Does a Privileged Wage and Hour Audit Always Have to Be Turned Over in FLSA Litigation? The Fifth Circuit Says No, and Offers Employers a Roadmap for Keeping Privileged Analysis Out of Litigation

Does merely defending against a wage and hour lawsuit mean that the company must turn over privileged attorney-client analysis to plaintiffs’ counsel? For several years, employers have struggled with this question in part because several lower-court decisions have been interpreted to hold that asserting that the company made a good-faith, reasonable attempt to comply with …read more »

Employers May Now Offer Bonuses and Other Supplemental Pay Under the Fluctuating Workweek Method of Calculating Overtime Pay

Employers are required by the Fair Labor Standards Act (“FLSA”) to pay overtime for hours worked over forty (40) in a single week to non-exempt employees based on the employee’s “regular rate.” This general principle has led to both complicated and nuanced questions in application when non-exempt employees are paid on other than an hourly …read more »

Before Implementing a Layoff, Consider an Unemployment Workshare Program

As employers begin to plan for their employees’ return to work, many are unable to maintain the size of their workforces in light of the ongoing economic downturn. As they plan for layoffs or long-term furloughs, employers should also be aware of the possibility of an unemployment workshare program. The main difference between a layoff …read more »

Carefully Plan Your Wage and Hour Audits

It is often recommended that employers periodically conduct wage and hour compliance audits to ensure that pay practices accord with the strict requirements of the law. The benefits of conducting such audits are that employers can eliminate liability moving forward for any errors they identify and correct, and such audits tend to show good faith …read more »

DOL Proposes Clarifications to the Fluctuating Workweek (or “Half-Time”) Method of Calculating Overtime for Salaried, Non-Exempt Workers

On November 5, 2019, the United States Department of Labor (“DOL”) announced a proposed rule that would give employers more flexibility in the way they calculate overtime pay for salaried, non-exempt employees with inconsistent schedules.  More specifically, the rule would expressly allow employers to offer bonuses or other incentive-based pay to salaried, non-exempt employees whose …read more »

Forthcoming Changes to Clarify What Is and Is Not Included in the FLSA Regular Rate

In March of this year, the United States Department of Labor (“DOL”) issued the first proposed rule within half a century that would amend the way overtime is calculated under the Fair Labor Standards Act (“FLSA”). Facially simple but devious in the details, nearly every employer is familiar with the FLSA’s “regular rate” used to …read more »

The Four Most Common Errors When Tracking Employee Work Time and What to Do About Them

Many of the rules of the Fair Labor Standards Act and similar state laws regarding the payment of non-exempt employees are notoriously complex and are often misapplied.  Even seemingly minor errors can become costly if they apply to groups of non-exempt employees and become the subject of a Department of Labor investigation or class action …read more »

Businesses Should Update Indemnity Agreements to Protect Against Contractor Lawsuits

In the past decade, many businesses have significantly improved compliance under the Fair Labor Standards Act (“FLSA”) and other employment laws when it comes to their own employees. At the same time, many workers who provide skilled services to those businesses now do so as independent contractors, often based on service agreements between businesses and …read more »

Can the FLSA’s White-Collar Exemptions Apply to Employees Paid on a Daily, Hourly, or Shift Basis?

To qualify for the “white collar” exemptions under the FLSA, an employee must be paid on a “salary basis” and meet a job duties test.  To meet the salary basis test, the majority of exempt employees are paid a guaranteed weekly salary that does not vary depending on the number of hours they work.  However, …read more »

Department of Labor Clarifies the Compensability of Travel Time

Determining the circumstances in which “travel time” must be paid to non-exempt employees is often a vexing issue when employees work at customer locations rather than a fixed worksite.  A recent Department of Labor Wage and Hour Division opinion letter sheds light on some of the difficult questions that arise with respect to such employees.  …read more »