Tag Archive: FLSA

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.

Apr 04

TYSON FOODS, INC. v. BOUAPHAKEO

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.

Sep 18

FLSA Update: New Rule Expands Coverage to Home Care Workers

Photo Credit: VA

Photo Credit: VA

Yesterday, the United States Department of Labor (“DOL”) announced the final version of a rule that will expand the coverage provided by the Fair Labor Standards Act (“FLSA”).  Under the new rule, home care workers will be protected by the minimum wage and overtime provisions of the FLSA.[1]  Although home care workers whose primary role is to provide companionship to the patient remain exempt from the provisions, the expansion of coverage is expected to bring approximately 2 million additional workers under the coverage umbrella.[2]

Already, both sides of the issue have expressed opinions on why the expanded coverage either will or will not be a good thing in the long run.  Proponents of the new rule have highlighted the fact that a large number of workers who were traditionally underpaid for the services and hours they provided may now have an opportunity to earn a fair salary.[3]  Opponents of the new rule warn of “unintended consequences” that will result from requiring the payment of minimum wage and, in particular, overtime.[4]  They believe that one potential consequence will be the creation of an underground industry within the home health care industry comprised of workers who do not have proper training.[5]

The new rule takes effect January 1, 2015.[6]  Between now and then, the DOL will work with stakeholders in the industry, including the agencies who employ home care workers, home care workers, and patients, on implementation.[7]  More information, including fact sheets and details about upcoming webinars, are available at a special DOL website, which can be accessed here.


[1] United States Department of Labor, Minimum wage, overtime protections extended to direct care workers by US Department of Labor, September 17, 2013, available at http://www.dol.gov/opa/media/press/whd/WHD20131922.htm.

[2] Id.

[3] Bryce Covert, Why It Matters That Home Care Workers Just Got New Labor Rights, Think Progress, September 17, 2013, available at http://www.thinkprogress.org/economy/2013/09/17/2634411/home-care-workers-rule-change.

[4] Angela Gonzales, New ruling on home care workers could mean bigger bills for consumers, Phoenix Business Journal, September 17, 2013, available at http://www.bizjournals.com/phoenix/blog/health-care-daily/2013/09/new-ruling-on-home-care-workers-could.html.

[5] Id.

[6] Department of Labor, supra at note 1.

[7] Id.