New Jersey Wage and Hour Attorneys

Published on: December 3, 2019

Third Circuit Court of Appeals Rules that Some Third-Party Payments to Employees are Properly Included in the Calculation of Overtime Rates

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In the case of Secretary of United States Department of Labor vs. Bristol Excavating, Inc., the United States Court of Appeals for the Third Circuit, recently issued an important, precedential opinion on when payments by third-parties need to be included by employers in the calculation of their employees’ overtime pay rates.

Bristol Excavating, Inc. (Bristol) is a small excavation contractor. Bristol was a subcontract for Talisman Energy, Inc., a large producer of natural gas. Bristol provided Talisman with equipment, labor and services at Talisman’s drilling sites. Bristol’s employees often worked more than 40 hours per week, and Bristol paid them “overtime,” or one and a half times the regular hourly rate which Bristol normally paid them (“time and a half”) for all the hours they worked over 40 hours in one week.

Talisman offered workers at its sites – not just its own employees – separate bonuses rewarding them for safety, efficiency and productively measured by completion of work. Bristol’s employees asked Bristol if they could participate. Bristol agreed, and also agreed to do the administrative work. This administrative work included paying the bonuses through Bristol’s payroll, and taking out all applicable tax withholdings. Bristol did not include these bonuses in its calculation for overtime pay for its employees because it was not Bristol’s money with which the employees were being paid.

Published on: November 19, 2019

Equal Pay Act

by Pauline M.K. Young

Refugees, Economic Migrants

Governor Murphy signed New Jersey’s Equal Pay Act into law in 2018. The NJEPA takes a necessary step in making pay discrepancies in the workplace more transparent with the hopes that this will address the pay differential between white men minorities, and women. Essentially, it bars any penalty to any employee for requesting or disclosing information regarding any employee’s job title, rate of compensation, benefits, race, gender, ethnicity, or other protected characteristic when the purpose of the inquiry or disclosure to investigate the possibility of discriminatory treatment. (While the NJEPA was originally intended to address inequitable pay for women, it was expanded to cover all protected classes of people.)

This allows for employees to obtain information which previously (and even now) is largely safeguarded by employers as “private” in order to determine whether they are being discriminated against based upon a protected classification. Any employer “policy” which forbids discussing compensation in the workplace could be considered void by the law.

The NJEPA amended New Jersey’s Laws Against Discrimination to enable the use of the protections of that statute. The NJEPA also specifically makes it unlawful to pay employees in protected classes a different rate of compensation when performing substantially similar work considering skill, effort, and responsibilities. Differentials may still exist when based on seniority, merit, education, productivity, experience, and other legitimate business reasons. The Act also allows expands upon the LAD’s typical 2-year statute of limitations by setting forth that limitation period restarts each time the employee receives unequal compensation resulting from a discriminatory decision or practice. The employee may also recover up to 6 years of back pay as a result of a violation by the employer. Additionally, the employee may receive treble damages – meaning that they may recover three times the monetary damages awarded as a result of the pay discrepancy.

Published on: October 7, 2019

Third Circuit Rules Adult Dancers Are Employees Entitled to Overtime and Minimum Wage Protections

by Maurice W. McLaughlin

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The Federal Fair Labor Standards Act requires that employers, including New Jersey employers, pay their non-exempt employees minimum wage and overtime (the vast majority of employees are not subject to an exemptions; the major exemptions are for executive, administrative and professional employees, and outside sales). Independent contractors, however, are not protected by the Fair Labor Standards Act. Claims of misclassification of employees have recently led to significant amounts of litigation.

The United States Third Circuit Court of Appeals recently issued an opinion on misclassification of workers in the case of Priya Verma v. 3001 Castor, Inc., which found that adult dancers were employees entitled to the protection of the Federal Fair Labor Standards Act. While the case arose in Pennsylvania Federal Court, the Third Circuit rules on appeals from federal courts in New Jersey, Pennsylvania, Delaware and the United States Virgin Islands, so it’s decisions determine how federal law, including the Fair Labor Standards Act, will be applied are binding in New Jersey.

Background

Published on: September 26, 2019

Third Circuit Court of Appeals Defines Standard for Finding “Willful” Violations of the Fair Labor Standards Act

by Maurice W. McLaughlin

Willful Violations Under The Fair Labor Standards Act

352099_construction_3-002-300x225 The Federal Fair Labor Standards Act establishes rates of minimum wage and overtime pay which employers must pay to their employees. Employees successfully suing their employers for violations of these requirements can recover their lost wages, and their employers will be required to pay their attorneys fees and litigation costs. The Fair Labor Standards Act provides that willful violations of these requirements will result in double damages – ie., the employer will be required pay the employee twice the amount of wages or overtime it did not pay. A willful violation also extends the statute of limitations for suing from two years to three.

Willfulness: The Question Facing the Third Circuit

Published on: December 20, 2016

Fair Labor Standards Act Regulations

by Maurice W. McLaughlin

Background: New Regulations Adopted

In 2014 the United State Department of Labor issued new regulations governing overtime exemptions. The regulations did not change the main overtime exemptions, but it did raise the salary threshold for them to apply.

Existing Exemptions

Published on: December 13, 2016

Changes to the Fair Labor Standards Act

by Pauline M.K. Young

dollar-1889027__340 The Fair Labor Standards Act (“FLSA”) is a federal statute enacted in 1938 with the goal of setting national standards for employees, including minimum wage, overtime requirements, child labor restrictions, and other protections. Our employment attorneys represent management and employers in litigation under FLSA violations and litigation about its state counterpart, the New Jersey Wage and Hour law. Our

Many changes have been made to the FLSA over the years to try to keep up with the changes in inflation the socioeconomic climate of the country. On March 13, 2014, President Obama published a Presidential Memorandum directing the DOL to review and revise the regulations protecting workers through minimum wage and overtime standards. In May of 2016, the United States Department of Labor (“DOL”) responded by updating the FLSA to extend overtime pay protections and minimum salaries – which would mark the first significant change in 40 years.

The rule sets a minimum salary requirement of $47,476 for salaried workers – which more than doubled the prior minimum of $23,660. Generally, employees are paid on an hourly basis and then paid one and a half times their regular hourly pay for all hours worked in excess of 40 hours per week. However, certain employees are “exempt” from the hourly pay and overtime requirements. Some of the most comment exemptions are for: professionals (lawyers, accountants, engineers, etc.) executives or administrators (managers, officers, etc.), and commissioned salespeople. For employees not being paid on commission, these exempt workers are generally paid an annual salary as opposed to an hourly wage.