Wyatt Employment Law Report

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Kentucky Court of Appeals Holds that Plaintiffs Have the Burden of Proving Missed Meal Breaks

By Mitzi D. Wyrick

In Hisle, et al. v. Correctcare – Integrated Health, Inc., Ky. App. (June 12, 2015), the Kentucky Court of Appeals addressed the issue of what test applies when employees claim to have missed meal breaks.  Plaintiffs, who were nurses and medication aids employed at a prison, sued under the Kentucky wage and hour laws alleging that they were denied rest and meal breaks and were therefore entitled to additional compensation.  PB&JPlaintiffs based their claim on the fact that they had to carry or monitor a handheld two-way radio while working inside the prison facilities, including during their 30-minute lunch breaks, which were automatically deducted from their time.

The trial court held that merely monitoring the radio during meal breaks did not amount to a denial of a meal break if employees could comfortably and adequately spend their mealtime and their time was not devoted primarily to official responsibilities.  At trial, the plaintiffs claimed that Continue reading

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House Passes Comp Time Law

 By Edwin S. Hopson

On May 8, 2013, the U.S. House of Representatives passed the Working Families Flexibility Act of 2013 (H.R. 1406), a law that would amend the Fair Labor Standards Act of 1938 to give employees the opportunity to accrue paid time off or “comp time” for working overtime hours in lieu of receiving overtime pay.

The bill provides as follows:

  • Allows employers to offer employees a choice between cash wages and accruing comp time for overtime hours worked during a workweek.
  • Protects employees by requiring the employer and the employee to complete a written agreement to use comp time, entered into knowingly and voluntarily by the employee. If the employee is represented by a labor organization, the agreement to take comp time must be negotiated as part of the union contract.
  • Retains all existing employee protections in current law, including how overtime pay is calculated.
  • Allows employees to accrue up to 160 hours of comp time each year.  An employer would be required to pay cash wages for any unused time at the end of the year. Workers would be free to cash out their accrued comp time whenever they choose to do so.
  • Requires the nonpartisan Government Accountability Office to report to Congress on the extent private-sector employers and employees are using comp time, and the number of complaints filed with and enforcement actions taken by the U.S. Department of Labor.

 The measure is expected to face stiff opposition in the Senate.

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Labor Department Proposes to Eliminate Exemptions for In-Home Companionship Workers Not Directly Employed by a Family

By Edwin S. Hopson

The U.S. Department of Labor recently announced that it was filing a notice of proposed rule-making regarding its regulations pertaining to the exemption for companionship services and live-in domestic services.

Section 13(a)(15) of the Fair Labor Standards Act (FLSA) exempts from the minimum wage and overtime provisions domestic service employees who are employed “to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary).” Section 13(b)(21) of the law also exempts from the overtime provision any employee employed “in domestic service in a household and who resides in such household.”

These FLSA exemptions, enacted in 1974, were later complimented by Labor Department-promulgated regulations in 1975.  Those regulations have not been amended or changed since 1975.  Since that time, the Department notes that there have been “significant changes in the home health care industry” and “workers who today provide in-home care to individuals are performing duties and working in circumstances that were not envisioned when the companionship services regulations were promulgated.” It also noted that the “number of workers providing these services has also greatly increased, and a significant number of these workers are being excluded from the minimum wage and overtime protections of the FLSA under the companionship services exemption.” Therefore, the Labor Department decided to reduce the scope of the exemption by amending its regulations to revise the definitions of “domestic service employment” and “companionship services.” The Department also proposed to clarify the type of activities and duties that may be considered “incidental” to the provision of companionship services.

Additionally, the Department proposed to amend the record-keeping requirements for live-in domestic workers. Finally, the Department proposed to amend the regulation pertaining to employment by a third party of companions and live-in domestic workers.

These changes would continue to allow the individual, family, or household directly employing the worker’s services to apply the companionship and live-in exemptions but would deny all third party employers of such workers the use of the exemptions.

Comments on the proposed changes to the regulations must be received by the Labor Department on or before February 27, 2012.

 The notice of proposed rule-making may be viewed at:


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Tax Issues Associated with Misclassification of Persons as Independent Contractors

By George J. Miller

When the Wage and Hour Division of the U.S. Department of Labor or a state department of labor determines that an employer has misclassified employees as independent contractors and has failed to pay them minimum wage or overtime pay required by law, the remedy at the administrative level typically has been for the employer to pay the affected employees back pay sufficient to make up for the lost wages.  Of course, an employer which has misclassified employees in this fashion has not been withholding federal, state, or local income taxes, or FICA, and has not been remitting those taxes (including the employer’s share of FICA) or filing quarterly payroll tax returns with the government regarding the misclassified workers. 

 A lingering, worrisome question in settling such disputes with the Wage and Hour Division or a state department of labor has been whether the employer will be reported to state or federal internal revenue agencies and will be required to pay taxes, penalties, and interest in addition to back pay.  The specter of facing the tax man in such matters became more real yesterday, when U.S. Secretary of Labor Hilda Solis announced that she has signed memoranda of understanding (MOU’s) with the Internal Revenue Service and the state labor commissioners and other state agencies in the states of Connecticut, Maryland, Massachusetts, Minnesota, Missouri, Utah and Washington, pledging greater cooperation to share information in an effort to protect employees from being improperly classified as independent contractors.   Continue reading

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Proposed Rule Would Make Significant Changes to the H-2B Visa Program

By Allison Grogan

The U.S. Department of Labor’s Employment and Training Administration and its Wage and Hour Division have issued a notice of proposed rulemaking that would, if adopted, make major changes to the H-2B temporary nonagricultural worker visa program.  According to the U.S. Department of Labor (the “Department), the proposed rule would “ensure that U.S. workers receive the same level of protections and benefits as temporary foreign workers recruited under the H-2B program, and … provide better access for employers with legitimate labor needs.”  ETA News Release, March 17, 2011. Continue reading

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Supreme Court Decides FLSA Anti-Retaliation Provision Includes Oral Complaints

By Edwin S. Hopson

The U.S. Supreme Court on March 22, 2011,  issued its decision in Kasten v. Saint Gobain Performance Plastics Corp., 563 U.S. ____, No. 09-834 (2011) holding, in a 6 to 2 decision authored by Justice Breyer, that under the Fair Labor Standards Act (FLSA) anti-retaliation provision an oral complaint to a supervisor comes within the scope of 29 U. S. C. §215(a)(3), which forbids employers from discharging “any employee because such employee has filed any complaint” claiming a violation of the FLSA.  Kasten had lost in the district and appellate courts which had found that the term “filed” required a written complaint.  Justice Breyer, in a decision joined in by Chief Justice Roberts, and Justices Kennedy, Ginsburg, Alito and Sotomayor (Justice Kagan took not part in the case), noted that the statutory language must be viewed in context and with the purpose of the law in mind.  He also pointed out that a number of agencies allow oral “filings” and that the U.S. Department of Labor’s consistent interpretation of the provision included oral complaints as well as written ones.   The issue of whether the complaint must be filed with the government in order to come within the anti-retaliation provision was expressly not decided by the court.

In dissent, Justice Scalia, joined by Justice Thomas, argued, among other things, that the complaint must be in writing to be consistence with the term “complaint” as used elsewhere in the FLSA.  He also contends that it made no sense to decide the “oral versus written” question while side-stepping the question of who the addressee of the complaint should be, stating:  “[i]t presumably does not include a complaint to Judge Judy.” Slip opinion, page 8.

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U.S. Department of Labor’s New Website Features

By Mitzi D. Wyrick

What does your Department of Labor (“DOL”) company profile look like? Did you know that the DOL has recently made its online enforcement database searchable and available to the public? In an effort at greater transparency, the DOL has posted its compliance and enforcement audit results online. Results are searchable in a variety of ways, including by zip code, by company, by state, or by industry sector. This means a company’s wage and hour, OSHA, OFCCP, and EBSA audit results are now available to attorneys, unions, and even other agencies, such as the EEOC. The database is available at: http://ogesdw.dol.gov/index.php