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Category Archives: Wage and Hour Law and Practice

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What Makes a Volunteer? Sixth Circuit Clarifies Test for Determining Employment Status of Volunteers

Posted in Wage and Hour Law and Practice

Volunteerism is good and should be encouraged by employers.  However, with its use come concerns that the persons engaged in the labor may not actually be considered volunteers by the courts.  This is particularly true in the Sixth Circuit, where the court of appeals has rejected the “threshold-remuneration test,” an employer-friendly test that looks primarily… Continue Reading

Massachusetts Becomes the Third State to Require Paid Sick Days

Posted in Wage and Hour Law and Practice

Voters in Massachusetts have approved a statewide law mandating employers with at least 11 employees provide those employees with up to 40 hours of paid sick time per year.  This mandate makes Massachusetts the third state requiring paid sick days, behind Connecticut and California.  Under the new law, effective July 1, 2015, Massachusetts employees can… Continue Reading

Top Ten Takeaways from the Employment Law Update

Posted in Employee Benefits, Retaliation/Whistleblower, Wage and Hour Law and Practice

On June 12 in Nashville and on June 26 in Memphis, attorneys from the Bass, Berry & Sims Labor and Employee Benefits Practice Groups presented to gatherings of corporate counsel, human resources professionals, state employees, and others about the current state of key issues in employment and benefits law.  Below is a list of the top “take-aways”… Continue Reading

DOL Publishes Rule to Raise Minimum Wage to $10.10 on Federal Contractors

Posted in Wage and Hour Law and Practice

The White House and the Department of Labor (DOL) released a proposed rule that would raise the minimum wage for employees under federal contracts from $7.25 to $10.10 per hour, a 39% increase.  The proposed rule implements Executive Order 13658, Establishing a Minimum Wage for Contractors, which was signed by President Obama on February 12, 2014. … Continue Reading

Supreme Court Overturns Sixth Circuit Ruling Exempting Certain Severance Payments from FICA

Posted in Employee Benefits, Wage and Hour Law and Practice

On March 25, 2014, the Supreme Court of the United States (the “Supreme Court”) voted unanimously to overturn the Sixth Circuit Court of Appeals (the “Sixth Circuit”) ruling in United States v. Quality Stores, Inc. (“Quality Stores“). As we outlined in a previous alert, in September 2012, the Sixth Circuit ruled in Quality Stores that a type of severance payment… Continue Reading

DOL steps up enforcement efforts on employers who misclassify workers as independent contractors

Posted in Wage and Hour Law and Practice

In 2011, the Department of Labor (DOL) initiated a crackdown on employers who misclassify employees as independent contractors. Employers are not required to withhold income taxes from an independent contractor’s pay, and they do not have to pay FICA (Social Security and Medicare) and FUTA (federal unemployment) taxes for the contractor. Employers also do not… Continue Reading

Successor Liability in “Asset Deal” Extends to Wage/Hour Liability

Posted in Wage and Hour Law and Practice

The Seventh Circuit recently held that a purchaser in an “asset deal” of a business in receivership was found to be a successor employer for the purposes of a $500,000 wage/hour settlement. The liability was imposed on the purchaser even though the contract formalizing the asset deal expressly excluded that liability. Teed v. Thomas &… Continue Reading

Which types of employees are considered “agents” of an employer for purposes of sharing in tip pools?

Posted in Wage and Hour Law and Practice

The question of which types of employees are considered agents of their employer for purposes of sharing in tip pools has come to the forefront in a number of cases filed against Starbucks. The Starbucks litigation is an excellent reminder to employers that issues concerning the payment of wages, in particular tip pooling, may involve… Continue Reading

Sixth Circuit Recognizes Potential RICO Claim If Employees Wrongfully Denied Workers’ Compensation Benefits

Posted in Wage and Hour Law and Practice

Employees in Michigan, Ohio, Kentucky and Tennessee who believe they have been wrongfully denied workers’ compensation benefits now have a new weapon – RICO. In Brown v. Cassens Transport Co., 6th Cir., No. 10-2334, 4/6/12, five employees sued their employer, a claims adjuster and a doctor alleging conspiracy to deny them workers’ compensation benefits. The Sixth… Continue Reading

Do Bouncers Provide Customer Service? The Challenges of Tip Pooling

Posted in Wage and Hour Law and Practice

On February 13, 2012, the federal district court for the Middle District of Tennessee granted conditional certification of a class action case under the Fair Labor Standards Act (“FLSA”) against Coyote Ugly saloons. As reported by Law360, the court conditionally certified several distinct classes, the most interesting of which is all employees who “worked as… Continue Reading

DOL Proposes New Rules Severely Limiting Home Care Worker Exemption

Posted in Wage and Hour Law and Practice

In a move that could significantly increase employer costs in the home care market, the Department of Labor has published proposed rules that will severely limit the current minimum wage and overtime exemptions for those who provide “companionship services.” The proposed rules basically do two things: The rules narrow the definition of “companionship services. The… Continue Reading

“Jury Duty” Includes Commuting Time to Court

Posted in Doing Business in Tennessee, Wage and Hour Law and Practice

Most Tennessee employers are required to pay employees their “usual compensation” for jury duty.  But, what time is included in the phrase “jury duty” for the purpose of paying employees who serve? That question was the subject of a recent Tennessee Attorney General opinion.  The Attorney General clarified that, under Tennessee law, jury duty includes… Continue Reading

Union’s Financing Of Lawsuit Objectionable Conduct During Union Campaign

Posted in Labor Board Proceedings and Practice, Union Organizing and Collective Bargaining, Wage and Hour Law and Practice

According to the National Labor Relations Board (NLRB), a Union engages in objectionable conduct if, during a union campaign drive to represent workers, the union finances a lawsuit seeking to recover overtime pay for the same employees being recruited to vote for the union.  This decision is important for two reasons: Employers facing an overtime… Continue Reading

Should Employers Now Ask All Applicants If They Have Sued Under FLSA On A Background Check?

Posted in Retaliation/Whistleblower, Wage and Hour Law and Practice

A federal appeals court recently held that a job applicant cannot sue a prospective employer for retaliation under the Fair Labor Standards Act (FLSA).  In the case, Dellinger v. Science Applications International Corp., the employee had to complete a security clearance form after a conditional offer of employment.  The form asked the applicant if she… Continue Reading