To Protect and Serve . . . and Make a Living: Court Rules Moonlighting Police Officers Are Employees At Second Jobs

By Kevin Murphy

Last week, the U.S. Court of Appeals for the Sixth Circuit recognized that “the way we work in America is changing. The relationships between companies and their workers are more fluid and varied than in decades past.” Acosta v. Off Duty Police Services, Inc., Nos. 17-5995/6071 (6th Cir.  Feb. 12, 2019). Many companies now seek to classify their employees as independent contractors in order to avoid providing them overtime, health insurance, workers’ compensation protections, unemployment benefits, and even minimum wage and social security contributions. In 2017, the Trump Administration reversed Obama-era rules combatting this trend, signaling that the current Department of Labor would throttle back on investigation and enforcement of the Fair Labor Standards Act when it came to misclassified employees. The Fair Labor Standards Act is the federal law that requires employers to pay their employees minimum wage and overtime.

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EEOC Sees #MeToo Uptick, Regulatory Agenda Released

By Robin Shea

The Equal Employment Opportunity Commission recently released preliminary figures on sexual harassment activity for Fiscal Year 2018, which ended September 30. The EEOC’s figures indicate an increase in sexual harassment charges and EEOC lawsuits, and a dramatic increase in the amount paid to settle sexual harassment charges. Then, last week, the Trump Administration issued its regulatory agenda for Fall 2018, which contains a number of labor and employment-related matters.

EEOC #MeToo uptick

The following are highlights of the EEOC’s recently released preliminary numbers on sexual harassment for Fiscal Year 2018:

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Overtime, Non-Competes & Employee Medical Records: Three Topics for Employers in the Healthcare Field

By  L. Diane Tindall, Daniel Palmieri and Jenna Borders


The Fair Labor Standards Act (FLSA) is the federal law that mandates the payment of a federal minimum wage and overtime pay to workers who do not fall within a specific FLSA exemption.  The most common of these exemptions under the FLSA are the so-called “white collar” exemptions for employees whose pay and duties reflect their exercise of real managerial or executive authority in the workplace and their ability to better influence their compensation.  In general, in order to be exempt from the minimum wage and overtime provisions under the white collar exemptions of the FLSA, an employee: (1) must be paid at least $455 per week (or $24,300 per year); must be paid on a “salary basis” (with some exceptions); and (3) must perform duties that are consistent with an executive, administrative or professional position (the “duties test”).  To be paid on a salary basis, an employee must receive the same pay each work week in which he or she performs any work (with a very few limited exceptions) without any deduction for the quantity or quality of work performed.

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NC Casino Operator Faces Wage Suit

By Sean F. Herrmann

Gamblers aren’t the only ones complaining about pay-outs in North Carolina casinos. According to a class/collective action complaint (Clark v. Harrah’s NC Casino, LLC, 1:17-cv-240) filed on August 31, 2017, in the Western District of North Carolina, Harrah’s NC Casino Company, LLC, has failed to pay employees wages and overtime compensation.

Joseph Clark, the named plaintiff, filed on behalf of himself and other similarly situated employees at Harrah’s Cherokee Valley Rivery Casino & Hotel and Harrah’s Cherokee Casino Resort, both of which are operated by Harrah’s NC Casino Co. The complaint includes both Fair Labor Standards Act and North Carolina Wage and Hour Act claims.

Specifically, the complaint states that “Harrah’s willfully, deliberately, and voluntarily failed to pay Plaintiff and other similarly situation gaming floor employees all overtime compensation in violation of the FLSA by requiring them to perform work during their meal breaks, but subjecting them to an automatic 30-minute meal break deduction.” It also explains, “Harrah’s willfully, deliberately, and voluntarily failed to pay Plaintiff and similarly situated gaming floor employees all promised and earned wages on their regular pay day for all hours worked in violation of the NCWHA by requiring them to perform work during their meal breaks, but subjecting them to an automatic 30-minute meal break deduction.” It further alleges violations of the FLSA and NCWHA related to requiring the plaintiff and similarly situated employees to perform work without pay prior to the start of their scheduled shifts.

Clark, in the complaint, asserts that the NCWHA class could be comprised of at least 1,000 individuals. This case is in its infancy, but it’s one to keep an eye on.






Fourth Circuit Announces New Standard Assessing Joint and Several Liability for Joint Employers

By Jennifer Cotner

On January 25, 2017, the 4th Circuit U.S. Court of Appeals issued two game-changing companion decisions impacting the test for determining joint and several liability under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§201, et seq., for joint employers.

Salinas, et al. v. Commercial Interiors, Inc., et al., No. 15-1915

In Salinas, the plaintiffs were employees of J.I. General Contractors, Inc. (“J.I.”), a drywall installation contractor.  Plaintiff sued J.I. and Commercial Interiors, Inc. – a company offering general contracting and interior finishing services, including drywall installation – in this putative collective action as joint employers, alleging violations of the FLSA and Maryland law.  The U.S. District Court of Maryland granted summary judgment to Commercial, holding that it did not jointly employ plaintiffs because J.I. and Commercial Interiors were in a traditional contractor-subcontractor relationship not intended to evade compliance with the FLSA.

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Employer’s Attempt At Repayment Of Training Costs Can Backfire Causing Employee Misclassification Under the FLSA


By Andrew J. Henson and Michael A. Kornbluth

henson-andrewA growing practice among employers is to require new hires to sign a Training Cost Agreement (TCA), which puts employees on the hook for the cost of their on-the-job training if they quit or are fired before completing a period of years of work for the employer. The concept is something like the evil twin of the signing bonus. However, a recent court ruling in the Middle District of North Carolina suggests enforcing these agreements may backfire and cause an employee who was previously exempt from overtime laws under the Fair Labor Standards Act to suddenly become subject to overtime laws, leaving the employer liable for back pay for any hours of unpaid overtime.

kornbluthmichaelUnder the FLSA, employees are entitled to “a fair day’s pay for a fair day’s work.” This includes overtime for nonexempt employees who work more than forty hours in a week. Exempt employees are not entitled to overtime. The determination of who is exempt and who is not can be complicated, and has been subject to fierce dispute in the courts. Typically employees classified as exempt are those whose job duties can be considered administrative, executive, or professional. But, these white collar workers may still qualify as nonexempt employees, if the way they are paid does not satisfy what’s called the “Salary Basis Test.”

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Knowing When a Bonus Must Be Included In Overtime Pay

murphyfletcher2By Murphy H. Fletcher

Everyone likes a bonus, right?  Employees enjoy receiving them, for obvious reasons, and employers use them as a means of rewarding employee achievements and increasing morale.  But while paying employees a bonus can seem like a relatively straightforward benefit, depending on how the employer structures the bonus, the bonus can have long-reaching affects by increasing a non-exempt employee’s regular rate of pay for overtime purposes.

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