Fair Labor Standards Act Law

New Year Resolutions for North Carolina Staffing Firms (A Legal Perspective)

2013-01-14T15:20:00.000-05:00

Like most of us, recruiting and staffing firms prioritize their New Year resolutions to ensure a prosperous and successful year. Here are a couple of legal compliance issues to keep in mind when considering your “resolutions” as you kick-off the New Year:

E-Verify

As you are aware by now, North Carolina law requires some private employers to use the federal E-Verify program to verify the work authorization of all new hires. As of January 1, 2013, private businesses with more than 100 employees are required to enroll in the Internet-based E-Verify system.

The E-Verify program is operated by the Department of Homeland Security in partnership with the Social Security Administration. It verifies a new hire’s work eligibility by comparing the employee’s I9 Form information with the Social Security Administration’s database. It is free, and it has been designed to be user-friendly for employers.

The final phase of the NC E-Verify law goes into effect on July 1, 2013 and requires private business with more than 25 employees to enroll in the E-Verify system. North Carolina businesses should be aware of the E-Verify requirements including recordkeeping requirements for storing and retaining E-Verify results and the I9 Form.

Fair Credit Reporting Act (FCRA)

Beginning January 1, 2013, businesses, including staffing firms, must begin using new FCRA forms to notify applicants and employees of their legal rights. FCRA sets forth the procedural requirements that employers must adhere to when conducting background checks through Consumer Reporting Agencies. A Consumer Reporting Agency (“CRA”) is any third party that handles your background checks for new hires.

While there are no substantive changes to the FCRA forms (which consist of the consent form for obtaining a background check, preadverse decision notification, and adverse action notification), the forms must be updated to reflect that the Consumer Financial Protection Bureau has taken over enforcement of FCRA (which was previously handled by the Federal Trade Commission).

Conclusion

While a legal forecast for 2013 cannot be fully addressed in this article, we will touch upon some of the 2013 legal trends facing employers at the NCASP Annual Spring Conference (April 25-27, 2013).

The new E-Verify and FCRA requirements went into effect on January 1, 2013. Accordingly, all North Carolina employers should be prepared to comply with these changes immediately.

This article first appeared in the Jan./Feb 2013 issue of Staffing Now, the North Carolina Association of Staffing Professionals (NCASP) Ezine.

Wage and Hour Claims: Is the Staffing Industry a Target for the Department of Labor and Plaintiffs’ Counsel?

2012-11-26T15:03:00.000-05:00

This article first appeared in the November/December 2012 issue of Staffing Now, the North Carolina Association of Staffing Professionals (NCASP) Ezine.

The number of wage and hour lawsuits filed in the United States is dramatically increasing, with thousands of federal wage and hour claims brought against employers so far this year. The increase is due in large part to the weak economy and high unemployment rate. These lawsuits arise primarily out of the Fair Labor Standards Act (the “FLSA”) which is the federal law governing minimum wage, overtime pay, recordkeeping requirements, child labor standards, and equal pay in employment. Wage and hour claims can also arise under state law, and, recently, we have seen a “hybrid” of cases consisting of both federal and state law claims. Not surprisingly, the staffing industry has been impacted by this rapid rise in wage and hour claims.

Continue reading...

Jill Benson to Speak on EEOC Enforcement Guidance

2012-08-28T12:20:00.002-04:00

RALEIGH, N.C.—Womble Carlyle Labor & Employment attorney Jill Benson will speak to the Triangle Technical Recruiters Association on Oct. 11th. Benson will speak on “EEOC Enforcement Guidance: Consideration of Criminal History under Title VII of the Civil Rights Act.”

The luncheon event takes place at the North Carolina State University Club in Raleigh.

Jill Benson is an experienced labor and employment litigator who represents employers in a wide range of labor and employment issues, including: Wage and hour claims (Fair Labor Standards Act and state wage and hour laws); Leave of absence issues, including Family Medical Leave Act, military leave and paid time off concern; Anti-discrimination disputes, including those involving Americans with Disabilities Act claims, as well as claims involving alleged discrimination on the basis of race, gender, religion or age; Trade secrets and employee non-compete cases; and Whistleblower retaliation claims. She practices in Womble Carlyle’s Greensboro, N.C. office.

Jill Benson to Speak on Family and Medical Leave Act

2012-06-18T10:59:00.003-04:00

Womble Carlyle attorney Jill Benson will speak on “Family and Medical Leave Act—What You Should Know” to members of the Legal Support Staff of Greensboro.

Benson’s discussion takes place from noon-1 p.m. on Tuesday, July 31st at Womble Carlyle’s Greensboro Office, 300 N. Greene Street, Suite 1900, in Greensboro.

For more information, contact Kristen Saunders at ksaunders@wcsr.com or (336) 574-8048.

Incorporating GINA’s Safe Harbor Language into Employment Policies

2012-05-08T16:56:00.001-04:00

This article first appeared in the May/June 2012 issue of Staffing Now, the North Carolina Association of Staffing Professionals (NCASP) Ezine. Authored by Womble Carlyle's Jill Benson.

The Genetic Information Nondiscrimination Act of 2008 ("GINA") makes it illegal for employers (that employ 15 or more employees) to discriminate against applicants or employees because of their "genetic information." Under GINA, employers are prohibited from requesting genetic information from applicants or employees and cannot use genetic information in making employment decisions. The Equal Employment Opportunity Commission is responsible for enforcing GINA’s anti-discrimination provisions.

More American Workers Sue Employers for Overtime Pay

2012-04-16T12:57:00.002-04:00

From USA Today: Americans were pushed to their limit in the recession and its aftermath as they worked longer hours, often for the same or less pay, after businesses laid off almost 9 million employees.

Now, many are striking back in court. Since the height of the recession in 2008, more workers across the nation have been suing employers under federal and state wage-and-hour laws. The number of lawsuits filed last year was up 32% vs. 2008, an increase that some experts partly attribute to a post-downturn austerity that pervaded the American workplace and artificially inflated U.S. productivity.

US Labor Department Sues Bluefield, W.Va., Accounting Firm and President To Recover Back Wages

2012-04-06T13:35:00.002-04:00

The U.S. Department of Labor has filed a lawsuit against Bluefield accounting firm Raymond A. Froy Jr. CPA, PC and its president, Raymond A. Froy Jr., for alleged violations of the federal Fair Labor Standards Act that affected five employees. The suit followed an investigation by the department’s Wage and Hour Division that found the defendants had violated the FLSA’s minimum wage, overtime and record-keeping requirements.

FLSA Headlines

2012-03-30T13:53:00.003-04:00

CarMax Faces Unpaid Overtime Class Action (Lawyers and Settlements)

Wage and Hour Litigation is Big—and Getting Bigger (Corporate Counsel)

Fourth Circuit finds duty to defend Fair Labor Standards Act case (Lexology)

Minimum Wage Proposal For Servers Opposed By Restaurant Owners (Courant.com)

Jill Benson to Discuss Employment Law Changes with NCASP Members

2012-02-23T13:48:00.002-05:00

Womble Carlyle attorney Jill Benson will be a speaker at the 2012 North Carolina Association of Staffing Professionals (NCASP) Annual Training Conference, to be held May 17-19 in Wrightsville Beach, N.C.

Benson has been a regular speaker at the NCASP Annual Training Conference in recent years, speaking on a variety of employment law compliance topics. This year, she will discuss recent changes in employment law that will affect NCASP members. Benson’s presentation takes place Saturday, May 19th.

Womble Carlyle is a Bronze Sponsor of the event.

Career GPS for In-House Counsel

2012-02-14T16:38:00.000-05:00

Womble Carlyle Chief Leadership and Executive Development Officer Vandana Allman will participate in a discussion of “Career GPS for In-House Counsel” with members of the Washington Metropolitan Area Corporate Counsel Association (WMACCA). The luncheon takes place from noon-2 p.m. on Feb. 29th at the Tysons Corner Marriott, 8028 Leesburg Pike in Tysons Corner, Virginia. The “Career GPS For In-House Counsel” presentation will provide a guidance system for in-house counsel who want to design and implement professional-growth routes that will help them reach their destination as quickly and efficiently as possible.

WMACCA’s Career GPS for In-House Counsel is 12-2 p.m. Feb. 29 at Tysons Corner Marriott http://bit.ly/yzHfMJ. Register today.

Federal Courts Increasingly Unhappy with Proposed FLSA Settlements

2012-02-06T11:54:00.004-05:00

Federal courts are increasingly unhappy with proposed settlements of FLSA collective actions in which attorneys’ fees are disproportionate to the back pay for plaintiffs and “class” members, as the attached decision out of the Southern District of Florida demonstrates. Such cases are not conducive to percentage contingent fee arrangements in any event, but where, as here, the suggested fee was three times the aggregate back pay, Judge Donald Graham threw a flag and ordered a replay.

Southern District of Florida Settlement (pdf)

When “letting off steam” becomes protected activity under the FLSA

2012-01-27T16:23:00.003-05:00

The Fourth Circuit Court of Appeals today held that an employee who complains to her employer about alleged violations of the Fair Labor Standards Act is protected from retaliatory action from the employer. In Minor v. Bostwick Laboratories, Inc., 10-1258, the court joined the majority of circuit courts of appeals in giving a broad interpretation to the anti-retaliation provisions of 29 U.S.C. § 215(a)(3). Although prior Fourth Circuit authority appeared to require an employee to file a formal complaint with the Department of Labor or the court, today’s opinion makes clear that an employee’s intracompany complaint to management will be sufficient to warrant protection. Ms. Minor had complained to a senior executive that she believed her supervisor was altering time cards to eliminate overtime. The executive responded that he would look into it. A few days later, the company terminated Ms. Minor allegedly for being disruptive in the workplace. She sued claiming illegal retaliation.

The court recognized that employees simply letting off steam will not be sufficient to invoke the protection of the FLSA. The employee’s report to the employer must be “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an
assertion of rights protected by the statute and a call for their protection." The court did not decide if the facts of the case supported a verdict. It simply decided that Ms. Minor had alleged enough facts to pursue the claim.

Employers need to be careful in how they respond to employee complaints regarding wage and hour issues.

By David Yandle

Mr. Yandle represents employers in all facets of employment law, including Title VII, ADA, ADEA, FLSA and FMLA.

Revenge of Dukes - Another One Bites the Dust

2012-01-13T12:45:00.001-05:00

Relying on Wal-Mart v. Dukes, the US District Court for the Central District of California in Aburto v. Verizon California, Inc. has found no “commonality” in Rule 23 class claims brought by a Verizon “First Level Manager” in its fiber-optic cable workgroup. Since the claims were raised under California law and not under the FLSA, the “relatively lenient” collective action certification rubric did not apply, so traditional Rule 23 class principles were in play. Plaintiff failed to satisfy the court that common, class-wide questions of law and fact predominated; instead, individual assessments would need to be made, thus dooming the class action. Expect an appeal.

Click here to read the full opinion.

Horton Hears a WHAT?

2012-01-13T10:41:00.001-05:00

Can the National Labor Relations Board reverse the Supreme Court? These days, nothing seems impossible, but the attached NLRB order, D. R. Horton, Inc., is remarkable both for its disregard of the decision last April in AT&T v. Concepcion, ___ U.S. ___, 131 S.Ct. 1740, which approved the signing of class action waivers in consumer contracts requiring arbitration, and for its delving into the province of the Department of Labor. At issue was an employer-required “mutual arbitration agreement,” challenged by a construction superintendent. The problem came to a head when the superintendent’s attorney informed the employer that he had been retained to represent a class of superintendents who claimed they had been misclassified as exempt executives. When the employer replied that there had been no notice of intent to arbitrate, the superintendent filed an unfair labor practice charge.

Click here to read the full opinion.

Obama Moves To Extend Wage Protections To Home Care

2011-12-21T14:19:00.001-05:00

The Obama administration revealed a proposal Thursday to extend minimum wage and overtime protections to nearly 2 million in-home care providers by revising federal rules on the exemption for companion workers.

After several legislative proposals to expand coverage languished in Congress, the White House opted to narrow the exemption by having the U.S. Department of Labor update its rules on what duties a companion could have under the Fair Labor Standards Act.

Click here to read more from Law360.com...

The Fluctuating Workweek and Commission Pay

2011-12-16T15:46:00.005-05:00

We’ve noticed some cases recently filed challenging employers’ use of the fluctuating workweek method to determine the overtime compensation for employees who receive commission payments. Plaintiffs are alleging that this practice is not permitted by the Fair Labor Standards Act (FLSA) when employees earn commissions in addition to their salaries. However, this issue is unresolved, and precedent seems to favor the employer defendants.

The fluctuating workweek method is permitted by FLSA regulation 29 C.F.R. § 778.114, promulgated by the Department of Labor to implement the Supreme Court's holding in Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 580 (1942). This method permits employers to pay non-exempt employees pursuant to the fluctuating hours method if five criteria are met:

1. The employee's hours must fluctuate from week to week;

2. The employee must receive a fixed weekly salary that remains the same regardless of the number of hours worked per week;

3. The fixed salary must be sufficient to provide compensation at a regular rate not less than the legal minimum wage;

4. The employee must receive at least 50 percent of his regular hourly pay for all overtime hours worked; and

5. The employer and the employee must have a clear mutual understanding that the fixed salary is compensation (apart from overtime premiums) for the hours worked each workweek.

Dr Pepper Hit With Wage Suit Over OT, Lunch Breaks

2011-11-07T12:30:00.005-05:00

Employees of Dr Pepper Snapple Group Inc. on Friday launched a proposed class action in Florida federal court, claiming the beverage giant unlawfully deducted lunch breaks from pay and withheld overtime compensation.

Lead plaintiff Rony Mitial lodged a suit on behalf of several hundred current and former Dr Pepper Snapple Group employees, claiming the company and its subsidiary American Bottling Co. failed to adequately compensate employees, in violation of the Fair Labor Standards Act.

Ex-Hostess Tackles Colts In FLSA Minimum Wage Suit

2011-10-14T16:36:00.001-04:00

An ex-hostess launched a putative collective action Wednesday accusing the Indianapolis Colts of running afoul of the Fair Labor Standards Act by failing to pay hostesses, who attend to people in the press box area of the Colts' stadium, the federally required minimum wage.

Read the case.

More On Papa John's

2011-10-14T16:32:00.003-04:00

Over the employer’s objections that the practice constituted enabling of solicitation with court approval, Judge Audrey Fleissig allowed use of prepaid return envelopes in connection with notice of the ability to opt in to an FLSA collective action against Papa John’s in the Eastern District of Missouri.

Click to read the order.

See our previous post (10/7/11).

Papa John's Drivers Assail Class Notification Roadblock

2011-10-07T15:57:00.000-04:00

A group of Papa John’s Pizza delivery drivers seeking to expand their class in a wage-and-hour suit asked a federal judge on Wednesday to reconsider a ruling that barred attorneys from using prepaid return envelopes in notifying potential class members of the suit.

Burger King Managers Denied Class Cert. In OT Fight

2011-10-07T15:55:00.001-04:00

A Florida federal judge on Thursday shot down a group of Burger King Corp. franchise managers' bid for class certification in their wage and hour suit claiming the fast-food giant failed to pay them overtime, ruling the plaintiffs' managerial duties were too varied.

DOL Set to Share Employee Misclassification Information with the IRS and States

2011-10-06T15:41:00.002-04:00

In what appears to be another example of cracking down on the improper use of independent contractors, the U.S. Department of Labor (“DOL”) recently announced it is entering into agreements with the IRS, as well as some state agencies (including Illinois state agencies), to share information regarding employers who have improperly classified employees. The DOL maintains that these arrangements are necessary to share information and coordinate law enforcement with the participants to end the practice of misclassifying employees. However, it is clear that this collaboration has as much to do with enhancing the inflow of tax revenues as it does with protecting employees.

What this practically means for businesses is that if the DOL determines that an independent contractor is misclassified, it can share that determination and evidence with, for example, the Illinois Department of Employment Security or other state agencies, which could very well lead to additional investigations, fines, fees and liability upon the business beyond those by IDOL. In light of this, every company with a business model based, in whole or in part, upon the use of independent contractors should prepare itself for this new enforcement activity and immediately consult with an employment attorney to perform an audit of those workers.

Skycaps Can Coordinate Cases Over Airlines' Fees

2011-10-05T15:46:00.002-04:00

A Massachusetts federal judge agreed to allow skycaps in a proposed class action against US Airways Inc. over its bag-checking fee and plaintiffs in a similar suit against United Airlines Inc. to coordinate their cases with a class action against American Airlines Inc., the plaintiffs’ attorney said Wednesday.

Judge Rules Ohio-based Cascom Employees Misclassified as Independent Contractors

2011-10-04T16:18:00.000-04:00

Judge rules Ohio-based Cascom employees misclassified as independent contractors, denied overtime pay in suit brought by US Labor Department.

Maybe Not So Ho Hum at the Supreme Court: FLSA and Wal-Mart v. Dukes

2011-10-04T16:00:00.001-04:00

"The use of Wal-Mart Stores, Inc. v. Dukes in an FLSA case is a key link for those who are advocating for greater control by the courts of FLSA collective actions. Unfortunately, as the 9th Circuit opinion shows, while the case is an FLSA case it is also a Rule 23 case on the state law claims. So, the linkage is not as definitive as one would like."