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Sixth Circuit: Off-Duty Law Enforcement Misclassified as Independent Contractors

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February 12, 2019

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In Acosta v. Off Duty Policy Services, Inc., the Sixth Circuit applied the six-factor “economic reality” test to determine whether off-duty officers were misclassified as independent contractors for purposes of the Fair Labor Standards Act (FLSA). There, the employer provided private security services using off-duty, sworn police officers, as well as nonsworn workers. The workers were allowed to accept or reject work assignments, were provided basic equipment, but had to supply their own vehicles and uniforms. The sworn officers typically wore their officer uniforms and used their patrol vehicles, while the nonsworn workers had to use their own police-style vehicle.

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Second Circuit Refines the Definition of the Outside Salesperson Exemption

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September 19, 2018

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In Flood v. Just Energy Mktg. Corp., the Second Circuit Court of Appeal recently addressed what qualifies an employee for the outside sales exemption under the Fair Labor Standards Act (FLSA). Generally, the outside sales exemption is based on an employee’s primary duties – making sales or obtaining orders for contracts or services, while customarily and regularly engaged away from the employer’s place of business.

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Second Circuit Clarifies Damages and Shareholder Liability under the FLSA

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October 1, 2018

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In Tapia v. BLCH 3rd Ave. LLC, the Second Circuit Court of Appeal clarified that there is no double recovery of liquidated damages under the FLSA where damages are also awarded under state law. Additionally, the court reviewed direct shareholder liability under the FLSA by looking at the operational control of the alleged employer, including whether the individual has the power to: (1) hire and fire employees, (2) supervise and control employee work schedules or conditions of employment, (3) determine the rate and method of payment, and (4) maintain employment records.

There, the court found evidence that the shareholder only partially satisfied the fourth criteria of operational control. Ultimately, the court stated that status as a significant shareholder was not alone enough to show that the employer exercised or possessed financial control over the company to be held personally liable.

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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

New Wage and Hour Opinion Letters from the U.S. Department of Labor

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August 28, 2018

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The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) recently issued six opinion letters related to compliance with the Fair Labor Standards Act (FLSA) and the Family Medical Leave Act (FMLA). The opinion letters are meant to provide clarity on employee rights and employer obligations as interpreted by the DOL.

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Eleventh Circuit: Joint Employer Standard Clarified Under the FLSA and Common Law

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August 2, 2018

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In Garcia-Celestino v. Ruiz Harvesting, Inc., the Eleventh Circuit distinguished the joint employer standard under the Fair Labor Standards Act (FLSA) and common law. Each standard turns on the applicable definition of “employee” and “control,” but are not the same. There, migrant workers under the H-2A visa program filed suit against their employer and a citrus grove owner for minimum wage violations under the FLSA and for breach of their contract, which was based on federal immigration statutes and regulations. The court looked at whether or not the citrus grove owner was a joint employer.

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September Updates

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This Short List addresses the following topics:
  1. The DOL Created a New Department to Support Employer Compliance
  2. OFCCP Staff Must Account for Federal Contractors’ Religious Freedoms
  3. Federal Contractor Minimum Wage Increase for 2019
  4. Sixth Circuit: FLSA Does Not Invalidate Arbitration Agreements
  5. Eighth Circuit: USERRA Still Protects Employees Who Don’t Have Guaranteed Working Hours
  6. Ninth Circuit: Employers Can Prohibit Future Employment With Their Company
  7. California: Update to EDD Workplace Posting DE 1857A
  8. Massachusetts: Railway Unemployment Insurance Act Preempts Statewide Sick Leave
  9. New Jersey: New Bill Expands Ability to Claim Unemployment Insurance Benefits
  10. New Jersey: State and Federal Authorities Pledge Stronger Enforcement Against Misclassification
  11. New York City, NY: Anti-Sexual Harassment Poster and Fact Sheet Now Available
  12. South Carolina: Pregnancy Accommodations Poster Now Available
  13. Austin, Texas: The City’s Paid Sick Leave is On Hold – For Now
  14. Seattle, WA: New Employer Obligations for Domestic Workers

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Eleventh Circuit: Valet Uniforms May Be “Materials” Requiring FLSA Coverage of Employees

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June 29, 2018

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In Asalde v. First Class Parking Sys. LLC, the Eleventh Circuit Court of Appeal stated that a jury may determine whether valet uniforms meet the “materials” definition for “enterprise coverage” which would allow them the protections of the Fair Labor Standards Act (FLSA). The FLSA applies, in part, to employers who have “employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for [interstate or international] commerce by any person” and have an annual volume of business of at least $500,000. (Emphasis added.)

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Fifth Circuit: Clarification on Small Vehicle Exception to the Motor Carrier Act Overtime Exemption

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May 16, 2018

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In Carley v. Crest Pumping Technologies, LLC, the Fifth Circuit recently clarified ambiguities in the small vehicle exception to the Motor Carrier Act (MCA) overtime exemption. Generally, the overtime requirements under the Fair Labor Standards Act (FLSA) do not apply to employees covered by the MCA, except for employees who operate vehicles weighing 10,000 lbs. or less under certain conditions (“small vehicle exception”).

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Sixth Circuit: Do Volunteers Have an Expectation of Compensation?

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April 16, 2018

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In Acosta v. Cathedral Buffet, the Sixth Circuit recently clarified the definition of a volunteer. There, a buffet restaurant, a for-profit corporation operated by Grace Cathedral, used volunteers to service patrons in addition to regular employees. The faith leader at Grace Cathedral told church members that God was calling on them to volunteer at the buffet, and that failing to do so was tantamount to a sin under the church’s doctrine. As a result of the church’s strategies, many members did volunteer. Employees and volunteers performed the same restaurant-related tasks; however, volunteers were not paid for their time.

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THE SCOTUS DECISION IS FINALLY HERE – Revisit Your Arbitration Agreements!

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May 21, 2018

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At long last, the U.S. Supreme Court finally issued its ruling on whether or not class action waivers in arbitration agreements violate the National Labor Relations Act (“NLRA”) – short answer, they don’t.

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