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Wage and Hour Laws Blog

The application of a key Supreme Court decision remains an important issue for multi-state employers defending federal collective action wage and hour claims – but are we any closer to getting clarity on what remains a frustrating patchwork standard? Many courts that have applied the 2007 SCOTUS decision in Bristol-Myers Squibb Co. v. Superior Court of California (BMS) in Fair Labor Standards Act (FLSA) cases have recognized the inherent problems associated with out-of-state plaintiffs’ efforts to “forum shop” and file a lawsuit in a state more favorable to employees. Another problem that courts face: plaintiffs who attempt to significantly expand the scope of their claims beyond state borders despite the lack of any meaningful connection with the state where the lawsuit is filed. Are there defenses available for employers – and is there a solution in sight?

Wage and hour litigation is not only alive and well in the U.S., but has actually been increasing at an exponential rate in the last 10 years. This popularity is in large part due to the Fair Labor Standards Act’s collective action procedure and liquidated damages penalty — as well as its penchant for ensnaring unwitting employers who happen to make simple, yet costly, mistakes.

In a win secured by members of Fisher Phillips Wage and Hour Law Practice Group, a Colorado federal court just held that employers may “reasonably approximate” vehicle-related expenses for reimbursement purposes under federal wage law. The August 26 decision deals a significant blow to the viability of minimum wage claims brought under the FLSA’s “free and clear/anti-kickback” regulations that seek to tie reimbursement of delivery driver vehicle expenses to the IRS standard business mileage rate. Less than a week after the victory in Kennedy v. Mountainside Pizza, Inc., the Department of Labor landed another haymaker by releasing an opinion letter that affirms the court’s reasoning. 

The U.S. Department of Labor (USDOL) just released a Wage and Hour Opinion Letter today addressing the fluctuating workweek, reiterating its position that an employee’s work hours do not need to fluctuate above and below 40 hours for an employer to rely upon the fluctuating workweek method of calculating overtime. However, there remain some unanswered questions that should cause employers to tread cautiously when implementing this system.

Federal courts across the country have been split on the issue of whether a court can exercise personal jurisdiction over out-of-state plaintiffs who want to opt-in into a Fair Labor Standards Act (FLSA) collective action. The Eastern District of Pennsylvania just issued a ruling siding with those courts that have minimized the number of members in a collective action, ruling that it lacked specific jurisdiction over FLSA claims of out-of-state opt-in plaintiffs who were not harmed in Pennsylvania. The August 12 decision in Weirbach v. The Cellecular Connection, LLC, is an important one, as it provides added support to employers looking to break up a putative collective and reduce their potential legal exposure.

Two recent USDOL opinion letters examine the contours of the FLSA's “outside salesman” exemption, providing helpful information to employers regarding an exemption that may appear simple and straightforward at first glance.

USDOL announced that, effective July 1, it will not seek liquidated damages in FLSA investigations as a matter of course.

Second Circuit rejected plaintiffs’ attempt to let a few anomalous weeks tarnish the proper use of the FLSA's fluctuating workweek, and, in doing so, handed employers a useful defense tool in these and similar cases.

USDOL’s final rule recognizes that employees paid under the FLSA’s fluctuating workweek method can receive commissions, weekend pay, etc. – with some caveats.

USDOL's Wage and Hour Division has clarified an aspect of the FLSA's 7(i) exemption and simultaneously reminded all that the principles, not lists and examples, control.

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