Depositing Funds to Moot Wage and Hour Claims

Douglas, Jeff - 300dpi
Jeffrey Douglas

While wage and hour class and collective actions continue to prove costly for employers, defense counsel have tinkered with different creative methods to attempt to preemptively moot an individual plaintiff’s claims prior to the conditional certification of a collective or class action.  Although courts are currently split on the viability of such tactics, the Second Circuit Court of Appeals (“Second Circuit”) has left the door open for defendants to attempt a preemptive strike. Continue reading

More Green is Coming to Workers in Two Red States

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Angela Cummings

As everyone knows, an historic midterm election occurred this week. Early projections from The New York Times estimate that more than 114 million ballots were case this year, which presents an increase of almost 30 million votes from the 2014 midterms. The big take-aways include the Democrats retaking control of the House and the Republicans retaining their majority in the Senate. Also, a record number of female candidates (more than 250) and people of color (almost 200) ran for office in this election, with many of these candidates throwing their hats in the ring for the very first time. Not surprisingly, health care, immigration and the economy were at the top of the list for voters during exit poll interviews. Continue reading

No Double Recovery Under State and Federal Wage and Hour Law in New York

Shooman, Jeff - 300dpi
Jeff Shooman

Executive Summary: In New York, with its robust state New York Labor Law (“NYLL”), one can receive liquidated damages on top of compensatory damages greater than liquidated damages under the Fair Labor Standards Act (“FLSA”).  The U.S. Court of Appeals for the Second Circuit has determined, however, that one cannot receive a double recovery under the NYLL and FLSA for liquidated damages.  That principle was reaffirmed in early October.    Continue reading

Proposed Class Settlement Shows Potential Cost of Failure to Reimburse for Work-Related Personal Vehicle Use in California

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Tim Reed

California law mandates that employers reimburse employees for work-related expenses.  Under section 2802 of the California Labor Code, “[an] employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.”  Cal. Lab. Code § 2802(a).  Among the items that may require reimbursement in California are office supplies, uniform costs, travel expenses, and mandatory training.  In addition, an employer must reimburse its employee for a reasonable percentage of the employee’s cell phone bill where personal cell phone use is required as part of the employee’s job duties.  Employers are also required to reimburse employees for costs associated with use of a personal vehicle for work-related purpose.  The duty to reimburse for business expenses arises where an employer “know[s] or ha[s] reason to know that the employee has incurred an expense.”  Stuart v. Radioshack Corp., 641 F. Supp. 2d 901, 904 (N.D. Cal. 2009).   Continue reading

An Employer’s Duty to Preserve Documents Beyond the FLSA’s Record Keeping Requirements

Benton, Lori - 300dpi
Lori Benton

Executive Summary:  The Fair Labor Standards Act (“FLSA”) requires a covered employer to maintain and preserve certain records for different classifications of employees. See 29 CFR § 516. Many states have similar record keeping requirements. Notwithstanding these statutory record keeping requirements, an employer in compliance can still be subject to sanctions for failure to preserve documents relevant to an employee’s wage and hour claim.   Continue reading

Settlement Talk Over Sushi: The Second Circuit Set to Decide Key FLSA Settlement Issue

Ryan, Patrick - 300dpi
Pat Ryan

Executive Summary:    Earlier this week, the Second Circuit Court of Appeals heard oral arguments regarding whether judicial review of a Fair Labor Standards Act (“FLSA”) settlement is required before entry of an offer of judgment pursuant to Rule 68 of the Federal Rules of Civil Procedure (“FRCP”).  While there is longstanding history mandating court approval of FLSA settlements, the majority of district courts in the Second Circuit—unlike most other Circuits—have allowed Rule 68 settlements absent judicial approval.  As such, employers in this Circuit have increasingly tried to use Rule 68 to avoid judicial scrutiny of settlement agreements.  After hearing oral arguments in Yu v. Hasaki Restaurant, Inc., 319 F.R.D. 111 (S.D.N.Y. 2017) this week, the Second Circuit appears primed to weigh in on this unsettled and controversial issue—which will determine whether judicial review or a system resembling private party contracting will govern in the Second Circuit.  Continue reading

New Illinois Laws Require Employers to Reevaluate Policies and Practices

Wage Hour - social, smallBreaks for Expressing Breastmilk Must Be Paid

Effective August 21, 2018, Illinois amended its Nursing Mothers in the Workplace Act (820 ILCS 260/10). The prior law, which went into effect in 2001, required employers who have more than five employees to provide unpaid break time to an employee who needed to express breast milk for her nursing infant child. The amendment now requires employers to pay for “reasonable” break time spent expressing breast milk, no matter how long it takes or how often it needs to occur. A limit of up to one year after the birth has now replaced a previously undefined period.  Continue reading