Wage & Hour

Expert Analysis

• What OFCCP Enforcement Shift Means For Gov't Contractors

  

  With long-awaited directives from the Office of Federal Contract Compliance Programs showing a shift away from self-imposed constraints on enforcement, contractors should prepare for greater scrutiny, broad records requests and the agency's unsettlingly hostile position on the limits of attorney-client privilege, says Christopher Durham at Duane Morris.

• Why NLRB Is Unlikely To Succeed In Misclassification Case

  

  A recent National Labor Relations Board complaint would make the act of misclassifying workers as independent contractors a labor law violation, and while companies shouldn't expect this to succeed, they may want to take certain steps to better protect themselves from this type of initiative, say Richard Reibstein and Janet Barsky at Locke Lord.

• 11th Circ. Ban On Service Awards May Inhibit Class Actions

  

  Since the Johnson v. NPAS Solutions decision in 2020, the long-established practice of service awards for representative plaintiffs in class actions has fallen under a cloud in the Eleventh Circuit — and while the case remains an outlier, it may make class actions more difficult to bring in that jurisdiction, say William Reiss and Dave Rochelson at Robins Kaplan.

• 11th Circ. Salt Bae Ruling Provides Service Charge Blueprint

  

  The Eleventh Circuit’s recent decision in Compere v. Nusret Miami, holding that a restaurant owned by celebrity chef Salt Bae could use service charges to compensate employees, highlights the benefits of this pay plan over the tip credit, and illustrates six steps for hospitality employers to implement such a policy, say Ted Boehm and Courtney Leyes at Fisher Phillips.

• How New Bill May Affect Enforcement Of Mass. Wage Laws

  

  It would be difficult to overstate the potential impact of Massachusetts' proposed wage law legislation, which would expand liability for wage theft and enhance enforceability of the commonwealth's wage statutes, say attorneys at Seyfarth.

• Calif. College Athlete Pay Bill May Lead To Employment Issues

  

  While California’s College Athlete Race and Gender Equity Act may have a difficult time passing, it could open the door for an argument that players at academic institutions should be deemed employees, and schools must examine and prepare for the potential challenges that could be triggered by compensating college athletes, say attorneys at Morgan Lewis.

• Defeating Motions To Decertify FLSA Collective Actions

  Excerpt from Practical Guidance

  

  Matthew Helland at Nichols Kaster lays out plaintiff strategies that can help beat a defendant’s motion to decertify a Fair Labor Standards Act collective action and convince the judge that a case should be tried on a groupwide basis, highlighting key issues such as representative proof and varying circuit frameworks.

• How A New Law Will Affect Ohio Overtime Class Actions

  

  Ohio’s recently enacted S.B. 47 — which exempts employers from paying overtime to their employees under certain circumstances and converts state wage and hour class actions to the Fair Labor Standards Act opt-in collective — signals substantive changes for Ohio-based employers and employees, say Adam Primm and Thomas Jackson at Benesch.

• Don't Be Late Paying Terminated Employees in Massachusetts

  

  By imposing strict liability for an incorrect wage payment to a terminated employee, the Massachusetts high court’s recent decision in Reuter v. Methuen upends a long-standing precedent and means employers will lose a commonly used safety net, say attorneys at Day Pitney.

• DOL's New Retaliation Focus Requires Employer Vigilance

  

  In light of the U.S. Department of Labor’s recently issued bulletin signaling a wide-sweeping approach and enforcement posture to even subtle forms of retaliation, employers must ensure they have a solid framework for fair treatment, prompt investigation and appropriate resolution of employee complaints, says Mark Tabakman at Fox Rothschild.

• To Close Pay Gaps, Laws Must Shift Burden To Employers

  

  To address the scourge of gender- and race-based pay gaps, legislators should follow the recent lead of several jurisdictions by requiring companies to advertise salary ranges with job postings and prohibiting reliance on past pay, reversing the information asymmetry that gives employers more bargaining power, say Christine Webber and Rebecca Ojserkis at Cohen Milstein.

• Bankruptcy Rulings Highlight Split On Excusable Neglect

  

  The Fifth Circuit's recent decision in CJ Holding, and a New York federal bankruptcy court's recent decision in Westinghouse, contribute to a growing split on the weight assigned to various factors when courts decide what may constitute excusable neglect in bankruptcy filing, say attorneys at Cullen Dykman.

• Avoiding Surprise Taxation Of Employment Settlements

  Excerpt from Practical Guidance

  

  Sandra Cohen at Cohen & Buckmann discusses how to avoid unwelcome tax-related payments in connection with settling an employment claim, as the extra cost can significantly decrease the perceived value of an offer and push the parties further apart.