Bonus and Volunteer Work Counts Toward Overtime? Fourth Circuit says “No!”

Darrell VanDeusen
Darrell VanDeusen
06/28/2021
Overreaching has become an unfortunate consequence of life these days.  Here’s one example.   The Fourth Circuit recently affirmed dismissal of a lawsuit filed by a group of Lowe’s employees who alleged that bonus payments and volunteer time should count in the calculation of overtime due them.  McPhee v. Lowe’s Home Ctrs., 2021 U.S. App. LEXIS 18076 (4th Cir. June 17, 2021). You may recall way back in late 2017 there was a change in the...
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New Virginia Overtime Law Takes Effect July 1

Kollman & Saucier
Kollman & Saucier
06/21/2021
On July 1, 2021, Virginia’s new Overtime Wage Act will take effect.  Employers with employees  in Virginia need to review the way in which they calculate overtime for salaried non-exempt employees, as the new law makes it impermissible to use the FLSA’s “fixed salary for fluctuating workweek” methodology that allows employers to pay a half-time premium for overtime hours. The new law was signed by Governor Northam or March 30, 2021, and...
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Judge Rejects DOL Opinion Letter on Reimbursement of Delivery Drivers

Kollman & Saucier
Kollman & Saucier
05/14/2021
Waters v. Pizza to You LLC, S.D. Ohio, No. 3:19-cv-00372, 5/7/21, is a case that involves delivery drivers who used their own vehicles to deliver pizzas for their employer.  During the period at issue, the drivers were reimbursed $1 for each delivery, and that rate eventually was increased to $1.25.  Given the average delivery radius, the reimbursement was less than the IRS business mileage rate, which was $0.54/mile.  No actual vehicle expenses...
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DOL Reverses Policy Limits On Liquidated Damages For Wage Violations In Pre-Litigation Settlements

Kollman & Saucier
Kollman & Saucier
04/12/2021
On April 9, 2021, the Department of Labor issued revised guidance on the agency’s use of liquidated damages to settle wage violations, rescinding limits imposed by the Trump administration less than a year ago. Under the Fair Labor Standards Act (FLSA), employers who violate certain provisions of the Act pertaining to minimum wage, overtime, and tipped employees, are liable for unpaid wages plus an additional equal amount as liquidated damages. ...
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Biden DOL Revokes Three Eleventh-Hour Trump DOL Opinion Letters

Kollman & Saucier
Kollman & Saucier
01/27/2021
In its final days under the Trump administration, the Department of Labor (DOL) had advanced three opinion letters on independent contracting and tip-pooling rules.  On Tuesday, the DOL's Wage and Hour Division revoked the letters under the Biden administration's regulatory review freeze.  The independent contracting rule would have permitted a simpler legal standard for classifying workers as independent contractors rather than employees covered...
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DOL Issues Four New Wage & Hour Opinion Letters

Kollman & Saucier
Kollman & Saucier
01/20/2021
The U.S. Department  of Labor issued four new opinion letters on January 19, 2021: FLSA2021-6 A trade association of staffing firms asked for an opinion on whether the Fair Labor Standards Act’s (FLSA) “retail or service establishment” exemption applies to staffing firms that recruit, hire, and place employees on temporary assignments with clients.     Qualifying for the exemption would mean there is no overtime requirement under the...
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Two New Wage & Hour Opinion Letters from DOL

Darrell VanDeusen
Darrell VanDeusen
01/12/2021
In the final weeks of the Trump administration, the Department of Labor has been busy putting out guidance on wage and hour matters.   Let’s put aside last week’s Final Rule on independent contractors, issued January 6, 2021.  That rule is expected to face substantial challenge in court, so while it is an interesting change in approach by the DOL, all should recognize the uncertainty of its lasting effect. Please turn instead to two Wage...
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DOL Issues Guidance For Tracking Employee Telework Hours

Kollman & Saucier
Kollman & Saucier
08/27/2020
In response to the increase in pandemic-generated remote work, the DOL has issued a Field Assistance Bulletin (No. 2020-5) that offers guidance (applicable to both COVID and non-COVID telework arrangements) on how businesses should manage pay for such work. The guidance emphasizes that remote workers must be paid for all work that an employer knows or “has reason to believe” was performed, and applies a “reasonable diligence” standard to...
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DOL Will No Longer Seek Liquidated Damages As A Default Policy In Wage And Hour Cases

Vincent Jackson
Vincent Jackson
06/25/2020
The Department of  Labor has pulled back from its policy of seeking liquidated damages – or “double” damages – against employers in wage and hour investigations.  On June 24, 2020, the DOL issued a field assistance bulletin which stated that it will no longer apply the default policy of seeking pre-litigation liquidated damages from employers who are found to owe back wages to workers.  Specifically, the Department will not assess...
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4th Circuit Holds That IBM Can’t Have Their Cake and Eat It Too

Kollman & Saucier
Kollman & Saucier
06/08/2020
Justin Fessler, a sales information specialist, brought suit in Alexandria, Virginia against IBM for allegedly capping his sales commission on several large transactions. Fessler claimed that IBM represented to him orally, through PowerPoint presentations, and in practice, that his sales would not be capped.   In Fessler v. IBM, the United States Court of Appeals for the Fourth Circuit reversed a lower court’s decision granting IBM’s...
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