Does a plaintiff’s allegation that he was about to join a pending Fair Labor Standards Act (FLSA) collective (class) action against his former employer, combined with the employer’s knowledge that he was a potential class member, sufficiently constitute being “about to testify” in an FLSA proceeding, such that the former employer’s actions in prohibiting the
Jeffrey W. Brecher
Has Lynn’s Food Grown Stale? Courts Increasingly Question Obligation to Review FLSA Settlements
For 40 years, the majority of federal courts have followed the holding of Lynn’s Food Stores, Inc. v. U.S., 679 F.2d 1350 (11th Cir. 1982), that FLSA claims may be settled only through approval by the U.S. Department of Labor (DOL) or through a lawsuit filed by the individual, in which a court of…
Supreme Court to Review Fifth Circuit’s Oil Rig “Day Rate” Case
Posted in Case Law Update, Fair Labor Standards Act
In April 2020, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit held that paying an employee a set amount for each day that he works (i.e., on a “day rate” basis) does not satisfy the “salary basis” component required to qualify as overtime-exempt under the Fair Labor Standards Act (FLSA),
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2020 Wage & Hour Developments: A Year in Review
The laws governing wages and hours of work affect nearly everyone—and have a significant affect on class and collective actions. How employees are paid, whether as hourly non-exempt, salaried-exempt, tipped, or commissioned sales workers, and how much they are paid, are questions of deep interest to employees and employers alike. And because the laws regulating…
Workplace Law Under a Biden Administration
Posted in Generally, Uncategorized
As President-elect Joe Biden selects members of his Cabinet and prepares for his transition into the presidency, he and a Democratic majority in the House of Representatives may pursue a number of significant pieces of federal workplace legislation. Many of these employment law measures successfully passed the House in 2019 and 2020. And, with the…
Department of Labor Nullifies “80/20” Tip Credit Rule
Posted in Collective Actions, Tip Credit
The Wage and Hour Division of the Department of Labor (“DOL”) today rescinded Obama-era enforcement guidance that had made the tip credit unavailable to tipped employees who spend more than 20% of their time performing allegedly non-tip generating duties. The so-called “80/20” Rule has spawned a number of lawsuits, many of them collective actions, claiming…
Restaurant Industry Association Files Suit Challenging “80/20” Rule
Posted in Tip Credit
The Restaurant Law Center, a public policy affiliate of the National Restaurant Association, has filed suit against the Department of Labor and its Wage and Hour Division, seeking to declare unlawful the DOL’s 2012 revision to its Field Operations Handbook, purporting to establish, through sub-regulatory guidance, the “80/20” tip credit rule or “20% Rule.” Restaurant…
Supreme Court Weighs in on Class Action “Pick Off”, but Leaves Significant Questions Unanswered
By Jeffrey W. Brecher on
Posted in Uncategorized
Yesterday, the U.S. Supreme Court eliminated a strategy defendants have used to stem the rising tide of class action lawsuits—offering the named plaintiffs in a class action lawsuit full relief, mooting their individual claim (regardless if they accept it), and along with it, rendering the class action moot. Campbell-Ewald Co. v. Gomez.
These offers…