Tag Archives: Fair Labor Standards Act

Supreme Court Rules Oral Complaints Protected by FLSA But Leaves Open Questions of Notice and Formality

by Charles Wilson

On March 22nd, the Supreme Court, in Kasten v. Saint-Gobain Performance Plastics Corp., a 6-2 opinion written by Justice Breyer, ruled the Fair Labor Standards Act (“FLSA”) protects oral complaints of perceived wage and hour violations. In making such ruling, the Court resolved a conflict among the lower courts but left open the question of what is sufficient fair notice and whether an employee is required to report the complaint to a government agency rather than internally to the employer. Regardless, the Court’s ruling will likely expose employers to more risk of retaliation claims when making adverse employment decisions after an employee raises concerns about how they are compensated.

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Oral Discomfort: Supreme Court Holds That Verbal FLSA Complaints Suffice

The U.S. Supreme Court’s decision in Kasten v. Saint-Gobain Performance Plastics Corp., __ U.S. __ (March 22, 2011), holds that an employee’s oral complaint of a violation of the Fair Labor Standards Act (“FLSA”) constitutes protected conduct under the FLSA’s anti-retaliation provision.

EBG partner Frank C. Morris, Jr., discusses in an EBG Act Now Advisory the fact that the Kasten decision is merely the latest in an ever-growing series of cases where the Supreme Court has broadly interpreted protections against retaliation and for whistleblowers.  The EBG Act Now Advisory also addresses what employers should do in light of these recent decisions.

 

To review the EBG Act Now Advisory on this issue, click here.

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H-2B Reimbursements

 

By Robert S. Groban Jr

On February 15, 2011, the United States District Court for the Western District of New York denied a motion to dismiss a complaint by foreign H-2B workers that alleged that their employer violated the minimum wage provisiosn of the Fair Labor Standards Act (FLSA) by refusing to reimburse the workers’ transportation, visa and recruitment expenses. See Teoba v. Turgreen Landcare LLC, No. 10-6132 (W.D.N.Y. Feb. 15, 2011).  In Teoba, the plaintiffs seek to represent a class of H-2B workers who were recruited over a three-year period by Trugreen, a landscape services company, but not reimbursed for the recruitment, visa and transportation costs they incurred to accept employment. The district court recognized that there was a split of authority on this issue in the circuits but sided with the courts that found FLSA violations for the failure to reimburse these challenged expenses. 

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Supreme Court May Weigh in on When Employers Can Take Advantage of the "Fluctuating Workweek" Method for Calculating Overtime

By Kara M. Maciel and Jordan Schwartz

As many employers are aware, the federal Fair Labor Standards Act (“FLSA”) mandates that employers pay non-exempt employees one and one-half times their regular rate of pay for all hours worked in excess of 40 in a workweek. However, as discussed by our colleague, Richard Tuschman, in his blog post “Reducing Your Company’s Exposure on FLSA Exemption Claims,” depending on the nature of an employee’s work schedule and salary arrangement, an employer can take advantage of the “fluctuating workweek” method. In so doing, an employer may compensate a non-exempt employee for overtime compensation at a rate of one-half his or her regular rate – as opposed to the usual rate of one-and-one half times the regular rate – because such hours have already been compensated at the straight time regular rate, under the salary arrangement.     

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Does the FLSA Preempt State Wage and Hour Law Regarding Donning and Doffing?

By: Joseph D. Guarino and Jesse G. Pauker

The Supreme Court has once again been asked to address the question of whether time spent by employees donning and doffing has to be compensated. On October 29, 2010, the Court received a petition filed by Kraft Food Global, Inc., asking it to review the Seventh Circuit’s ruling in Spoerle v. Kraft Foods Global, Inc., that Section 203(o) of Fair Labor Standards Act (“FLSA”), allowing unions and employers to agree to forgo pay for donning and doffing, does not preempt state law. 

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Getting Paid for Getting Dressed

The U.S. Department of Labor recently issued a new interpretation of donning and doffing requirements under the Fair Labor Standards Act, bringing the Department’s interpretation in line with recent court decisions. The issue is whether employees should be paid for putting on and taking off clothing before and after work.

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Breastfeeding Moms at Work

The Fair Labor Standards Act (FLSA) was recently amended to allow nursing mothers to take unpaid breaks to express breast milk at work.  This amendment is codified at 29 U.S.C. 207(r)(1).  It requires an employer to provide a “reasonable” break time for an employee to express breast milk for her nursing child for one year […]

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HEALTH REFORM: Health Care Reform Legislation Amends the Fair Labor Standards Act to Give the U.S. Department of Labor Increased Enforcement Authority Over Health Care

The Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (the “Act”), significantly impacting the delivery of health care, also amends the Fair Labor Standards Act (“FLSA”). The FLSA amendments impose certain employer responsibilities in providing health care benefits, confer whistleblower protections and authorize the U.S. Department of Labor (“DOL”) to undertake increased enforcement related to health care. Employers have new requirements to learn, and to implement, under the FLSA, irrespective of their size or the number of employees in their workforce.

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U.S. Department of Labor Ramps Up Enforcement Efforts With We Can Help Campaign

On April 1, 2010, the U.S. Department of Labor (DOL) delivered on its promise to focus its agenda and resources on enforcement efforts, launching a new public awareness campaign called We Can Help.

The campaign is designed to educate workers about their rights under the federal Fair Labor Standards Act (FLSA), but its implications are more significant and far-reaching. According to the DOL’s Web site, the Wage and Hour Division is targeting workers’ rights and pay issues—and it is doing so regardless of their immigration status, reaching out to employees who are traditionally among the lowest paid, including non-citizens and/or undocumented workers. The Webs site directs workers how to file a complaint with the Wage and Hour Division, and it encourages them to provide information to the Division, including copies of pay stubs, hours of work and any information related to the employer’s pay practices.

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Ninth Circuit: Managers Can Be Liable For Unpaid Wages Upon Bankruptcy

On July 27, 2009, the U.S. Court of Appeals for the Ninth Circuit held that a corporation’s managers can be held personally liable under the Fair Labor Standards Act (“FLSA”) for wages that the corporation failed to pay to employees prior to the employer’s filing for bankruptcy. This opinion serves as a cautionary reminder of the risks managers potentially face when a corporation files for bankruptcy and has failed to pay its employees for all wages earned prior to the filing.

In Boucher v. Shaw, —- F. 3d —-, 2009 WL 2217517 (9th Cir. 2009), former employees of the Castaways Hotel, Casino and Bowling Center sued three senior managers for unpaid wages under Nevada state law as well as federal law. The managers moved to dismiss the claims based on, among other grounds, the fact that the hotel had filed for bankruptcy protection. The Ninth Circuit asked the Nevada Supreme Court to address the issue of whether, under state law, the managers could be personally liable as “employers” for the unpaid wages. The Nevada Supreme Court ruled that individual managers are not “employers” under state law. However, the Ninth Circuit ruled against the managers on the federal FLSA claims and allowed the employees’ claims to proceed.

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