Category Archive: Employment Law

Jan 04

New York Court of Appeals Rejects Discrimination Claims for Mistaken Perception of Alcoholism

By: Samantha Guido

In a recent opinion, Makinen v. City of New York,[i] the New York Court of Appeals held that a “mistaken perception of alcoholism” is not a disability under the New York City Human Rights Law (“NYCHRL”).[ii]  In this case, the plaintiffs, both police officers employed by the New York Police Department (“NYPD”), were falsely accused of abusing alcohol by their former partners and were referred to NYPD’s Counseling Services Unit.[iii]  Plaintiff Nardini was diagnosed as a sufferer of alcohol abuse and Plaintiff Makinen was diagnosed with alcohol dependence.[iv]  Both plaintiffs accepted treatment after threats of disciplinary action,[v] however, the Court recognized that neither plaintiff was an alcoholic.[vi]  The plaintiffs argued that the defendant, the NYPD, discriminated against them by “subjecting them to adverse employment actions based on the illegitimately perceived disability of alcohol dependence and/or abuse.”[vii]  The Court rejected this argument and held that the plaintiffs did not have a disability within the meaning of the NYCHRL.[viii]

This holding was based solely on the Court of Appeals’ interpretation of sections 8-102(16)(c) and 8-107(1)(a) of the New York City Administrative Code.[ix]  In particular, the case depended upon whether a mistaken perception of alcoholism constituted a disability under the Code.[x] Section 8-102(16)(c), says the Court, is unambiguous and therefore is “only open to one reasonable interpretation: the disability of alcoholism ‘shall only apply to a person who (1) is recovering or has recovered and (2) is currently is free of such abuse.’”[xi]

The case required the Court to interpret the Administrative Code, which contains the NYCHRL.  To do this, the Court needed to look to the Local Civil Rights Restoration Act of 2005 (“Restoration Act”).  The Restoration Act amended the NYCHRL because the City Council felt that the NYCHRL was being construed too narrowly and wanted to ensure that the NYCHRL is protecting those who were being discriminated against.[xii]  The Restoration Act’s purpose was to “‘clarify the scope of [NYCHRL]’” and provided two rules of construction for the NYCHRL that directed the court to liberally construe the NYCHRL.[xiii] However, as the dissenting opinion observed, the majority contravened the principles of construction as mandated by the Restoration Act and neglected to include a mistaken perception of alcoholism within the definition of a disability covered by the NYCHRL.[xiv]

It seems possible that the City Council will consider amending the definition of a disability within the Administrative Code to include a mistaken perception of alcoholism. The City Council wants, and has expressly stated, that the Human Rights Law was to be construed liberally in favor of discriminated plaintiffs.[xv] The majority of the Court of Appeals understood that it could not rewrite the narrow definition of disability provided for in the Administrative Code.[xvi]  Instead, the City Council should amend the definition to achieve its goal of protecting plaintiffs who have experienced discrimination.

[i] 2017 N.Y. Slip Op. 07208, 2017 WL 4621717 (N.Y., Oct. 17, 2017) (no pages provided).

[ii] Id.

[iii] Id.

[iv] Id.

[v] Makinen v. City of New York, 2017 N.Y. Slip Op. 07208, 2017 WL 4621717 (N.Y., Oct. 17, 2017) (no pages provided).

[vi] Id.

[vii] Id.

[viii] Id.

[ix] Id.

[x] Makinen v. City of New York, 2017 N.Y. Slip Op. 07208, 2017 WL 4621717 (N.Y., Oct. 17, 2017) (no pages provided).

[xi] Id.

[xii] Id.

[xiii] Id.

[xiv] Id.

[xv] Makinen v. City of New York, 2017 N.Y. Slip Op. 07208, 2017 WL 4621717 (N.Y., Oct. 17, 2017) (no pages provided).

[xvi] Id.

Jan 04

Second Circuit Affirms Flexible Analysis for Determining “Employee” Status for Unpaid Interns Under the FLSA

By: Samuel Wiles

In December 2017, the Second Circuit affirmed that unpaid interns, in some circumstances, are not “employees” under the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”) and were thus not entitled to receive the minimum wage.[i]

In Wang v. The Hearst Corp., the Court of Appeals found that the Hearst Corporation (“Hearst”) furnished bona fide, for-credit internships and did not exploit student-interns to avoid hiring and compensating entry-level employees.[ii]  Hearst offered unpaid internships across its various print magazines and each of the plaintiffs interned with Hearst during the semester, the summer, or between graduation and beginning graduate school.[iii]  The plaintiffs received approval for course credit before starting their internships, although not every plaintiff ultimately received the credit.[iv]  Some testified that their internship responsibilities included “tasks related to their professional pursuits” through which they “gained valuable knowledge and skills.”[v]  However, some interns complained that the tasks were “menial and repetitive” and they did not “receive close supervision or guidance” and received “little formal training.”[vi]

Under the FLSA, an “employee” is an “individual employed by an employer,” but not every individual who performs a service for an employer, like an unpaid intern, is an “employee.”[vii]  The analysis depends upon the “economic reality” of the relationship between the unpaid intern and the employer.[viii]  To aide in analyzing whether an unpaid intern is an “employee,” the court recognized the “primary beneficiary” test from its previous ruling in Glatt.[ix]  The test utilizes seven “non-exhaustive considerations specific to the contest of unpaid internships,” each of which must be considered by weighing and balancing the totality of the circumstances and none of which is dispositive to the ultimate determination.[x]  Courts applying these factors acknowledge that internships may directly benefit the employer “so long as the intern receives identifiable educational or vocational benefits in return.”[xi]

The court then proceeded to analyze the facts in relation to the factors; favoring the plaintiffs on some and Hearst on others.[xii]  Ultimately, the Court did not grant summary judgment and concluded that the interns were not “employees.”[xiii]  The Court ruled that the “employee” status was a matter of law, which permits district courts to strike a balance on the totality of the circumstances.[xiv]  The touchstone, the court noted, is that district courts may rule on Glatt questions if it can “weigh the . . . factors on the basis of facts that are not in dispute.”[xv]

In reaffirming the flexible Glatt test, the Second Circuit permits employers to continue offering unpaid internships.  However, with the flexible and factual nature of the analysis, cases can easily be argued either way.  This ambiguity introduces a risk of litigation for employers who choose to hire unpaid interns. Employers who hire unpaid interns should adopt internal standards that clearly inform applicants or interns that the position is not an indication or guarantee of future employment to comply with the Second Circuit’s factor analysis.


[i] Wang v. The Hearst Corp., 2017 WL 6062241 (2d Cir. Dec. 8, 2017). The Southern District denied the plaintiffs’ summary judgment motion, although the Second Circuit initially vacated the decision due to its almost concurrent ruling in Glatt v. Fox Searchlight Pictures. Wang v. Hearst Corp., 617 F.App’x 35, 37 (2d Cir. 2015).

[ii] Wang, 2017 WL 6062241 at *1.

[iii] Id.

[iv] Id.

[v] Id.

[vi] Id. at *2.

[vii] Wang, 2017 WL 6062241 at *2.

[viii] Id.

[ix] Id. The “primary beneficiary” analysis is a subjective and highly factual analysis that focuses on whether the employer or the intern “is the ‘primary beneficiary’ of the relationship. Michael A. Hacker, Permitted to Suffer for Experience: Second Circuit Uses “Primary Beneficiary” Test to Determine Whether Unpaid Interns Are Employees Under the FLSA in Glatt v. Fox Searchlight Pictures, Inc., 57 B.C. L. Rev. E-Supplement 67, 69 (2016).  In adopting this analysis, the Second Circuit in Glatt rejected the Department of Labor’s six-part test because it was “too rigid for” the court’s precedent. Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 536 (2d Cir. 2015).

[x] Under Glatt, the considerations are: (1) “The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa; (2) The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions; (3) The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit; (4) The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar; (5) The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning; (6) The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern; and (7) The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.” Wang, 2017 WL 6062241 at *3 (citing Glatt, 811 F.3d at 536–37).

[xi] Wang, 2017 WL 6062241 at *3.

[xii] Id. at *3—*4.

[xiii] Id. at *5.

[xiv] Id.

[xv] Id.

Oct 18

Got Breastmilk? Lactation a “Related Medical Condition” Under the Pregnancy Discrimination Act of 1978

By: Natalie D. Russell

In 2015, nearly four million children were born;[1] more than half of those children were born to mothers in the labor force.[2] These mothers do not resign during or after pregnancy.  Instead they work, seeking accommodations as needed.  During and after pregnancy, women are at risk of gestational hypertension, preeclampsia, post-partum hemorrhage,[3] post-partum depression and infections, to name a few medical conditions.  Prior to the Pregnancy Discrimination Act of 1978 (“PDA”), women were not offered protection against workplace discrimination for these pregnancy-related medical conditions.  The PDA amends Title VII to prohibit discrimination on the basis of pregnancy.[4] The PDA expands the definition of “because of sex” and “on the basis of sex” to include “on the basis of pregnancy, childbirth, or related medical conditions.”  Unfortunately, the PDA fails to give employers guidance on what conditions are covered under the expansive phrase “or related medical conditions.”  Specifically, many new mothers face a medical condition—lactation—that employers may dismiss as a choice rather than a medical condition.

As a matter of first impression, in E.E.O.C. v. Houston Funding II, Ltd.,[5] the Fifth Circuit held that lactation is a “related medical condition” under the PDA.[6] The Court relied on the plain meaning of “medical condition,” defined in the McGraw–Hill Concise Dictionary of Modern Medicine as “[a]ny condition—e.g., physiological, mental, or psychologic conditions or disorders.”[7] The broad dictionary definition of “medical condition” permitted the Court to justifiably conclude that lactation is a medical condition protected under the PDA.  Thus, any discrimination based on a woman’s need to express milk is a violation of the PDA.[8]

Upon returning to work, a new mother may face an employer that provides unreasonable medical accommodations.  Recently, the Eleventh Circuit in Hicks v. City of Tuscaloosa [9] dealt with the issue of whether breastfeeding is a medical condition protected under the PDA.[10] Hicks, a police officer for the city of Tuscaloosa, returned to work after giving birth and within two weeks she was demoted to a position that offered less pay, required her to work on days that she previously held off, and did not grant her the benefit of a vehicle.[11] After the demotion, Hicks requested a workplace accommodation that would relieve the bullet proof vest requirement thereby allowing her to express milk while on duty.[12] This accommodation was not uncommon, as other employees with similar work restrictions were granted the accommodation of working desk duty.[13] Unfortunately, Hicks was not granted an accommodation but was told that she had two choices: (1) not wear the bullet proof vest, or (2) wear a custom-made vest.[14] Hicks did not consider these options safe, especially the custom-made vest that was known to be ill-fitting and less protective.[15] She resigned immediately.[16] The Eleventh Circuit held that this lack of an accommodation constituted constructive discharge and a violation of Title VII.[17] Although an employer does not have to provide special accommodations to breastfeeding mothers, an employer must afford them the same accommodations that are offered to similarly situated employees.[18]

New moms are not expecting their employer to construct a nursing room; however, they are holding employers accountable for not acknowledging that lactation is a “related medical condition.”  It is not a choice; it is a gender-specific condition that must be protected from unlawful discrimination.  It appears the courts are moving in the right direction in protecting women’s right to not be discriminated against because they are lactating.  A woman should not have to choose between breastfeeding her newborn and employment.  The protection of the lactation is a step in the right direction.  As case law continues to develop, women across America are rooting for expanded rights for women as they balance a new baby and work.


[1] Nat’l Ctr. for Health Statistics, Ctrs. for Disease Control and Prevention, National Vital Statistics Report 1 (2017).

[2] According to the United States Census Bureau, about 63% of the female labor force gave birth in 2016. See 2016 American Community Survey 1-Year Estimates, U.S. Census Bureau, (last visited Oct. 8, 2017).

[3] Pregnancy Complications, CDC (June 17, 2016),

[4] 42 U.S.C. § 2000e.

[5] 717 F.3d 425 (5th Cir. 2013).

[6] Id. at 428.

[7] Id.

[8] Id. at 430.

[9] No. 16-13003, 2017 WL 3910426 (11th Cir. Sept. 7, 2017).

[10] Id. at *4.

[11] Id. at *1.

[12] Id. at *2.

[13] Id. at *2.

[14] Id. at *2.


[16] Id.

[17] Id. at *3-4.

[18] Id. at *5.

Jan 30

Minor Leaguers, Minor Wages, Major Problems

By Joseph Gentile.

Major League Baseball (“MLB”) and the Major League Baseball Players Association (“MLBPA”) recently came to terms on a new collective bargaining agreement (“CBA”), which will last through the 2021 MLB season. This means that, by the end of the next CBA, the MLB will have gone twenty-six consecutive seasons without a work stoppage.

The MLBPA represents players designated on the forty-man major league roster; so what does that mean for Minor League Baseball players who fell short of making the forty-man roster? Another year of making less than minimum wage.

Minor Leaguers are not entitled to minimum wage or overtime because of an exemption in Section 213 of the FLSA. It provides that minimum wage and overtime provisions do not apply to employees of an “amusement or recreational establishment” if the establishment does not operate more than seven months per year, or if the employer can prove that total revenue in one-half of the preceding year was less than one-third of the total revenue in the other half of the same preceding year.

At the lowest level of the Minor Leagues, players earn wages that amount to less than $4 per hour if players received their regular hourly wage for the first forty hours of the week and time-and-a-half for the remaining 20 hours. At the highest level of the Minor Leagues, players earn a salary that puts them barely above minimum wage.

Unionization is one possible way to combat this problem, but asking minor leaguers to pay union dues out of their already-miniscule salaries is asking a lot. Additionally, the ultimate goal of these minor leaguers is to get out of the Minor Leagues as quickly as possible, which makes it difficult to gain momentum in the effort to unionize Minor Leagues.

There have been efforts to unionize the Minor Leagues in the past, but no real progress was made. The only hope would be fore a large union to come in and organize, but the players are more likely to want to remain quiet while trying to advance to the Major Leagues. If a Major League team were to promote an advocate for Minor League unionization, it would surely cause more distractions than the Major League team may be willing to handle.

It seems as if Minor Leaguers will continue to earn less than minimum wage until MLB owners are ready to step in, which, unfortunately, does not seem likely to happen soon.

Nov 16

NLRB Adjusts Reimbursement Calculation for Unlawfully Discharged Employees

By Natalie Russell.

In a recent decision issued by the National Labor Relations Board (the “Board”), King Soopers, Inc. and Wendy Geaslin, persons who were wrongfully terminated may receive full reimbursement of search-for-work and interim employment expenses. Case 27-CA-129598 (2016). For over 80 years, the Board has awarded search-for-work damages. However, the Board’s traditional calculation of these damages failed to make a dischargee whole because the search-for-work damages were considered offsets to a dischargee’s interim earnings. This meant that if a dischargee spent more money searching and relocating for an interim job than they actually earned at that job, they would only be repaid up to the amount of the interim wages they earned. Id. at 5. In King Soopers, Inc., the Board found that the traditional approach, which limited the damages, not only “fail[ed] to make victims of unlawful discrimination whole . . . [but also] discourage[d] discriminatees in their job search efforts.” Id. at 5.

Faced with the challenge of balancing fairness to the wrongfully terminated with the authority granted to the Board through Section 10(c) of the National Labor Relations Act (the “Act”), the Board concluded that it has “ ‘broad discretionary’ authority to order remedies that will ‘effectuate policies’ of the Act.” Id. at 3 (quoting NLRB v. J.H. RutterRex Mfg., 396 U.S. 258, 262–63 (1963)). The Board not only has a duty to the wrongfully terminated, but also must create deterrents so that employers are discouraged from engaging in unlawful and discriminatory conduct. Id. at 3. By granting make-whole relief in the form of full reimbursement of search-for-work and interim-employment damages, the Board has fulfilled its duty.

The story of Juana Perez is a primary example of the positive impact make-whole relief will have on the wrongfully terminated. Ms. Perez worked at a location, earning $1,000 per month prior to her unlawful discharge. In seeking interim employment, Ms. Perez spent $6,000 on relocation costs, training, and job searching. She ultimately found employment, earning $750 per month for two months. Under the Board’s traditional reimbursement approach, Ms. Perez would receive only $1,500 because the search-for-work expenses would only be offset against the interim earnings. Id. at 5. However, under the new make-whole formula, Ms. Perez would be reimbursed for the full $6,000 of search-for-work expenses, regardless of how much she earned from her interim employment.

By providing full reimbursement of search-for-work and interim employment benefits, the Board assures that the wrongfully terminated employees are made whole.

May 09

Transgender Employee Rights

By Natalie Russell.

Lesbian Gay Bisexual Transgender (“LGBT”) workers are seeing progress in the protection of transgender employee rights by the Equal Employment Opportunity Commission (“EEOC”). Title VII of the Civil Rights Act of 1964 protects employees against workplace discrimination “based on . . . sex.” Traditionally, however, the term “sex” was defined as one’s gender at birth. Any claims that were filed for sex-related acts of discrimination, other than those relating to one’s gender at birth, could not be adjudicated by the EEOC.

The term “sex” was expanded in the 1989 Price v. Waterhouse decision when the U.S. Supreme Court held that sex stereotyping was protected under Title VII. The law continued to evolve and, in 1998, rendering the majority opinion in Onacle v. Sundowner Offshore Services, Justice Scalia acknowledged that same-sex harassment is also discrimination under Title VII.

Still, it was not until the 2012 landmark decision, in Macy v. Dep’t of Justice, when the EEOC recognized that claims based on transgender discrimination are protected under Title VII and can be adjudicated according to 29 C.F.R. Part 1614 of the EEO complaint process. Under Macy, a transgender individual who experiences sex discrimination in the workplace can establish a case under three theories: sex, gender stereotyping, and gender identity. Sex discrimination based on gender identity exists when an agency denies employment because the applicant is transgender, terminates employment based on transgender status or repeatedly uses the incorrect gender pronoun when interacting with or talking about a transgender employee.

On April 9, 2015, the EEOC v. Lakeland Eye Clinic, P.A. $150,000 settlement marked a “historic” moment for the EEOC. It was one of the first times the EEOC filed a case for sex discrimination against a transgender employee. The EEOC has made LGBT coverage under Title VII a priority through its Strategic Enforcement Plan (“SEP”). In 2015 alone, the EEOC held over seven hundred events where LGBT rights were discussed. With its directed attention on LGBT coverage, the EEOC has resolved one hundred eighty-four cases and settled twelve of two hundred seventy-one transgender/gender-identity claims it received in 2015.

The EEOC continues its efforts to educate, prevent, and correct LGBT rights and has committed to protecting sex-discrimination rights of transgender individuals.

Apr 18

Equal Pay for Equal Play

By Mary Cunningham.

On April 12, the U.S. observed Equal Pay Day—a day created to discuss the pay gap between men and women. Equal Pay Day received special attention this year because of its temporal proximity to the day the U.S. Women’s National Soccer Team (USWNT), represented by five of its best players, filed a complaint with the Equal Employment Opportunity Commission against the U.S. Soccer Federation alleging wage discrimination. The U.S. Soccer Federation is the governing body of soccer in all its forms in the United States. U.S. Soccer also determines compensation for members of both the U.S. men’s national soccer team (USMNT) and the women’s national team.

The women’s team asserts that the players for the men’s team are paid almost four times more than the women’s players. Their complaint notes, for example, that the men are paid no less than $5,000 for an exhibition game, and as much as $22,625 for winning the game. In contrast, the women are paid $3,600 to play an exhibition, and are paid only $4,950 for a similar win.  The team bonus the women received after winning the 2015 World Cup was also several million dollars short of the team bonus the men received in 2014 after being eliminated in the second stage of the tournament. This pay disparity seems unjustified particularly in light of USWNT’s claim that they bring in more revenue than USMNT.

U.S. Soccer disagrees with USWNT on revenue, arguing that USWNT is drawing from a particularly successful year to make broad conclusions. The federation also notes that FIFA tournament payout for men’s soccer is dramatically higher than payout for women’s soccer. They argue the difference in payout primarily explains the pay gap for the men’s and women’s World Cups.

For a wage discrimination claim under Title VII, USWNT has the difficult task of showing proof of U.S. Soccer’s discriminatory intent. To establish a prima facie case for wage discrimination under the Equal Pay Act (EPA), they must show that the women’s and men’s players perform equal work, which involves substantially equal skill, effort, and responsibility in similar conditions. If this standard is met, the burden shifts to U.S. Soccer (the employer) to prove that the difference in pay is justified by one of four defenses: “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.”

The fourth defense—“factor other than sex”—has been broadly interpreted. For example, the Seventh and Eighth Circuits have held that “acceptable business purposes” arising from “factor other than sex” does not need to be a reasonable business purpose to constitute a defense.  Essentially, if U.S. Soccer is correct and the men’s team produces significantly more revenue than the women’s, paying the women less may be acceptable to a court unwilling to adjudicate the wisdom of business decisions. U.S. Soccer, however, would likely avoid simply arguing women’s pay is justified because “market forces,” such as the professional soccer job market, have determined that women are paid less than men. This argument seems problematic because, if adopted, it frustrates the EPA’s goal of overcoming historic sex-based wage discrimination created by market forces.

At this point, a likely strategy for USWNT involves tackling wage issues during their collective bargaining negotiations to avoid what would be an interesting, but tricky, legal battle.

Apr 04


By Courtney Sokol.

On March 22, in Tyson Foods, Inc. v. Bouaphakeo, the U.S. Supreme Court, in a 6-2 decision, upheld an Eighth Circuit ruling that certified a group of workers at Tyson Foods as a class under both a Rule 23(B)(3) class action and a Fair Labor Standards Act of 1938 (FLSA) collective action. Tyson Foods did not pay its employees for time spent “donning and doffing” necessary protective gear. The employees argued that Tyson Foods violated FLSA and the Iowa Wage Payment Collection Law by not paying appropriate compensation for time spent putting on and taking off the protective clothing at the beginning and end of the day and lunch break. While the central issues addressed by the Court address certification of a class with non-identical members, of which many were uninjured, the decision offers broader implications for the strength of worker protections.

Delivering the opinion of the Court, Justice Kennedy noted the grueling and dangerous conditions that Tyson’s workers experienced along with the necessity of such gear. Until 1998, the workers were paid under a system called “gang-time,” where employees were compensated for time spent only at their workstations. This time did not include when they were required to put on or take off protective gear. In response to a federal-court injunction, Tyson in 1998, began to pay all employees for an additional 4-minute period called “K-code time.” The four-minute period is the time estimated by Tyson for how long employees needed to put on their gear. However, in 2007, Tyson stopped K-code time, and instead only paid some employees beyond their gang-time wages for time spent dressing and undressing.

In response to this change, the employees filed suit in the United States District Court for the Northern District of Iowa, alleging FLSA violations. FLSA requires that a covered employee who works more than 40 hours a week receive excess time worked “at a rate not less than one and one-half times the regular rate at which [the employee] is employed.” 29 U.S.C. §207(a). Additionally, FLSA requires employers to pay employees for activities which are integral and indispensable to their regular work, even if the work does not occur at the work station.

Here, the employees argued that putting on and taking off their protective gear were integral and indispensable to their hazardous work, and therefore, compensation for such is required by FLSA. The employees raised the same claim under the Iowa Wage Payment Collection Law, which includes FLSA mandated overtime.

At trial, the employees had to prove that they worked 40 hours or more per week in order to qualify for FLSA overtime. Respondents proposed to bifurcate proceedings by requesting that the District Court address first, whether the time spent preparing their protective gear was compensable under FLSA and how long the activity took on average; and second, a statistical methodology be used to determine how much each employee would recover.

Tyson Foods did not move for a hearing regarding either of the above issues raised by the employees, but instead challenged the class certification under FRCP Rule 23(B)(3) and FLSA collective action. Tyson Foods argued that the varying amounts of time it took employees to don and doff different protective equipment made the lawsuit too speculative for class-wide recovery.

The Court turned to its decision in Anderson v. Mt. Clemens to explain that when employers violate their statutory duty to keep proper records, which prevents employees from establishing how much time they spent doing uncompensated work, the “remedial nature of [FLSA] and the great public policy which it embodies . . . militate against making” the burden of proving uncompensated work “an impossible hurdle for employee[s].”

The court held that the class members were joined under a common question, which satisfies the requirements for a class-action suit irrespective of differences among the members. Although the case was decided on procedural grounds, Kennedy’s majority opinion put great emphasis on the danger of the Respondent’s profession paired with the necessity of the protective gear. In evoking the remedial nature of FLSA, the Court is seemingly united behind pro-labor sentiment.

Mar 01

New York City Restaurants Adopt a No-Tipping Policy

By Charles Lazo on March 2, 2016.

In the past few decades, Fair Labor Standards Act (“FLSA”) lawsuit filings have been increasing at a steep rate. This can partly be contributed to FLSA, but also to states’ parallel wage and hour laws. In particular, state laws that pertain to tip credit.

Under FLSA, a restaurant can take a “tip credit” towards its minimum wage obligation for tipped employees equal to the difference between the required cash wage of at least $2.13 per hour and the federal minimum wage of $7.25 per hour. Under New York Labor Law (“NYLL”), restaurants may take a tip credit of $1.50 per hour toward their $9.00 per hour minimum wage obligation. However, for a restaurant to take a tip credit, it must comply with both FLSA’s and NYLL’s strict notice requirements—something that many restaurants fail to meet, despite their good intentions.

To avoid costly wage and hour lawsuits, some restaurant employers are deciding to forgo the advantages of the tip credit and instead pay its waitstaff a higher hourly wage. In effect, the restaurant employers do not need to meet the strict notice requirements, and consequently, do not need to protect themselves from wage and hour lawsuits.