The wage and hour landscape in the United States is constantly changing and fraught with legal landmines. Employers that inadvertently violate the Fair Labor Standards Act (“FLSA”), or any of the disparate state, county, and city wage and hour laws that apply to their business operations, could find themselves the target of a wage and hour class action or collective action or an investigation by the U.S. Department of Labor’s Wage and Hour Division or a state agency. No industry is immune from these lawsuits or investigations.

To make matters worse, the COVID-19 pandemic has introduced new possibilities for wage and hour violations by employers grappling with remote workforces,  layoffs, furloughs, and salary or wage reductions in their efforts to keep their businesses operating. As a result, wage and hour litigation will likely remain a source of significant exposure to employers well into the future.

And wage and hour litigation itself has become increasingly complex. While there are simple, black-and-white answers to some wage and hour questions, there are also a great many gray areas surrounding such issues as whether an overtime exemption applies to certain employees, who qualifies as an employee rather than an independent contractor, and which activities constitute compensable work.

The Wage and Hour practice group at Epstein Becker Green has some of the most respected litigators and counselors in the field. With decades of combined experience and an exceptional breadth and depth of knowledge, skill, and creativity, we can effectively assist employers in three primary areas: compliance, litigation, and training. Our team includes members who have served in senior leadership and legal roles at the U.S. Department of Labor, bringing a distinctive perspective to these issues for the benefit of our clients.

Compliance

Attorneys in our Wage and Hour practice group work with employers nationwide to help them achieve their business objectives in compliance with federal, state, and local wage and hour laws. They aim to help clients avoid class actions and collective actions, as well as government investigations, by assisting those clients in:

  • properly classifying employees as exempt or nonexempt from the federal, state, and local minimum wage and overtime requirements;
  • properly classifying a worker as either an employee or an independent contractor;
  • recognizing what is compensable working time, and what is not;
  • evaluating payroll, salary basis, timekeeping, and recordkeeping requirements and issues;
  • drafting policies and procedures for implementing new technology-driven solutions for time keeping, scheduling, and training;
  • properly drafting work-from-home policies to ensure that workers are adequately compensated;
  • understanding how to calculate the regular rate that is used to determine any overtime compensation due; and
  • identifying records and notices to employees to be kept in order to evidence compliance with the law.

Our attorneys assist by conducting compliance audits of all aspects of a company's adherence to the requirements of the FLSA and applicable state and local wage laws. These audits may be undertaken as a result of a lawsuit, an agency investigation, due diligence in a transactional setting, or at an employer's own initiative to conduct an internal self-audit. We also perform audits for contractors with the government who may be debarred from doing future business because of wage and hour violations.

In addition, attorneys in our Wage and Hour practice group provide day-to-day advice and counsel on all facets of wage and hour issues—from questions relating to a single employee to issues concerning a global workforce. Clients turn to us for guidance on such issues as exempt/non-exempt classification, permissible deductions, measuring working time, regular rate calculations for premium overtime pay, determining overtime for non-exempt employees working remotely, state meal and rest period requirements, pay for tipped employees, and the classification of gig-economy workers.

Litigation

When an employer is sued under federal or state wage and hour laws, attorneys in our Wage and Hour practice group are among the most qualified and experienced to represent the employer. Our seasoned wage and hour litigators can aggressively defend any wage and hour lawsuit, whether it involves exemptions, working time, wage calculations, meal and rest period, or other wage and hour issues. Our attorneys also have the knowledge and skills to provide the client with a candid assessment of the case and to negotiate a favorable settlement, when appropriate.

Epstein Becker Green has represented employers in collective actions or wage and hour class actions, with classes ranging in size from a dozen employees to 50,000 employees. In addition to the standard issues in such a case, other issues that arise in these matters include whether a court should certify a class, who should be part of the proposed class, and how discovery should be conducted. Each of these issues can impact the employer's potential liability in significant ways.

As a thought leader in the wage and hour law arena, Epstein Becker Green is able to approach each case from a strategic standpoint, balancing particular laws at issue with the practical needs of a client’s business.

Representative Cases

Some examples of recent successes that Epstein Becker Green has achieved for clients in wage and hour litigation include:

  • Convincing both a trial court and an appellate court in California that “joint employers” are not vicariously liable for each other’s alleged meal period violations.
  • Obtaining the denial of a complainant’s appeal and the affirmance of a referee’s decision to deny the complainant’s claim for non-payment of unused vacation time at separation.
  • Convincing a trial court to grant our medical transportation client’s motion to strike California Private Attorneys General Act claims on the grounds that the trial would be unmanageable due to the need to address individualized issues; accordingly, instead of a lengthy trial involving thousands of employees and substantial potential exposure, our client will try a single-plaintiff case with limited exposure.
  • Bringing a declaratory judgment action in federal court in Texas challenging a U.S. Department of Labor interpretation of its tip credit regulations, leading the agency to withdraw the challenged interpretation.
  • Obtaining the denial of a motion for class certification in a case involving property inspectors who claimed that an insurance company misclassified them as independent contractors and didn’t reimburse them for business expenses, among other things.
  • Succeeding in getting the U.S. Court of Appeals for the Second Circuit to affirm a New York federal judge’s ruling that “black car” drivers in New York City were independent contractors, not employees.
  • Obtaining a denial of class certification in a lawsuit, where the wage claim was ultimately confined to a single plaintiff and settled for half the claim of the individual.
  • Obtaining an injunction prohibiting plaintiffs’ lawyers from soliciting class members for an FLSA collective action through billboards and radio commercials.
  • Succeeding in getting the court to limit discovery to the opt-in plaintiffs and direct settlement negotiations before allowing plaintiffs' counsel to conduct class-wide discovery.
  • Obtaining summary judgment in the U.S. District Court for the Southern District of Florida, affirmed by the Tenth Circuit, in a collective action minimum wage lawsuit filed by 53 skycaps against an airline contractor seeking to invalidate a tip credit.
  • Obtaining a partial judgment in an overtime collective action in which plaintiff bus drivers alleged that they were entitled to overtime, and the defendant argued successfully that the vast majority of its drivers were covered by the Motor Carrier exemption.
  • Obtaining a denial of class certification in a lawsuit regarding the payment of prevailing wages and benefits to a proposed class of HVAC technicians who worked on various public works projects throughout New York State.
  • Getting FLSA collective action claims dismissed with prejudice in a lawsuit filed in the U.S. District Court for the Southern District of New York regarding an owner of a nationwide group of apartment communities.
  • Settling on favorable terms numerous government audits involving prevailing wages before they became lawsuits.
  • Obtaining summary judgment for a technology company in an overtime lawsuit in the U.S. District Court for the Southern District of Texas, where an ex-employee challenged his classification as exempt under the administrative exemption.

Training

The cost of violating federal or state wage and hour laws can be high. To avoid liability and limit claims, we have developed innovative techniques for our clients. Among our many services, attorneys in Epstein Becker Green’s Wage and Hour practice group offer wage and hour training to human resources personnel, in-house counsel, and managers.

In addition, our attorneys have authored and edited numerous publications on the FLSA and state law, including the following four books: The Employer's Guide to The Fair Labor Standards Act; The Fair Labor Standards Act Handbook for States, Local Governments and Schools; FLSA Exemption Handbook; and Public Employer's Guide to FLSA Employee Classification. Please visit Thomson Reuters for more information about these publications.