Articles Posted in Fair Labor Standards Act (FLSA)

Nearly three years after the launch of “Fight for 15”, a campaign aimed at boosting the minimum wage to $15 per hour, workers are enjoying some sweet success. The effort involves urging fast food workers in numerous cities around the country to take part in strikes and protests. In large cities like New York and San Francisco, the turnouts have been so huge that city and state officials are taking notice and changing public policy. For instance, Pittsburgh’s mayor, Bill Peduto, said city employees will receive at least $15 per hour by 2021, and the office of New York’s Governor Andrew Cuomo announced state workers will make a minimum of $15 per hour by 2018.

The “Fight for 15” campaign describes workers who receive less than $15 per hour as “a voting bloc that can no longer be ignored.” Leading candidates for the Democratic Party’s presidential nomination are definitely paying attention. Both Hilary Clinton and Bernie Sanders have addressed strikers directly and offered encouragement.

The Service Employees International Union, a 2-million-member labor union, funds the campaign, but its successes haven’t led to an increase in due-paying members who could sustain the cause’s support. Therefore, without an ongoing source of funds, the campaign can’t continue indefinitely. However, at least in the meantime, “Fight for 15” wields powerful political muscle and plans to expand its efforts.

After a court ordered Tyson Foods to pay $5.8 million to workers in overtime pay in a class action suit, the food giant appealed to the U.S. Supreme Court to overturn the ruling. Based on a recent hour-long argument session, say experienced court-watchers, the justices don’t appear to be receptive to Tyson’s claims that the lower court used an illegal method to determine damages. The company says the method in question, known as statistical averages, implies that all member of the group of 3,300 workers are identical to average employees.

Tyson contends the statistical average method mirrors the “trial by formula” reasoning that formed the basis of the high court’s rejection of an earlier major class action case. In that lawsuit, workers sued Walmart for denying them equal pay and promotion opportunities. The rejection of the case stemmed from the fact that the unfair treatment affected some workers more than others. In other words, their employment injuries weren’t uniform. While Tyson hopes the precedent this ruling set will lead to a Supreme Court victory, the justices appeared skeptical of the argument.

Both business advocates and consumer advocates are closely watching this case and awaiting the ruling. Those on the business side desire a Tyson victory, as it will put the brakes on what they feel are frivolous class action lawsuits. Conversely, consumer and worker advocates want a Tyson defeat, because they contend group claims hold companies accountable.

Businesses must comply with laws designed to keep minors safe and protect them from unfair working conditions. A Massachusetts court recently fined a coffee shop chain $47,000 for violating child labor, wage and hour laws. The ruling, which includes $15,000 in restitution and $32,000 in penalties, shows how the legal system can come to the aid of underage employees who suffer mistreatment.

“Our child labor laws are designed to protect minors by limiting the hours and times they can work. We want to make sure that this business provides its staff with better working conditions and does not interfere with the earnings that they depend on,” said Massachusetts Attorney General Maura Healey.

Alleged labor law violations against the shops and their owners in Leominster and Littleton, MA included the following:

The Court of Appeals for the D.C. Circuit redefined Fair Labor Standards Act exemptions for home healthcare workers, narrowing exempt workers to those who directly work for the individual or for the family as opposed to a third party, such as a home care or temporary agency.

This decision carries several major implications for workers, direct employers and home care or temporary agencies. These include:

1.    Home care or temporary agencies should review their practices as soon as possible to ensure that they are following the new laws.

The Court of Appeals for the D.C. Circuit has sent a clear message to the employers of home-healthcare workers and redefined exempt employees as only those who are directly hired by the person or the person’s family and not an outside agency.

This ruling updated the Fair Labor Standards Act (FLSA) definition that groups all companionship or domestic service workers together without differentiating between them. It means that even live-in caretakers will receive overtime pay if they work more than 40 hours per week. The outside agency must pay their employees at least minimum wage plus overtime.

The Court considered a 2007 U.S. Supreme Court decision, Long Island Care at Home, Ltd. v. Coke, that gave the Department of Labor the authority to interpret the companionship exemption when it implemented those standards. The DOL held that third-party workers were exempt, but Coke, a companionship worker, challenged that exemption and asked for minimum wage and overtime. Although the DOL upheld the exemption, the case set precedent in determining how the definition was applied. Thus, the Supreme Court agreed that the DOL had the authority to decide which workers were included and who was exempt in accordance with FLSA laws.

The National Labor Relation’s Board decision regarding joint-employer status for workers formerly not classified as employees in the case of Browning-Ferris Industries of California, Inc. includes numerous implications for employment law. Here are 7 potentially important ones:

1.    The Wage and Hour Division, and by extension, the FLSA, will likely look to this decision to expand who they charge in related employment violations.

2.    In the past, many employers have tried to distance themselves from workers, thus avoiding an employer-employee relationship and limiting overhead by hiring employees through a secondary agency. This ruling will curtail those behaviors.

By a vote of 3-2, the National Labor Relations Board revised how it will decide joint-employer status, a move that will affect nearly three million temporary workers across the nation. The Board determined that the prior standard fell short of keeping up with workplace and financial needs, and the new standard represents the existing market more accurately.

The new definition for joint-employers includes the following:

1.    Both parties meet the criteria for employers according to common law, and /or

When most people read in the news about restaurants and other businesses violating New York Labor Law (NYLL) and the Fair Labor Standards Act (FLSA), they get upset and shake their heads. But there’s a lot of bad news out there, and people’s attention spans are spent. So most people don’t dwell on such stories and develop a visceral understanding of how minor but chronic wage theft degrades the lives of employees.

To that end, let’s humanize this issue. Imagine you’re a waitress who just moved to New York City from Ohio to make it on Broadway. You take a job at a nice restaurant as a day job to pay the bills while you pursue your passion. At the eatery, you earn $15 an hour, after tips, and land 20 hours a week’s worth of work. That means you bring home $300 a week or $1,200 a month from this part time work. (Fortunately, you also have savings to supplement, so you can afford to scrape by in our admittedly pricey city.)

Now let’s say your employer does something shady: he shares your tips illegally and also doesn’t pay overtime when you work overtime. In the grand scheme of things, this “nickel and diming” might not seem so terrible. Let’s say it knocks down your average hourly wage down to $18 an hour. A difference of “just” $2 an hour from what you should get paid.

Nonprofit organizations are allowed to use unpaid volunteers, as long as the volunteers’ work is part of the nonprofit activities of the organization. If, however, a nonprofit organization also runs a commercial business, the Fair Labor Standards Act (FLSA) requires that those working in that business be classified as employees and be paid minimum wage and overtime.

An Ohio televangelist allegedly ran afoul of that rule when he used unpaid volunteers in a for-profit buffet restaurant that his church operates. Now the Department of Labor (DOL) has filed a wage-and-hour lawsuit against the church and its leader.

The lawsuit also accuses the televangelist of a slate of other bad actions:

In our last post, we discussed a Federal Judicial Center (FJC) analysis that’s found a dramatic rise in the number of wage-and-hour cases filed throughout the U.S. over recent years.

Drilling down to a more local level, a parallel trend in FLSA actions has occurred here in New York State:

•    In fiscal year 2009, plaintiffs filed 652 wage-violation cases in New York State alone.

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