Nyemaster Goode, P.C.

Nyemaster Goode Top 10 List: No. 5 – Trends in Wage and Hour Litigation

By Frank Harty

As 2014 approaches, we can predict the coming trends in wage and hour litigation. This list of “hot spots” can serve as a shorthand audit checklist to identify potential areas of risk:

The seamless workday. Non-exempt employees who “log in from home” or “empty inboxes” outside of regular hours may be engaging in compensable work.

Interns. Any unpaid internship will be closely scrutinized by the Department of Labor and the courts.

Road warriors. Plaintiffs’ lawyers will continue to probe the frontiers of the outside sales exemption.

Computer geeks. The classification of computer professionals as exempt or non-exempt will continue to be a potential risk.

Lunch breaks. The Department of Labor auditors are looking for employees who are not paid for working lunches. Lunch breaks that are interrupted can be as risky as an employee eating at their workstation.

Donning and doffing. There is a virtual cottage industry of plaintiffs’ lawyers pursuing donning and doffing claims. Manufacturers and processors will continue to be nagged by these claims.

Telecommuting. As more non-exempt employees work from home or in “virtual offices” there will be issues surrounding the true parameters of the paid work day.

The regular rate. Employers will have to remain vigilant when determining whether bonus and other additional payments must be included in the regular rate for purposes of calculating overtime.

Working off the clock. In the wake of an ongoing “jobless recovery” there will be continued pressure to increase productivity. Any supervisor who knowingly tolerates an employee working “off the clock” will create a risk of FLSA exposure.


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