorneys’ fees.

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Rep. Lynn Woolsey (D-CA) has reintroduced legislation that would create new record-keeping requirements for employers that hire independent contractors, and impose stricter penalties for misclassification. Notably, the Employee Misclassification Prevention Act (H.R. 3178) would amend the Fair Labor Standards Act (FLSA) to require employers to keep records on and notify workers of their employment or independent contractor classification and their right to challenge that classification. To learn more about the proposed legislation and its potential implications for employers, please continue reading at Littler's D.C. Employment Law Update blog.

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By Jennifer Robinson, Eric Stevens and Rachel Ross

As a general rule, the Fair Labor Standards Act does not require an employer to pay an employee’s travel time between home and their regular place of work. However, Tennessee employers should be aware of another travel time issue – Are employees serving on jury duty entitled to compensation for travel time to and from jury duty when the employee is not compensated for travel as part of the employee’s usual compensation? According to an Opinion just issued by the Tennessee Attorney General, the answer is YES, “subject to certain limited exceptions.”

TCA 22-4-106(b) requires, in pertinent part:

(b) Notwithstanding the excused absence as herein provided in subsection (a), the employee shall be entitled to the employee's usual compensation received from such employment; however, the employer has the discretion to deduct the amount of the fee or compensation the employee receives for serving as a juror. Moreover, no employer shall be required to compensate an employee for more time than was actually spent serving and traveling to and from jury duty. 

On its face, the new Opinion seems straightforward – employees should be paid their travel time for jury duty even if that same travel time would not be compensable if the employee was traveling to or from work. However, as with most broad “clarifications,” this Opinion leaves several open questions.

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By Tammy McCutchen*

There has been an important change in New Jersey law which may require employers to take immediate action: In recent amendments to its overtime regulations, New Jersey eliminated the exemption for sales employees paid on commission, which closely tracked an exemption in Section 7(i) of the Fair Labor Standards Act (sometimes known as the “inside sales” exemption). Because New Jersey law is now more protective than the FLSA, at present, it appears likely that employers cannot classify commissioned inside sales employees as exempt from overtime pay.

Like the FLSA, the New Jersey overtime pay statute includes exemptions for executive, administrative, professional and outside sales employees. See New Jersey Statutes § 34:11-56a4. Although the New Jersey statute does not contain an exemption similar to the FLSA Section 7(i), the New Jersey regulations had defined “administrative” employees as including “an employee whose primary duty consists of sales activity and who receives at least 50 percent of his or her total compensation from commissions and a total compensation of not less than $400.00 per week.” N.J.A.C. § 12:56-7.2(b).

New Jersey recently amended 12:56-7.2 of their regulations so that it simply adopts the federal regulations at 29 C.F.R. Part 541; the regulation now states: “Except as set forth in (b) below, the provisions of 29 CFR Part 541 are adopted herein by reference.”

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Three years after review was initially granted, on November 8, 2011, the California Supreme Court will hear oral arguments in Brinker Restaurant Corporation v. Superior Court and determine whether under California law an employer's obligation is to provide meal and rest periods, or to ensure that meal and rest breaks are actually taken.

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