The Employer’s Wage and Hour Advisor

Federal judge probes deep on Uber’s proposed deal with drivers in 2 states as drivers in the other 48 sue, yet ride-sharing giant appears set to avoid trial on merits of misclassification issue

If you are waiting for an answer to the question of how workers in the “gig economy” should properly be classified, you probably should not hold your breath.

Wage and hour class and collective actions have sky-rocketed in recent years. This increase in “bet the business” litigation has been facilitated, in part, by the unique process courts must follow under the Fair Labor Standards Act (FLSA) to certify an FLSA collective action (versus a typical class action under Rule 23 of the Federal Rules of Civil Procedure). Citing the “modest” showing necessary to conditionally certify an FLSA collective action, plaintiffs’ attorneys regularly obtain employee lists without establishing that a case actually can proceed on a class basis. Employers should know, however, that the fight is not over once a court conditionally certifies a collective action.

Are you paying the intern you just sent out to grab your morning cup of coffee?  If not, you may have a wage and hour violation on your hands.  Private employers have increasingly come under attack over their use of unpaid interns by the Department of Labor and private litigants.  This is especially the case where an unpaid intern performs tasks more akin to an administrative assistant than an on-the-job student/trainee.

Sometimes the hunter becomes the hunted.  That’s a lesson the U.S. Department of Labor (“DOL”) recently learned.  In an opinion dated July 2, 2015, the United States Court of Appeals for the Fifth Circuit reprimanded the DOL for pursuing “poorly documented” and “legally dubious” claims.  The Fifth Circuit found that the DOL had engaged in “uncivil and costly litigation tactics,” attempting to prevail by oppressively pursuing a very weak case.  Ultimately, the court held that the DOL had “acted in bad faith” and ordered the district court to enter an award against the DOL for hundreds of thousands of dollars in attorneys’ fees.

Is Uber just a software platform, or is it an employer of hundreds of thousands of drivers?  Federal and state courts in California are considering this issue, and their ultimate findings will have implications for the new start-up economy.

The White House announced that the long-awaited proposed amendments to the Fair Labor Standards Act regulations concerning the so-called “white collar” exemptions will include a substantial increase to the salary required to maintain exempt status for most executive, administrative, and professional employees.

Employers should be vigilant, now more than ever, concerning the steps they take to ensure compliance with wage and hour laws.