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Wage & Hour Collective and Class Litigation

Co-Authored by Noah A. Finkel, Brett C. Bartlett, Andrew M. Paley, Senior Editor Richard L. Alfred

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“Given the recent explosion of wage and hour litigation, both management- and plaintiff-side attorneys will find this publication to be an invaluable reference. With its painstaking attention to the law and procedure, this treatise will certainly be the go-to resource when practitioners ponder questions of strategy and substance in the context of wage and hour cases.”

— The Honorable Elaine L. Chao, 24th U.S. Secretary of Labor (2001-2009)


Wage and hour litigation continues to proliferate, carrying with it the risk of potentially exorbitant damage awards. Written from the defense perspective, Wage & Hour Collective and Class Litigation covers every step of a case, from complaint to certification, trial, verdict, settlement or dismissal. It's the first and only publication focusing exclusively on this growing area of practice and provides a vital weapon for employers.

This comprehensive, up-to-date guide discusses how employers are targeted and the substantive, procedural and practical considerations that determine the outcome of wage and hour cases in todays courts. It includes analysis of the complex rules surrounding all types of wage and hour lawsuits: claims under the Fair Labor Standards Act (FLSA), claims under state wage and hour laws, “hybrid” cases involving both, and special issues involving government contractors. It explains how to proceed upon receipt of a wage and hour claim, how to assess the merits of the claim, whether to settle, how to oppose plaintiffs' motion for conditional certification and to facilitate notice, what the best affirmative defenses are, and how to tilt the odds in the defense's favor.

Though designed to assist defense lawyers, this companion to high-stakes litigation will also prove useful to in-house counsel not involved in litigation, to plaintiffs' lawyers seeking analysis from the viewpoint of opposing counsel, and to any attorney developing an interest in this robust field of law.

Book #00715; looseleaf, one volume, approximately 912 pages; published in 2012, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-178-1.

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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 912
  • ISBN: 978-1-58852-178-1
  • Pub#/SKU#: 715
  • Volume(s): 1

Author Image
  • Noah A. Finkel
Noah A. Finkel is a Co-Chair of Seyfarth Shaw's Wage & Hour Litigation Practice Group and is resident in the firm's Chicago office. His principal area of concentration lies in wage-and-hour matters, in which he has represented companies in numerous collective and class actions under the Fair Labor Standards Act and/or state wage-and-hour laws. He also regularly advises companies on compliance with the Fair Labor Standards Act and state wage-and-hour laws, including the performance of exempt status reviews and pay practice audits. Mr. Finkel participated in drafting public comments to the U.S. Department of Labor on its proposed regulatory changes to the FLSAs white-collar exemptions on behalf of the Society for Human Resources Management and the Public Sector FLSA Coalition. Prior to joining Seyfarth Shaw, Mr. Finkel was law clerk to the United States District Judge Nancy G. Edmunds for the Eastern District of Michigan.


Author Image
  • Brett C. Bartlett
Brett C. Bartlett is a Co-Chair of Seyfarth Shaw's Wage & Hour Litigation Practice Group and chair of the Labor & Employment Department in Atlanta. Mr. Bartlett devotes the majority of his practice to the defense of complex federal and state wage and hour litigation, and has defended numerous class and collective actions brought by employees alleging entitlement to unpaid overtime and minimum wages in actions that have ranged from the most complex, brought as hybrid actions under state and federal law and involving thousands of employees, to the more basic, asserting individual claims for minimum wage or overtime under the FLSA. He also provides preventative counseling and change management assistance to employers wishing to limit their exposure to these actions  and to state and federal administrative agency investigation. Mr. Bartlett frequently speaks at seminars and conferences regarding employers' compliance with wage and hour matters, and contributes to various publications.


Author Image
  • Andrew M. Paley
Andrew M. Paley is a Co-Chair of Seyfarth Shaw's Wage & Hour Litigation Practice Group and is resident in the firms Los Angeles office. Mr. Paleys practice focuses on defending employers in complex collective and class action litigations. Mr. Paley has litigated numerous class and collective actions for alleged wage and hour violations under both state and federal law for clients in a variety of industries, and his experience includes the defense of large nationwide collective actions and multi-district litigations. He also advises clients on conducting pre-litigation wage and hour audits. Mr. Paley has written and lectured on numerous employment law topics, and has been a guest lecturer at the Stanford, Pepperdine, and Southwestern law schools.


Author Image
  • Richard L. Alfred
Richard L. Alfred is the Chair of Seyfarth Shaw's Wage & Hour Litigation Practice Group and of the firm's Boston office Labor & Employment Group. Mr. Alfred devotes virtually all of his practice to the representation of employers in large, often bet-the-company, wage and hour collective and class actions, including cases consolidated by the Panel on Multi-District Litigation. He has served as lead defense counsel in numerous cases of this type and has defended many large Fortune 500 companies in actions brought under the Fair Labor Standards Act and state wage and hour laws. Mr. Alfred is a Fellow of the College of Labor and Employment Lawyers and has been named Boston's 2011 and 2010 Labor and Employment Lawyer of the Year by Best Lawyers in America, in which he has been recognized for the past six years. For the past eight years, he has been ranked in the top band for Massachusetts Management Employment Lawyers in Chambers USA: America's Leading Business Lawyers. Mr. Alfred is a frequent speaker at meetings of professional organizations and has published extensively on many wage and hour issues.

Chapter 1
An Overview of Wage and Hour Litigation and Its Defense

§ 1.01Overview of Modern Wage and Hour Litigation
§ 1.02Defense Orientation
§ 1.03The Sources of Law
[1] Procedural Law
[2] Substantive Law
§ 1.04 Looking Forward

Chapter 2
The Genesis of a Wage and Hour Lawsuit

§ 2.01Introduction
§ 2.02The Fair Labor Standards Act
[1] Private Rights of Action
[2] Agency Actions
§ 2.03State Law
[1] Rights of Action Under State Law Compared to Rights Under the FLSA
[2] Rule 23 and How It Differs from Section 216(b)
[3] Other State Law Mechanisms for “Class” Actions

Chapter 3
Receipt of a Wage and Hour Complaint

§ 3.01Initial Case Assessment
[1] Document Preservation
[2] Delimiting the Class Definition
[3] Early Settlement Assessment
[4] Pursuing Settlement with Named Plaintiffs and Putative Class Members
[5] Determining Opposing Counsel’s Class Action Experience and Predilections
§ 3.02Removal to Federal Court
[1] Factors to Consider in Deciding Whether to Remove
[2] Grounds for Removal
§ 3.03Affirmative Defenses
[1] Portal-to-Portal Act Affirmative Defenses for FLSA Claims
[2] Other Defenses for FLSA Claims
§ 3.04Motions to Dismiss Wage and Hour Complaints
[1] Twombly and Iqbal Motions to Dismiss
[2] Applying the Twombly Standard to Wage and Hour Class or Collective Actions

Chapter 4
Defending FLSA Collective Actions — The Motion for Conditional Certification

§ 4.01The “Similarly Situated” Standard
[1] “Similarly Situated” Defined
[2] Two-Step Approach
[3] Standard of Proof
[4] Alternatives to Two-Step Approach
[5] Federal Rule of Civil Procedure 23 Factors
§ 4.02Merits of Plaintiffs’ Claims
§ 4.03Nature of Evidence on Motion for Conditional Certification
[1] Plaintiffs’ Affidavits
[2] Admissions
[3] Defendants’ Evidence
[4] Communications with Putative Opt-in Plaintiffs
§ 4.04Uniform Company Policy, Plan or Scheme
§ 4.05Job Duties and Other Employment Characteristics
§ 4.06Interest Among Putative Class Members
§ 4.07Fairness, Manageability and Other Factors
[1] Defenses
[2] Manageability
[3] Geographic Breadth
[4] Terms of Employment
[5] Fairness, Due Process and Other Factors

Chapter 5
The Order on the Motion for Conditional Certification

§ 5.01Introduction
§ 5.02Impact of Order Denying Conditional Certification
[1] Status of Opt-In Plaintiffs Following Denial of Conditional Certification
[2] Impact on Discovery and Subsequent Efforts to Obtain Conditional Certification
[3] Common Tactics Employed to Challenge a Denial of Conditional Certification
[4] Renewed Motion for Conditional Certification
§ 5.03Order Granting Conditional Certification and Approving Court-Facilitated Notice
[1] Introduction
[2] Relevance of the Type of Judge
[3] Substance of the Order
[4] Basis for Reconsideration
[5] Interlocutory Appeal
§ 5.04Substance and Administration of the Collective Action Notice
[1] Typical Contents of the Notice
[2] Drafting and Negotiating the Notice to Limit Its Negative Impact
[3] Limit Plaintiffs’ Contact with Putative Class Members Outside of the Notice Process
[4] Use of a Third-Party Administrator to Coordinate and Distribute the Notice

Chapter 6
Decertification

§ 6.01Generally
§ 6.02Obtaining Decertification
[1] “Similarly Situated” Three-Factor Test
[2] Common Practice or Policy
§ 6.03Whether to Move to Decertify
§ 6.04Timing of the Decertification Motion
§ 6.05Procedural Issues and Defense Strategy After Decertification

Chapter 7
Defending Rule 23 State Law Wage and Hour Class Actions

§ 7.01Introduction
[1] Class Actions in Federal Court
[2] Opt-Out Class Actions Brought in State Court
§ 7.02Initial Considerations
[1] Possible Removal
[2] Challenges to the Pleadings
[3] Evaluating Exposure
§ 7.03Class Certification Discovery
[1] Propounding Discovery on the Plaintiff
[2] Taking Plaintiff’s Deposition
[3] Plaintiff’s Discovery
[4] Challenging Overbroad Class Discovery
§ 7.04Challenging the Representative Plaintiff’s Claims Via Summary Judgment
§ 7.05Gathering Evidence to Defeat Class Certification
[1] Declaration Gathering
[2] Depositions of Putative Class Members
§ 7.06Affirmatively Moving for Denial of Class Certification Under Rule 23
§ 7.07Opposing Class Certification
[1] Rule 23 Requirements
[2] Level of Court Analysis Concerning Rule 23 Certification
§ 7.08Use of Experts
[1] Role in Employment Class Actions
[2] Analysis of Expert Evidence
§ 7.09Rule 23 Notice to Class Members
[1] Permitted Notice Under Rule 23(b)(1) or 23(b)(2)
[2] Differences Between FLSA “Opt-in” Notice and Rule 23 “Opt-out” Notice Under Rule 23(c)(2)(B)
[3] Content of Notice
[4] Costs
§ 7.10Rule 23(f) Interlocutory Appeals of Unfavorable Class Certification Rulings
§ 7.11Decertification of Certified Rule 23 Class
[1] Grounds for Granting Certification No Longer Exist or Never Existed
[2] Courts’ Ongoing Duty to Ensure Rule 23 Requirements Met
[3] Strategies to Position a Case for Decertification

Chapter 8
Discovery Issues in Class and Collective Actions

§ 8.01Generally
§ 8.02Discovery Identifying Potential Class or Collective Action Claims and Defenses
[1] Industry Practices and Other Litigation Trends
[2] Administrative Agency Investigations
§ 8.03Discovery During Litigation of Class and Collective Actions
[1] Prior to Certification
§ 8.04After Certification
[1] Purpose

Chapter 9
Unique California Class Issues

§ 9.01Introduction
§ 9.02Meal and Rest Period Claims
[1] Statutory Requirements for Meal Breaks
[2] Statutory Requirements for Rest Breaks
[3] Penalties for Non-Compliance
[4] Recordkeeping
[5] Debate Over Whether One-Hour Payment Is a “Penalty”
[6] Meaning of “Provide” a Meal Period
[7] Limits on IWC’s Power to Alter Labor Code Meal Period Rules
[8] AB 569: CBA Exemptions from Meal Periods for Certain Industries
§ 9.03Reimbursement of Employee Expenses
[1] The Duty to Reimburse Expenses Under Labor Code Section 2802
[2] Reimbursement for Uniforms Under the Wage Orders
§ 9.04Unlawful Commission Chargebacks
[1] Nature of the Violation
[2] The Steinhebel Case Approves Certain Chargeback Plans
[3] Further Development of the Law Since Steinhebel
§ 9.05Out of State Payroll Checks
[1] Nature of Violation
[2] Direct Deposit
[3] Penalties
§ 9.06Waiting Time Penalties, California Labor Code Section 203
[1] Generally
[2] Good Faith Dispute Affirmative Defense
[3] Fixed Term and Temporary Employment Assignments for a Fixed Term
§ 9.07Dual Purpose Remedies: Split Shift Premium and Reporting Time Pay
[1] Split Shift Premium Generally
[2] Reporting Time Pay Generally
[3] Is There a Private Right of Action?
§ 9.08Itemized Wage Statement Claims, California Labor Code Section 226
[1] Wage Statement Requirements, California Labor Code Section 226(a)
[2] The Remedy, California Labor Code Section 226(e)
§ 9.09California Labor Code Private Attorneys General Act
[1] General Scope of the Law
[2] Scope of the “Civil Penalty” Provisions
[3] Pursuing PAGA Claims Collectively Without Class Certification
[4] Release of PAGA Claims Through Class Settlement
[5] Wage Order Claims
§ 9.10Unfair Competition Claims, Business & Professions Code Section 17200
[1] Former Law — Pre-Proposition 64
[2] Reform of the Law — Passage of Proposition 64
[3] Proposition 64’s Restrictions on UCL Class Actions

Chapter 10
Defending Hybrid Cases

§ 10.01Introduction
§ 10.02Potential Advantages for Plaintiffs of State Wage and Hour Laws
[1] A State Law Class Is an “Opt-Out” Class, Typically with a High Participation Rate
[2] State Laws May Provide Longer Limitations Periods
[3] States May Have More Advantageous Substantive Laws
[4] State Law Remedies Sometimes Differ from Those Available Under the FLSA
§ 10.03Hybrid Section 216(b) and Rule 23 Actions
[1] Procedural Issues in Defending Hybrid Actions Supplemental Jurisdiction
[3] When Should an Employer Oppose Class Certification

Chapter 11
Defending ERISA Claims in Wage and Hour Actions

§ 11.01Introduction: ERISA for Wage and Hour Lawyers
§ 11.02ERISA Provisions and Claims in Wage and Hour Cases
[1] ERISA Fiduciary Duties
[2] ERISA Recordkeeping Requirements and Claims
§ 11.03Cases Rejecting ERISA Breach of Fiduciary and Recordkeeping Claims
§ 11.04Cases Allowing ERISA Claims

Chapter 12
Defending the Employer Against Multiple Cases at the Same Time

§ 12.01 Introduction
§ 12.02Consolidation of Cases in the Same Jurisdiction Under Section 1404 and Federal Rule of Civil Procedure 42
[1] Overview
[2] Applicability of Federal Rule of Civil Procedure 42
§ 12.03Consolidation of Multidistrict Litigation Under Section 1407
[1] The Judicial Panel on Multidistrict Litigation
[2] When Consolidation Is Appropriate Pursuant to Section 1407
[3] Determining Which Court Should Hear the Consolidated Cases
§ 12.04The Advantages and Disadvantages of Consolidated Proceedings Under Section 1404 or Section 1407
[1] The Potential Advantages of Consolidation
[2] The Potential Disadvantages of Consolidation
§ 12.05Formal Coordination May Not Always Be Necessary

Chapter 13
Litigation Hold Notices and Document Preservation

§ 13.01Introduction
§ 13.02The Duty to Preserve
[1] Triggering the Duty to Preserve
[2] The Scope of the Duty to Preserve
[3] Fulfilling the Duty to Preserve
[4] Proportionality and Opportunities to Narrow Preservation Obligations
[5] Risks of Noncompliance
§ 13.03Drafting and Issuance of the Litigation Hold Notice
[1] General Mechanics and Format of a Litigation Hold Notice
[2] Identifying Custodians of Potentially Relevant Information
[3] Defining the Scope of the Litigation Hold Notice
[4] Identification of Information Repositories and Formats
[5] Monitoring Compliance/Enforcement

Chapter 14
Arbitration Agreements

§ 14.01Litigation Versus Arbitration: Basic Differences
§ 14.02Governing Authorities
[1] Fair Labor Standards Act
[2] Federal Arbitration Act
[3] Potential Legislation: Arbitration Fairness Act
[4] State Law
[5] Arbitral Forums
§ 14.03Enforceability and Effectiveness of Class Arbitration Waivers
[1] The Rise of Class and Collective Arbitrations
[2] Post-Bazzle Clause Construction Confusion
[3] Post-Bazzle Arbitration Issues Still Decided by the Courts
[4] Stolt-Nielsen Holds Parties Cannot Be Compelled to Submit to Class Arbitration Unless They Agreed to Class Arbitration
[5] Class Arbitration Waivers and Wage and Hour Claims
[6] The Current Role of State Unconscionability Law
[7] State Unconscionability Law Prior to AT&T Mobility
[8] Avoiding Unconscionability
[9] Capping the Value of Claims Subject to Arbitration
[10] Defining the Scope of the Arbitration in Advance
§ 14.04The Danger of Opt-Out Class Arbitrations Under the FLSA
[1] The Traditional Opt-In Rule for Collective Actions Under the FLSA
[2] The Long John Silver’s Decision and Its Significance

Chapter 15
Strategic Considerations in Moving for Summary Judgment

§ 15.01Introduction
§ 15.02Early Considerations in Motion Planning
[1] Cost
[2] Impact of Order on Class
[3] Timing
§ 15.03Target of Motion
[1] Summary Judgment as to the Named Plaintiff
[2] Summary Judgment as to the Class or Impacting the Class
[3] Successive Motions for Summary Judgment
[4] Eliminating Overlapping Litigation
[5] Motion for Summary Judgment on Damages
§ 15.04Timing
[1] Moving for Summary Judgment Before Class Certification
[2] Moving for Summary Judgment Against the Class
[3] Mediation with Summary Judgment Pending
§ 15.05Evidentiary/Discovery Issues on Summary Judgment Motions
[1] Evidence in Support of Summary Judgment
[2] Limiting Discovery Through Summary Judgment/Adjudication
§ 15.06Cross-Motions for Summary Judgment

Chapter 16
Wage and Hour Collective Action Trials

§ 16.01Introduction
[1] Wage and Hour Collective Action Trials Are Often Perceived As Being Unpredictable
[2] Wage and Hour Collective Action Cases May Actually Be More Amenable to Defense Verdicts
§ 16.02The Employer’s Defense Themes
[1] The Jury Should Not Feel the Need to Be “Righting Wrongs”
[2] The Jury Should Be Convinced That There Are No Classwide Wrongs
§ 16.03Presenting Contrary Evidence from Other Employees and Related Jury Instructions
§ 16.04Gathering Evidence That Will Be Effective at Trial in Collective Action Cases
[1] Identify Current and Former Employees Who Will Be the “Employer Representatives” to Refute the Claims of the Class Representatives
[2] The Value of Using Videotaped Depositions at Trial
§ 16.05The Employer’s Presentation of Evidence at Trial
[1] The Jury Should Be Convinced That Any Harm Was Due to the Plaintiffs’ Own Failure to Follow the Employer’s Policies
[2] Use of the Plaintiffs’ Own Statements Regarding Job Duties in Misclassification Cases
[3] Time Card Issues
[4] Union Issues
§ 16.06The Employer’s Strategies for Effectively Presenting Witnesses
[1] The Use of Class Member Testimony
[2] The Use of Testimony from the Class Representatives That Contains Unrealistic Estimates of Damages
[3] The Use of Testimony from the Employer’s Managers and Human Resources Officers
[4] Avoid Calling Too Many Defense Witnesses
[5] The Use of Expert Testimony
§ 16.07The Employer’s Preparation for Trial
[1] The Plaintiffs Should Be Required to Prepare a Trial Plan
[2] The Employer Should Conduct a Mock Trial or Focus Group Presentation
[3] The Use of Electronic or Video Evidence
§ 16.08The Employer’s Closing Argument

Chapter 17
Civil Remedies

§ 17.01Overview of Calculation of Unpaid Overtime
§ 17.02Calculation of Unpaid Overtime in Misclassification Cases Involving Salaried Employees
§ 17.03Liquidated Damages
§ 17.04Statute of Limitations
§ 17.05Attorneys’ Fees and Costs
§ 17.06Offers of Judgment
§ 17.07Individual Liability
[1] Determining Who Is an “Employer” for the Purpose of Individual Liability
[2] The Fact-Specific Nature of This Analysis Generally Prevents Dismissal Through a Motion to Dismiss or Summary Judgment Motion
[3] Rationale for Naming Individual as Defendant

Chapter 18
Settlement/Mediation

§ 18.01Introduction — Reasons for Settling
§ 18.02Conducting an Exposure Analysis
[1] Hours Worked
[2] Regular Rate
[3] Method of Calculating Overtime: 1.5 or 0.5?
[4] Statute of Limitations
[5] Liquidated Damages
[6] Punitive Damages
[7] Attorneys’ Fees and Costs
[8] Class Actions and Collective Actions
§ 18.03How to Settle
[1] Special Rules for FLSA Claims
[2] Initial Considerations in Negotiating Settlements in Class and Collective Actions
[3] Settlement Through a Mediator
[4] Obtaining Court Approval
[5] Scope of the Settlement
[6] Agreeing to Certify a Settlement Class
[7] “Holdout” Class Members
§ 18.04Related Issues
[1] Payments Made Under the Supervision of the DOL
[2] Remedial Actions During Litigation
[3] Using the All Writs Act to Preclude Initiation of Related Suits

Chapter 19
Enforcement Actions Filed by U.S. Secretary of Labor

§ 19.01Introduction
§ 19.02Section 16(c) Civil Enforcement Action Over Unpaid Overtime or Minimum Wages
§ 19.03Genesis of FLSA Section 16(c) Enforcement Actions
§ 19.04Special Considerations
[1] Discovery Issues
[2] Use of Representative Testimony
[3] Remedies

Chapter 20
White Collar Exemptions

§ 20.01Introduction
§ 20.02The Executive Exemption
[1] The Executive Exemption Under the FLSA
[2] The Executive Exemption Under State Law
§ 20.03The Administrative Exemption
[1] FLSA
[2] Different State Law Approaches — California
§ 20.04The Professional Exemption
[1] The Professional Exemptions Under the FLSA
[2] The Professional Exemptions Under State Law — California
§ 20.05The Computer Employee Exemption
[1] The Computer Exemption Under the FLSA
[2] The Computer Exemption Under State Law
§ 20.06The Outside Sales Exemption
[1] The Outside Sales Exemption Under the FLSA
[2] The Outside Sales Exemption Under State Law
§ 20.07Highly Compensated Employee Exemption
[1] Under the FLSA
[2] State Approaches to the Highly Compensated Employee Exemption
§ 20.08Requirements of the Salary Basis Test
§ 20.09Deductions from Pay
[1] Generally
[2] Deductions for Disciplinary Reasons
[3] Deductions for Personal Absences
[4] Deductions for Sickness or Disability
[5] Deductions Taken Pursuant to the Family and Medical Leave Act
§ 20.10Deductions from Vacation or Leave Banks
§ 20.11Responses to Downturns in Business: Reductions in Pay and Furloughs
[1] Salary Reductions
[2] Furloughs
§ 20.12Additional Compensation for Exempt Employees
§ 20.13The Effect of Salary Basis Violations and Potential Exposure
[1] Actual Deductions
[2] Violations of the Salary Basis Test in the Absence of Actual Deductions
[3] Safe Harbor for Employers Who Make Impermissible Deductions

Chapter 21
Non-White Collar Exemptions

§ 21.01Generally
§ 21.02Section 7(i) “Commissioned Employees”
[1] One and One-Half Times the Federal Minimum Wage
[2] One-Half of Compensation Is Commission
[3] Work in a Retail or Service Establishment
§ 21.03The Motor Carrier Act Exemption
[1] The Employee Must Not Be a Covered Employee Under SAFETEA-LU TCA
[2] The Employee Is Employed by a Motor Carrier or a Motor Private Carrier
[3] The Employee’s Job Duties Satisfy the MCA Exemption

Chapter 22
Independent Contractors and Joint Employers

§ 22.01Introduction
§ 22.02 Independent Contractor or Employee Under the FLSA
[1] Statutory References and Early Development of the Economic Realities Test
[2] Application of the Economic Realities Test in the Courts of Appeal
[3] Standard of Review
§ 22.03Defending Independent Contractor Cases
§ 22.04State Law Tests
§ 22.05Joint Employment Under the FLSA
[1] DOL Joint Employment Regulations
[2] Joint Employment Analysis in the Courts
[3] Joint Employment Under State Wage and Hour Laws

Chapter 23
Was the Employee Paid for All Time “Worked”?

§ 23.01Background
§ 23.02Pre-Shift and Post-Shift Activities
[1] Travel and Commuting Time
[2] Preparing for and Concluding Work
[3] Waiting Time
§ 23.03Meal Breaks
[1] Is a Meal Period Compensable Under Federal Law?
[2] State Law Claims for Denial of Meal Periods
[3] Breach of Contract Claims for Denial of Meal and Rest Periods
§ 23.04Work During “Off Hours”
[1] Applying the Continuous Workday Analysis in the Modern Workplace
[2] On Call Time
§ 23.05Special Defenses
[1] The De Minimis Doctrine
[2] Gap Time

Chapter 24
The Regular Rate

§ 24.01The Regular Rate of Pay
§ 24.02Statutory Exclusions from the Regular Rate
[1] Gifts
[2] Payments/Reimbursements for Expenses Incurred for the Employee’s Benefits
[3] Payments for Occasional Periods When No Work Is Performed
[4] “Other Similar Payments” — “Show Up” and “Call Back” Payments
[5] Discretionary Bonus Payments
[6] Payments Pursuant to a Bona Fide Profit-Sharing Plan, Trust, Thrift or Savings Plan
[7] Benefit Payments
[8] Exclusions That May Also Serve as a Credit Against Overtime Obligations
[9] Stock Options, Stock Appreciation Rights and Employee Stock Purchase Programs
§ 24.03How to Calculate the Regular Rate
[1] Hourly Employees
[2] Hourly Rate Employees Receiving Additional Remuneration
[3] Piecework Employees
[4] Day Rates and Job Rates
[5] Calculating the Regular Rate for Semi-Monthly or Monthly Salary Pay
[6] Salaried Employees Working a Fixed Workweek
[7] Salaried Employees Working a Fluctuating Workweek
[8] Guaranteed Pay for Fluctuating Hours (Belo Plans)
[9] Overtime for Dual Function Employees Working at Two or More Rates

Chapter 25
Minimum Wage

§ 25.01Introduction
§ 25.02Pay Periods and Averaging
[1] FLSA Requirements
[2] Differing State Law Approaches
§ 25.03Commissions
§ 25.04Piece Rates
§ 25.05The Tip Credit and Tip Pooling Arrangements Under the FLSA and Corresponding State Law Variations
[1] The Tip Credit Allowance Under the FLSA
[2] Tip Pooling Arrangements Under the FLSA
[3] Actions Alleging Tips Were Diverted to Coworkers Who Did Not Earn Them
[4] Actions Alleging “Agents” of Management Wrongfully Took Tips
[5] Varying State Laws Governing the Tip Credit and Tip Pooling Arrangements

Chapter 26
Deductions from Wages

§ 26.01Deductions from Wages Under Federal Law
[1] Generally
[2] Permissible Deductions for Board, Lodging or Other Facilities
[3] Other Permissible Deductions
[4] Generally Impermissible Deductions
§ 26.02Deductions from Wages Under State Law
[1] State Law Limitations Generally
[2] California Limitations
Chapter 27
Wage-Related Standards Applicable to Certain Government Contractors: the Service Contract Act, the Davis- Bacon Act and Related Acts, the Copeland Act, and the Contract Work Hours and Safety Standards Act

§ 27.01The Service Contract Act
[1] Coverage Under the Service Contract Act
[2] Issues Related to Wage Determinations Under the SCA
[3] Posting and Recordkeeping
[4] Investigations and Enforcement
§ 27.02The Davis-Bacon Act and Related Acts
[1] Coverage and Application of the Davis- Bacon Act and Related Acts
[2] Davis-Bacon Wage Determinations
[3] Recordkeeping and Posting Requirements
[4] Investigations/Administrative Procedures
§ 27.03The Contract Work Hours and Safety Standards Act and the Copeland “Anti-Kickback” Act
[1] The Contract Work Hours and Safety Standards Act
[2] The Copeland “Anti-Kickback” Act Coverage
§ 27.04Appendix A: SCA Labor Standards Clauses
§ 27.05Appendix B: Davis-Bacon Act Labor Standards Clauses

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