Yesterday, the Supreme Court of the United States granted a writ of certiorari in Christopher v. SmithKline Beecham Corp.  The Ninth Circuit’s opinion, now on appeal, can be viewed here.  The issue was whether pharmaceutical sales representatives are “outside salesman” as referenced in Section 213(a) of the Fair Labor Standards Act and therefore exempt from legal overtime requirements.  The Ninth Circuit Court of Appeals determined that the salespeople were exempt from overtime, thus refusing to defer to the Department of Labor’s regulations on this issue.

The Supreme Court has granted review on these issues:

“(1) Whether deference is owed to the Secretary of Labor’s interpretation of the Fair Labor Standards Act’s outside sales exemption and related regulations; and (2) whether the Fair Labor Standards Act’s outside sales exemption applies to pharmaceutical sales representatives.”

The petition for certiorari may be viewed here.

Categories: Judicial Decisions Tags: Appeals, Case Commentary, Department of Labor, FLSA, Labor and Employment, Ninth Circuit, Overtime, Sales Representatives, US Supreme Court, Wage and Hour

The Fourth Circuit recently issued a troubling 2-1 decision in Dellinger v. Science Applications International Corp.  The majority (Judges Niemeyer and Keenan) held that under the anti-retaliation provision for the Fair Labor Standards Act (FLSA, the federal wage and hour law), a job applicant cannot sue an employer that refused to hire her solely because she had sued her former employer for wage and hour violations.  Although this conclusion seems contrary to the spirit of FLSA’s protections, the majority reasoned that FLSA only allows suits by an individual against their employer, not prospective employer.  The dissent by Judge King is much more persuasive, arguing that FLSA can be read to cover this situation and that such a reading is in keeping with the recognized need to eliminate retaliation against those who assert their rights under FLSA, Title VII, or other employment laws.

Categories: Judicial Decisions Tags: Appeals, Case Commentary, FLSA, Fourth Circuit, Labor and Employment, Retaliation, Title VII

The Supreme Court of the United States ruled in favor of an employee last week in Kasten V. Saint-Gobain Performance Plastics Corp, which involves a retaliation claim based on verbal complaints of wage and hour violations.

The plaintiff, an employee at Saint-Gobain, complained verbally several times about the placement of the time clock at Saint-Gobain being unlawful.  The time clock was placed beyond the area where workers were required to dress in protective clothing thus they were not paid for the time they donned and doffed their protective work gear.  A lower court ruled in a related case that the placement of the time clock was indeed a violation of the Fair Labor Standards Act.  In this case, the Court considered the use of the phrase “filed any complaint” and whether it allowed for a complaint about a violation to be filed orally or if it strictly limited complaints to be filed in writing.  Justice Breyer thoroughly defined the word “file” and “filed” only to conclude that what really mattered was the spirit of the text.  Breyer found that the intended purpose of the FLSA was to protect employees many of which, at the time the law was written, were illiterate and incapable of filing complaints in writing.  The Court concluded that employees may file complaints orally if the complaint is “sufficiently clear and detailed [enough] for a reasonable employer to understand it.”  The Court, however, did not address an equally important issue about whether a complaint must be filed with a government agency, not simply an employer, to fall within the standards of the FLSA anti-retaliation provision.

This case is a partial win for employees, granting them further protection against employment discrimination under the FLSA.  (More coverage here.)

UPDATE: Jonathan Harkavy’s commentary on this case can be found here from his overview of the Supreme Court’s employment law decisions during their 2010 session.

Categories: Judicial Decisions Tags: Case Commentary, FLSA, Jonathan Harkavy, Labor and Employment, Retaliation, US Supreme Court, Wage and Hour

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.

More from the opinion below:

Read more…

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

In this case, plaintiffs are bringing collective action claims under the Fair Labor Standards Act (FLSA) based on the under-payment of wages and overtime at Smithfield Packing’s Tar Heel, North Carolina meat processing facility.  Magistrate Judge Gates issued an opinion last week recommending that defendant’s motion to decertify the FLSA collective action be denied.  If his recommendation is approved by the district judge, the case will proceed to trial as a collective action.  The plaintiffs are represented by several lawyers, including Ann Groninger.

Continue for details from the opinion: Read more…

Categories: Judicial Decisions, Results Tags: Ann Groninger, Case Commentary, Class Certification, Collective Action, EDNC, FLSA, Labor and Employment, North Carolina, Smithfield Packing, Unpaid Wages, Wage and Hour

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

In Simmons v. United Mortgage and Loan Investment, LLC, we have filed this reply brief with the Fourth Circuit Court of Appeals in this wage and hour case.  See here for a summary of the case.   Ann Groninger, Burton Craige, and Narendra Ghosh are representing the plaintiffs, who are seeking to remedy the company’s failure to pay overtime to themselves and other Junior Asset Managers.  Here is a summary of our argument to the Court:

Read more…

Categories: News of the Firm Tags: Ann Groninger, Appeals, Briefs, Burton Craige, Class Action, Collective Action, FLSA, Fourth Circuit, Labor and Employment, Narendra Ghosh, NC Wage and Hour Act, Overtime, Wage and Hour

In Simmons v. United Mortgage and Loan Investment, LLC, we have filed this opening brief with the Fourth Circuit Court of Appeals 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 FLSA and NC Wage and Hour law 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 have tried to short-circuit the collective/class action process by tendering a limited settlement offer before other workers could be notified of the case.  Ann Groninger, Burton Craige, and Narendra Ghosh are representing the plaintiffs. Read more…

Categories: News of the Firm Tags: Ann Groninger, Appeals, Burton Craige, Class Action, Collective Action, FLSA, Fourth Circuit, Labor and Employment, Narendra Ghosh, North Carolina Wage and Hour Act, Overtime, Wage and Hour

The federal Department of Labor is stepping up enforcement of the Fair Labor Standards Act (FLSA) with regard to unpaid internships because such arrangements very well could be violating the FLSA’s minimum wage requirements.

In other FLSA news, the Health Care Reform legislation (technically the Patient Protection and Affordable Care Act) contained a little-noticed provision that requires employers to provide breaks for nursing mothers.  The amendment will require all employers subject to the FLSA to provide rest breaks to mothers who wish to express breast milk.  The new law states that employers with fewer than 50 employees are not required to provide the breaks “if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”  DOL regulations explicating the provision are sure to follow.

Categories: Legislative Action Tags: FLSA, Interships, Labor and Employment, Minimum Wage, Nursing Breaks, Patient Protection and Affordable Care Act