• Save
Wage and Hour Disputes and Class Action Claims
Upcoming SlideShare
Loading in...5

Wage and Hour Disputes and Class Action Claims






Total Views
Views on SlideShare
Embed Views



3 Embeds 150

http://www.parsonsbehle.com 146
http://www.slideee.com 3
http://accessibility_checker.siteimprove.com 1



Upload Details

Uploaded via as Microsoft PowerPoint

Usage Rights

© All Rights Reserved

Report content

Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

  • Full Name Full Name Comment goes here.
    Are you sure you want to
    Your message goes here
Post Comment
Edit your comment

Wage and Hour Disputes and Class Action Claims Wage and Hour Disputes and Class Action Claims Presentation Transcript

  • WAGE AND HOUR DISPUTES AND CLASS ACTION CLAIMS W. Mark Gavre Tuesday, May 6, 2014 The Little America Hotel 26th ANNUAL EMPLOYMENT LAW SEMINAR parsonsbehle.com4813-8465-0266
  • 2  Unpaid overtime, unrecorded worktime, minimum wage, meal break time  DOL: Two years back pay for everyone affected  Private lawsuit: Three years back pay, amount automatically doubled, plus attorney fees and litigation costs  Class actions where common facts predominate Wage & Hour Claims Are Dangerous!
  • 3  Incorrectly classifying non-exempt as exempt  Incorrectly classifying employees as independent contractors or consultants  Off-the-clock work  Deducting for meal breaks improperly  Not recording hours worked  Not paying minimum wage—see state law  Retaliation against complainers Areas of Risk
  • 4  Multiple employees and former employees in one lawsuit—small amounts become big  Strict employer liability—no knowledge or bad intent needed for a violation  No defense to a violation—strict liability  Personal liability possible  Lawyers’ fees, expert fees and litigation costs recoverable  State laws can be more generous Costly Class Actions
  • 5  Examples of recent 2014 settlements attached  Recent wage & hour DOL victories attached Class Actions
  • 6  Utah labor Commission agreement with DOL—attached  DOL seeking $800,000+ in Utah -attached DOL Activity in Utah
  • 7  Federal minimum wage: $7.25  21 States now have higher minimum wages—and are going higher – CA $8.00 now; $10.00 in 2016 (OT after 8 hours) – San Francisco $10.74 now – LA considering $15.37  WA $9.32; $15.00 likely in stages • Seattle airport $15.00 now Minimum Wage
  • 8 – CT $8.70 now; $10.10 by 2017 – OR $9.10 – VT $8.73 – CO $8.00 – MT $7.90 – Santa Fe, NM $10.66  2014 new increases in minimum wage – HI $10.10 by 2018 (in steps) – MD $10.10 by 2018 Minimum Wage (cont.)
  • 9 – MN $9.50 by 2016; indexed to inflation in 2018 – DE $8.25 by 2015 – W. Va. $8.75 by 2016 – Washington, D.C.: $8.25 now; $11.50 in 2016 and indexed to inflation Minimum Wage (cont.)
  • 10  $7.25 with health benefits  $8.25 without health benefits (“living wage”)  Overtime after 8 hours if paid less than $10.875 with health benefits  Overtime after 8 hours if paid less than $12.375 without health benefits  Overtime after 40 hours if paid more Nevada Minimum Wage and OT
  • 11  2/12/14 Pres. Obama issued executive order raising minimum wage for contractors and subcontractors on federal projects to $10.10  Effective 1/1/15; applies to new or renewed contracts  Starting 1/1/16 to be raised annually to reflect inflation New Minimum Wage for Federal Government contractors
  • 12  3/13/14 Pres. Obama directed DOL to consider revisions to FLSA regulations to give more employees OT benefits  FLSA substance in the regs, not statute, and can be changed by DOL (1949, 2004)  Most exemptions from OT require only $455 weekly salary or $23,600 annually  Raise to $700, $1,000 or more?  Other changes possible Planned Revisions to FLSA Exemptions from Overtime
  • 13  Since 2008 upsurge in college students working as unpaid interns to get experience and job opportunities  Class action lawsuits for interns as employees entitled to minimum wage and overtime Unpaid Interns
  • 14  Intern experience should be educational, similar to college training  Internship for benefit of intern  Intern cannot displace regular employee  No immediate advantage to employer  Intern not entitled to job subsequently  Both intern and employer agree in advance that it is unpaid position DOL Unpaid Intern Requirements
  • 15  If worker is incorrectly classified as a consultant or independent contractor: – Employer liable for required withholdings for state and federal income tax, Social Security, Medicare, unemployment insurance— retroactive – Matching FICA contributions to be made – Unpaid minimum wage and OT risks – May lose “exclusive remedy” protection of workers compensation law Independent Contractor Risks
  • 16  Does employer have the right to control how the work is performed?  Does employer merely contract for the result, but leaves the “how” up to the consultant?  Is the consultant in business for herself? – Have a business license? – Business card or website? – Potential for profit or loss? Employee vs. Independent Contractor
  • 17 – Free to do same work for others? – Full-time or part-time work? – Long-term working relationship? – Use her own equipment or tools? Independent contractor? (cont.)
  • 18  Administrative and executive exemptions  Must be paid a “salary,” not a wage: – fixed amount per month, etc. regardless of quality or quantity of work performed  Case-by-case analysis based on actual work performed, not job description  Must be office, non-manual work directly related to management or general business operations White Collar Exemptions From Overtime
  • 19  Primary duty requires exercise of: – Discretion and independent judgment – On matters of significance: • Compares and evaluates possible courses of action and makes/recommends decision after possibilities considered • Authority to formulate/implement policies free from immediate supervision • Can commit employer in significant matters • Can deviate from regular policies or procedures • More than use of skill in applying standards White Collar Exemptions (cont.)
  • 20  Employer must provide “a reasonable break” for nursing mothers to express breast milk as needed  Applies only to non-exempt employees  Covers first year after birth of child  A space, other than bathroom, shielded from view and free from intrusion  Employers with less than 50 employees exempt if imposes “undue hardship” Break Time for Nursing Mothers
  • 21 Thank You  W. Mark Gavre direct: 801.536.6834 email: mgavre@parsonsbehle.com