Home healthcare agencies and other third party employers of home care workers recently lost a key fight to prevent the Department of Labor (“DOL”) from eliminating Fair Labor Standards Act (“FLSA”) exemptions for employees who provide companionship services and live-in care within a home. On August 21, the District of Columbia Court of Appeals reversed a district court decision invalidating the regulations, meaning that employers in at least 27 states (where state law has not afforded the home care workers with minimum wage or overtime protections) should now modify their pay practices to conform with the new regulations.
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Webinar Recap: How To Prepare for the “Fair Pay and Safe Workplaces” Proposed Rule and Accompanying Guidance
Yesterday, I presented an hour-long webinar discussing how to prepare for and navigate the “Fair Pay and Safe Workplaces” proposed rule and accompanying guidance.
On May 28, 2015, the Obama Administration published the much anticipated proposed DOL guidance and accompanying Federal Acquisition Regulation (FAR) proposed rule implementing EO 13673, Fair Pay and Safe Workplaces (July
The Growing Risks of Non-Compliance with Wage Rate Determinations
A Maryland-based construction company required to pay “prevailing wages” under a Federal government contract recently settled for $400,000 claims that it had violated the False Claims Act (“FCA”) by failing to properly supervise lower-level contractors in the payment of prevailing wages to their workers. The case serves as a reminder that government contractors who fail to ensure compliance with wage requirements – whether under the Davis-Bacon Act (“DBA”), Service Contract Act (“SCA”), or Walsh-Healy Public Contracts Act (“PCA”) – can face significant liability. It also highlights the ongoing expansion of the federal government’s battle against procurement fraud.
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What Makes a Volunteer? Sixth Circuit Clarifies Test for Determining Employment Status of Volunteers
Volunteerism is good and should be encouraged by employers. However, with its use come concerns that the persons engaged in the labor may not actually be considered volunteers by the courts. This is particularly true in the Sixth Circuit, where the court of appeals has rejected the “threshold-remuneration test,” an employer-friendly test that looks primarily and initially at whether there was any compensation or remuneration provided or intended for the work. The Sixth Circuit instead applies a balancing approach in which it considers all the common law of agency factors, raising questions as to how a court might “strike the balance.” In light of this uncertainty, employers should consider the following:
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Massachusetts Becomes the Third State to Require Paid Sick Days
Voters in Massachusetts have approved a statewide law mandating employers with at least 11 employees provide those employees with up to 40 hours of paid sick time per year. This mandate makes Massachusetts the third state requiring paid sick days, behind Connecticut and California. Under the new law, effective July 1, 2015, Massachusetts employees can
DOL Publishes Rule to Raise Minimum Wage to $10.10 on Federal Contractors
The White House and the Department of Labor (DOL) released a proposed rule that would raise the minimum wage for employees under federal contracts from $7.25 to $10.10 per hour, a 39% increase. The proposed rule implements Executive Order 13658, Establishing a Minimum Wage for Contractors, which was signed by President Obama on February 12, 2014. That order applies to new and renegotiated contracts starting January 1, 2015.
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Successor Liability in “Asset Deal” Extends to Wage/Hour Liability
The Seventh Circuit recently held that a purchaser in an “asset deal” of a business in receivership was found to be a successor employer for the purposes of a $500,000 wage/hour settlement. The liability was imposed on the purchaser even though the contract formalizing the asset deal expressly excluded that liability. Teed v. Thomas & Betts Power Solutions, LLC. Found here.
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Wage and Hour: Why So Many Lawsuits?
Lawsuits under the minimum wage and overtime laws have become a cottage industry. Filings of these lawsuits have increased 400% from 2000 to 2011. Why? While some reasons may depend upon whom you ask (and their political leanings), there are clearly some trends, as noted in a recent article here.
A few reasons:
- The Fair Labor Standards Act (FLSA) was passed in 1938 and the substance of its provisions has remained constant since then. But, our economy has changed dramatically – from a primarily manufacturing-based economy then, to a primarily service-based economy now. This leads to some “square peg/round hole” problems as employers try to apply concepts from a bygone era to a new economic reality.
Sixth Circuit Recognizes Potential RICO Claim If Employees Wrongfully Denied Workers’ Compensation Benefits
Employees in Michigan, Ohio, Kentucky and Tennessee who believe they have been wrongfully denied workers’ compensation benefits now have a new weapon – RICO. In Brown v. Cassens Transport Co., 6th Cir., No. 10-2334, 4/6/12, five employees sued their employer, a claims adjuster and a doctor alleging conspiracy to deny them workers’ compensation benefits. The Sixth Circuit Court of Appeals ruled that the lawsuit stated a claim under RICO.
RICO, the Racketeer Influenced and Corrupt Organizations Act, requires that an alleged victim identify four elements: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. Each element requires an additional analysis: an “enterprise” is marked by association and control; a “pattern” requires a showing of “continuity”, which is continuous and related behavior that amounts to, or poses a threat of, continued criminal violations; and “racketeering activity” involves the violation of designated federal laws. In addition, an alleged victim must allege that he was injured in his business or property “by reason of” a violation of RICO’s substantive provisions.
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Do Bouncers Provide Customer Service? The Challenges of Tip Pooling
On February 13, 2012, the federal district court for the Middle District of Tennessee granted conditional certification of a class action case under the Fair Labor Standards Act (“FLSA”) against Coyote Ugly saloons. As reported by Law360, the court conditionally certified several distinct classes, the most interesting of which is all employees who “worked as bartenders, barbacks, or waitresses at any company-owned Coyote Ugly saloon at any time within the last three years who were required to contribute their tips to a “tip pool” in which security guards also participated.” Under the FLSA, an employer may take a “tip credit” against the minimum wage owed to employees. That is, an employer may pay a tipped employee $2.13 an hour under the FLSA (note that the amount of the tip wage can vary by state or local law), and then rely on the tips received by a server to make up the difference between $2.13 and the minimum wage. (If the tips received by the employee are insufficient to bring the employee’s compensation up to minimum wage, the employer must make up the difference.)
The FLSA also permits a “tip pool”; that is, an employer may require servers to contribute a portion of their tips to a tip pool and then pay out the funds in the tip pool to other employees who “customarily and regularly” receive tips (See Wage and Hour Fact Sheet #15: Tipped Employees under the Fair Labor Standards Act). Such a rule immediately reveals the nature of the challenge in complying with the FLSA regulations regarding a tip pool. If the employees “customarily and regularly” received tips directly, they wouldn’t need to be in a tip pool! The regulations and case law have gradually come to define an employee who “customarily and regularly” receives tips as an employee who participates in directly providing service to the customer – such as the hostess at the front door and perhaps a busboy or bartender (as opposed to the dishwasher in the “back of the house”.) One of the factors used to determine whether an employee may be paid out of the tip pool is the extent to which they have any “face-to-face” contact with the customer. See Kilgore v. Outback Steakhouse of Florida, Inc., 160 F.3d 294 (6th Cir. 1998).
Continue Reading Do Bouncers Provide Customer Service? The Challenges of Tip Pooling