In Simmons v. United Mortgage and Loan Investment, LLC, the Fourth Circuit ruled for plaintiffs and reversed the district court in this wage and hour case.  The plaintiffs are Charlotte-based Junior Asset Managers for a mortgage company who were not paid overtime even though they worked more than 40 hours per week.  They brought claims under the Fair Labor Standards Act (FLSA) and North Carolina Wage and Hour Act (NCWHA) based on the failure to pay overtime.  The primary issue is whether the plaintiffs will be able to pursue their case as a collective and class action on behalf the other underpaid workers at the company.  The defendants tried to short-circuit the collective/class action process by tendering a limited settlement offer before other workers could be notified of the case.  The Fourth Circuit rejected this tactic, finding the settlement too indefinite to moot the case.  The Court remanded the case to the trial court to consider plaintiff’s motion to certify the collective action and plaintiffs’ amendments to the NCWHA claims.  Ann Groninger, Burton Craige, and Narendra Ghosh are representing the plaintiffs.

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Categories: Judicial Decisions, News of the Firm Tags: Ann Groninger, Appeals, Burton Craige, Charlotte, Class Action, Collective Action, Fair Labor Standards Act, FLSA, Fourth Circuit, Labor and Employment, Narendra Ghosh, NCWHA, North Carolina Wage and Hour Act, Overtime, Results, Wage and Hour, Wages

The New York Times has this article about the Obama Administration’s effort to enforce the child labor and wage and hour laws on farms, and describes the effort in North Carolina in particular.  The Fair Labor Standards Act (FLSA) contains several exceptions for farmworkers, but sometimes-ignored restrictions of child labor are apparently now being more vigorously enforced.

Categories: General News Tags: Child Labor, Fair Labor Standards Act, Farm Workers, FLSA, Labor and Employment, Minimum Wage, North Carolina

In a case that appears to one of first impression at the federal appellate level, the Ninth Circuit ruled in Cumbie v. Woody Woo, Inc., that there are no tip-pooling claims under the Fair Labor Standards Act (FLSA) for restaurant employees who are paid more than the minimum wage before tips.  FLSA, the federal wage and hour law, regulates how tips can be distributed and/or shared as part of its regulation of the minimum wage.  As restaurants commonly do, servers can be paid a small base amount and make the rest of their wages in tips.  Properly arranged, the tips paid to the servers are a “tip credit” for the employers that combines with the base pay to meet the minimum wage.  An employer can use a “tip pool” as part of its tipping system if it meets two requirements: (1) the employee is fully informed; and (2) the tip pool only includes “other customarily tipped employees.”  Disputes often involve this second requirement, e.g. if tips are shared with managers (who are not customarily tipped).

Reading the FLSA in this way, the Court held that because the servers in this case (who had brought a class and collective action case) were receiving a base pay that was already greater than the minimum wage, the employer was not taking advantage of the “tip credit,” and therefore did not have follow the tip-pooling regulations.  Of course, if the servers’ base pay had been less than minimum wage, the outcome would be entirely different.  (Also note that different analysis may apply under the North Carolina Wage and Hour Act.)

Categories: Judicial Decisions Tags: Case Commentary, Class Action, Collective Action, Fair Labor Standards Act, FLSA, Labor and Employment, Minimum Wage, NCWHA, Ninth Circuit, Tip Credit, Tip Pooling

A recent Wall Street Journal article highlights the trend of more retaliation cases being filed with the EEOC, and likely the courts.  In addition to retaliation claims that are filed with the EEOC (i.e. retaliation related to race, sex, disability, etc. discrimination), many other federal laws have anti-retaliation provisins (such as the Fair Labor Standards Act), as do several North Carolina laws (most importantly, the Retaliatory Employment Discrimination Act).  As shown in the graphs in the article, more discrimination claims overall are also being filed in these times of greater layoffs.

Categories: General News Tags: EEOC, Fair Labor Standards Act, FLSA, Labor and Employment, REDA, Retaliation, Retaliatory Employment Discrimination Act

In Boucher v. Shaw, the Ninth Circuit Court of Appeals ruled that individual managers/owners — in this case a hotel’s CEO, CFO, and labor/employment manager — may be held liable for unpaid wages, vacation, and holiday pay under the Fair Labor Standards Act (FLSA).  The FLSA allows suits to be brought against individuals, in addition to the employer-company itself, in certain cases.  Specifically, individuals can be on the hook if they “exercise control over the nature and structure of the employment relationship,” such as the managers here.   Significantly, the court also held that even though the company had gone into bankruptcy, the claims against the individual managers could proceed all the same.  The bankruptcy affects claims against the company, but not claims against the individual managers.  This is an important principle for workers who are cheated out of wages by failing companies.

Categories: Judicial Decisions Tags: Bankruptcy, Case Commentary, Fair Labor Standards Act, FLSA, Labor and Employment, Lost Wages, Manager Liability, Ninth Circuit