FLSA

Swinging for the Fences: Minor Leaguers Continue Suit Alleging They Were Paid Peanuts By The MLB

Gary Siniscalco, Julia Riechert and Michael DisotellPosted on June 9, 2015

Baseball season is well underway as fans fill themselves up on hot dogs and beers, don their rally caps for some late-inning luck, and cheer for their favorite players. Meanwhile, a class action against Major League Baseball by former minor league players has been trotting through federal court. In Senne v. MLB, No. 3:14-cv-00608-JCS (N.D. Cal. Feb. 7, 2014), ECF No. 1, the plaintiffs cry foul in alleging that “paying their dues” on the way to the big leagues isn’t paying the bills. Specifically, the plaintiffs allege that MLB and all 30 of its teams have violated the FLSA by not paying the minor leaguers overtime and minimum wage.

Class Action Lawsuits: In Vogue? High Fashion Gets Hit with Wage and Hour Class Action Lawsuits over Unpaid Internship Programs

Pat GillettePosted on February 18, 2015

Sportswear-inspired designs, bold prints, and gingham aren’t the only things trending for Spring 2015 in the fashion world. Judging from a recent wave of lawsuits, wage and hour class actions are trending as well. Over the past few years, class action lawsuits over unpaid internships have been on the rise, with this most recent wave of filed lawsuits serving as a powerful reminder to employers that intern programs can’t simply be viewed as a way to recruit free labor.

U.S. Supreme Court Holds Security Screenings Are Not Compensable Under the FLSA

Jessica Perry and Allison Riechert GiesePosted on December 9, 2014

In a long awaited 9-0 decision, the U.S. Supreme Court held that employers are not required to compensate employees for time spent waiting for and undergoing security screenings (aka bag checks) under the Fair Labor Standards Act. It concluded that security screenings were noncompensable postliminary activities because they were not the “principal activities” the employees were employed to perform, nor were they “integral and indispensable” to those activities. The case is Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. ____ (2014) and a copy of the opinion can be found here.

Shake It Off: Employer Misclassification of Exotic Dancers under the Fair Labor Standards Act

Pat Gillette and Renee PhillipsPosted on December 2, 2014

Recently, there’s been a wave of Fair Labor Standards Act (“FLSA”) rulings adverse to employers in the adult entertainment industry. Early this year, a Southern District of New York judge approved an $8 million settlement for a class of dancers at an adult establishment who alleged that they were misclassified as independent contractors. See In re: Penthouse Executive Club Compensation Litigation, Case No. 1:10-cv-01145, 2014 U.S. Dist. LEXIS 5864 (S.D.N.Y. Jan. 14, 2014). And just last month, the court in Hart, et al. v. Rick’s Cabaret Int’l, Inc., Case No. 1:09-cv-03043, 2014 U.S. Dist. LEXIS 160264 (S.D.N.Y. Nov. 14, 2014) which previously had held that dancers at the New York club were employees under the FLSA, denied a motion to decertify the class and awarded almost $11 million in damages to the dancers for FLSA violations.

The Supreme Court Hears Oral Argument in Busk: Could Employers Have to Pay for Employee Time Spent Passing Through Security?

Michael Weil, Julia Riechert and Mark ThompsonPosted on November 18, 2014

On October 8, 2014, the U.S. Supreme Court heard oral argument in Integrity Staffing Solutions, Inc. v. Busk. In Busk, plaintiffs allege that, under the FLSA, their employer should have compensated them and other warehouse employees for time spent passing through the employer’s security clearance at the end of their shifts, including their time spent waiting in line to be searched. Busk is an important case to watch because the Court may provide employers with wide-ranging guidance on what pre-work or post-work tasks are compensable.

Take Your Pick: E.D.N.Y. Decision Offers Guidance for Plaintiffs and Defendants Alike on How to Handle “Picking Off” Attempts in FLSA Collective Actions

Lisa Lupion and Jessica PerryPosted on November 4, 2014

“Sometimes surrender is the best option.” That is how Judge Raymond J. Dearie of the Eastern District of New York begins his opinion in Anjum v. J.C. Penney Co., Inc., before denying J.C. Penney’s motion to dismiss a putative Fair Labor Standards Act (FLSA) collective action based on the company’s offer to pay the claims of four named plaintiffs with offers of judgment under Federal Rule of Civil Procedure 68—a strategy often referred to as “picking off.” Even though the court rejected J.C. Penney’s picking off attempt in this case, the judge’s opinion in Anjum recognizes the validity of this tactic and provides some practical lessons for defense counsel looking to successfully pick off an FLSA collective in the Second Circuit.

It Might be Mechanical, But It’s Exempt: Court Dismisses Temp Document Reviewing Attorneys’ Overtime Collective Action

Jill L. Rosenberg and Lisa LupionPosted on September 19, 2014

A district court in New York dismissed the putative collective action filed by a contract attorney who performed document review for Skadden, Arps, Slate, Meagher and Flom LLP (“Skadden”) for fifteen months. See Lola v. Skadden, Arps, Slate, Meagher & Flom LLP. Under the Fair Labor Standards Act (“FLSA”), an employee is exempt from overtime as a professional employee if he or she is “the holder of a valid license . . . permitting the practice of law” and “who is actually engaged in the practice thereof.” 29 C.F.R. § 541.3. The named plaintiff and proposed class representative, David Lola, was a licensed attorney, and, therefore, the dispositive question was whether he was practicing law such that he qualified for the exemption.

Are Employees Owed Pay for Going Through Security? SCOTUS Will Decide

Andrew LivingstonPosted on March 18, 2014

The U.S. Supreme Court granted cert on March 3, 2014 in Integrity Staffing Solutions, Inc. v. Jesse Busk to resolve a federal circuit split on whether time employees spend in security screenings is compensable under the FLSA. The issue is whether security screenings are quintessential “preliminary” or “postliminary” activities that are non-compensable under the FLSA (as held by the Second and Eleventh Circuits) or whether time spent in security screenings is potentially compensable because it is “integral and indispensable” to an employee’s principal job duties (as held by the Ninth Circuit). READ MORE →

Paid in Singles for a Shot at the Big Leagues: Former Minor Leaguers Sue MLB for Wage-and-Hour Violations

Rachel Muoio and Tracy ScheidtmannPosted on February 25, 2014

Spring training is just around the corner and major leaguers have already reported to their first workout. Meanwhile, an interesting development–three former minor leaguers have filed a lawsuit against Major League Baseball, Bud Selig, and three MLB teams, claiming that the MLB has failed to pay overtime and minimum wages in violation of the FLSA and various state labor laws. According to the plaintiffs, the MLB “has a long, infamous history of labor exploitation dating to its inception” by hoarding players, depressing salaries, and preventing unionization of the minor leagues. See Complaint, Senne v. MLB, No. 3:14-cv-00608-JCS (N.D. Cal. Feb. 7, 2014), ECF No. 1. The case is presently before Magistrate Judge Joseph C. Spero. READ MORE →

Strippers and the Fair Labor Standards Act: Lessons for All Employers

Jessica PerryPosted on January 22, 2014

Late last month, in the Southern District of Florida, adult entertainers at several Rick’s Cabaret locations filed a lawsuit alleging that they were improperly categorized (and thus improperly compensated) as independent contractors rather than employees. See Espinoza, et al. v. Rick’s Cabaret Int’l, Inc., Case No. 1:13-cv-24565-UU. In light of recent decisions, Rick’s—like other employers classifying workers as independent contractors—should proceed with caution.

The past several months have seen a spate of rulings adverse to employers in the adult entertainment context. Early last year, a Southern District of New York judge approved an $8 million settlement for a class of dancers at another adult establishment who alleged that they were misclassified as independent contractors. See In re: Penthouse Executive Club Compensation Litigation, Case No. 1:10-cv-01145. In September 2013, in a different S.D.N.Y. case, the court in Hart, et al. v. Rick’s Cabaret Int’l, Inc. found that dancers at the New York club location were employees, not independent contractors, for purposes of the Fair Labor Standards Act (“FLSA”) and the New York Labor Law. And just last week a Northern District of Georgia judge who previously certified a class of adult entertainers who alleged they were wrongly classified as independent contractors granted the entertainers’ summary judgment motion with respect to their status as employees under the FLSA. See Stevenson, et al. v. The Great American Dream, Inc., No. 1:12-CV-3359-TWT.

In finding no independent contractor relationship in Hart, the court cited the existence of club guidelines that governed dancers’ dress/appearance (e.g., body glitter forbidden, 4-inch stiletto heels required), behavior in the club (e.g., gum chewing or using a cell phone on the dance floor prohibited), when dancers could be scheduled to work, various fees dancers were required to pay, and manner of performance (e.g., prohibition on more than one knee touching the ground when performing on stage). Of virtually no significance was the fact that there were signed agreements between dancers and Rick’s Cabaret expressing that the employment relationship was that of an independent contractor.

Irrespective of industry, companies that utilize independent contractors are well advised to periodically reexamine the economic realities of those relationships.

Employment Law and Litigation