In a boon for employers with exempt employees, the Third Circuit held earlier this year as an issue of first impression that paid time off (PTO) is not part of an exempt employee’s salary under the federal Fair Labor Standards Act (FLSA). Thus, although PTO arguably has a monetary value, employers will not be liable under the FLSA for deducting from a salaried employee’s PTO time.In Higgins v. Bayada Home Health Care Inc., 62 F. 4th 755 (3d Cir. 2023), Plaintiff, a registered nurse employed by Defendant, Bayada, a home health care company, filed a collective action on behalf of herself and other full-time, salaried employees, arguing that Bayada made improper deductions from their accumulated PTO in violation of the FLSA, 29 U.S.C. § 201, et seq. As part of their employment, each Plaintiff was required to meet a weekly productivity minimum. While each Plaintiff was paid a pre-determined salary, each Plaintiff was also required to accumulate a specific number of “productivity points” per week commensurate with their salary for completing routine tasks. When they exceeded their productivity minimums, they would receive additional compensation. However, if they failed to meet their weekly productivity minimums, Bayada would withdraw from their available PTO time in order to make up for the difference. In filing their lawsuit, Plaintiffs argued that their PTO time constituted part of their salary under the FLSA and, therefore, Bayada violated the FLSA by deducting from their PTO.The Third Circuit disagreed. In affirming the district court’s grant of summary judgment in favor of Bayada, the court of appeals reasoned that there is “a clear distinction between salary and fringe benefits like PTO.” Specifically, when an emplo

he covenant.The federal bills…We now have the text of the four pending federal bills. As a reminder, they are as follows:(1) Senators Young and Murphy (along with the support of two other co-sponsors) filedthe Workforce Mobility Act of 2023, again proposing a ban on all employee noncompetes(i.e., permitting sale of business noncompetes).(2) Representative Scott Peters (along with the support of two other co-sponsors) filed the Workforce Mobility Act of 2023, which isthe House version of the same re-proposed ban.(3) Representative Claudia Tenney reintroduced her Ensure Vaccine Mandates Eliminate Non-Competes Act (the “EVEN Act”)“[t]o void existing non-compete agreements for any employee who is fired for not complying with an employer’s COVID-19 vaccine mandate, and for other purposes.”(4) Senators Marco Rubio and Maggie Hansen reintroduced the Freedom to Compete Act. Like the prior versions, the bill would ban noncompetes for anyonenot exempt under the Fair Labor Standards Act of 1938 (29 U.S.C. 201, et seq.)— the approach taken first by Massachusetts and later by Rhode Island.* * *Resources to helpWe know first hand how hard it is to keep up with the ever-changing requirements around the country. To help, we have created the following resources (available for free):50-State Noncompete Law Chart, the first of its kind and regularly updated (downloadable PDF);Chart of Noncompete “Low Wage” Thresholds and Criteria(downloadable PDF);Notice requirements summary chart, providing details for each of the 8 states (plus D.C.) that has notice requirements related to noncompetes (downloadable PDF);“Changing Trade Secrets | Noncompete Laws” (dedicated blog page) now provides a current detailed summary ofthe changing landscape of trade secret laws and noncompete laws around the country, state by state and at the federal level; andTrade secret and other legitimate business interest protection plan strategy and checklist.We also have a50-State and Federal Trade Secret Law Chart, providing a co

ion. The Court did not decide whether employer rounding practices in other contexts comply with California law, such as where an employer uses a neutral rounding policy due to the inability to capture the actual minutes worked, or whether an employer who can capture actual minutes worked must do so, noting that the California Supreme Court has indicated that in circumstances involving “‘the practical administrative difficulty of recording small amounts of time for payroll purposes,’” and where “neither a restructuring of work nor a technological fix is practical, it may be possible to reasonably estimate worktime.” (Troester v. Starbucks Corp. (2018) 5 Cal.5th 829, 848.)In See’s, the appellate court observed that “[a]{:target=”blank”}lthough California employers have long engaged in employee time-rounding, there is no California statute or case law specifically authorizing or prohibiting this practice”, but a federal regulation adopted under the Fair Labor Standards Act of 1938 (FLSA; 29 U.S.C. § 201 et seq.) permits time-rounding. (See’s Candy, supra, at p. 901.) The rationale in See’s was that in some industries, particularly where time clocks are used, there has been the practice of recording the employees’ starting/stopping time to the nearest 5 minutes, one-tenth or quarter of an hour, the presumption being that this arrangement averages out so employees are fully compensated for all the time worked. It was also a practice that had long been adopted by employers throughout the country so it was reasonable for the court to construe the requirements of the California wage law consistent with the FLSA. Thus, the Court in See’s held that “he rule in California is that an employer may use the nearest-tenth rounding policy if it is fair and neutral on its face and used in such a manner that it will not, over time, fail to compensate the employees for all time worked.The Court in Camp explained that in the ten years since See’s was decided, other Courts of Appeal have found time rou

This is the seventh bill to regulate noncompetes in the current Congress, and it is largely identical (except the name) to Senator Rubio’s (R-FL) Freedom to Compete Act. If passed, the Restoring Workers’ Rights Act of 2022 would amend the Fair Labor Standards Act of 1938 (29 U.S.C. 201, et seq.) to essentially ban noncompetes — both retroactively and prospectively — for workers who are not exempt (under the FLSA).If you believe that the federal government should be regulating noncompetes and that FLSA-nonexempt workers should be free from noncompetes, this bill gets pretty close to the mark.But, the bill is not without some problems.

In situations where an employer needs to terminate an employee immediately, the employer either “must be prepared to pay him or her in full” or must suspend the employee until the employer can comply with the Act’s payment requirements.DEVANEY V. ZUCCHINI GOLD, LLCIn a decision issued April 14, 2022, Devaney v. Zucchini Gold, LLC,the SJC held that when an employee’s sole claim for the untimely payment of overtime wages rests on the Fair Labor Standards Act (FLSA) overtime provisions, 29 USC § 207, the employee is limited to the remedies provided in the FLSA, 29 USC §§ 201 et seq., and may not pursue remedies under the Wage Act. The Wage Act requires the timely payment of “wages earned.”

However, employers can take some comfort in the fact that similar bills in recent years have failed to pass.Freedom to Compete Act. On July 15, 2021, Sen. Marco Rubio (R-FL) and Sen. Maggie Hassan (D-NH) introduced the Freedom to Compete Act, S. 2375, which would amend the Fair Labor Standards Act of 1938, 29 U.S.C. § 201, et seq., to ban noncompete agreements with certain nonexempt employees. In its current form, the bill would apply retroactively to preexisting noncompete agreements (and thus will likely be subject to constitutional challenges if passed).

Then, in 2014, the U.S. Judicial Panel on Multidistrict Litigation transferred it to the Western District of Kentucky where it was consolidated with a number of cases involving similar claims—but based on the laws of other states (e.g., Kentucky, California, Arizona, Nevada)—that were already pending.The defendants moved for summary judgment arguing that the U.S. Supreme Court’s interpretation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §201 et seq., in Integrity Staffing Solutions, Inc. v. Busk applies to the PMWA. There, the Court held that “an employee’s time spent waiting to undergo and undergoing [an antitheft] security screening . . . is not compensable” under the FLSA as amended by the Portal-to-Portal Act, 29 U.S.C. § 251 et seq.

d for tax and regulatory compliance;The grant proceeds are taxable; andA recipient must have complied, and will continue to comply, with all relevant laws, regulations and executive orders from the state and federal government, including the social distancing guidelines as promulgated by the Executive Orders of the Illinois Governor.The application for the B2B grant is not available at this time (applications will open on August 18, 2021) but the previous grant program from Illinois, the Business Interruption Grant (BIG) Program provides a roadmap as to what a business must “certify” in order to receive the grant. Some of the requirements for BIG were:The recipient will continue to comply, as applicable, with the provisions of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333), the Copeland Act (40 U.S.C. 276c and 18 U.S.C. 874), the Davis-Bacon Act (40 U.S.C. 276a-276-1), the Drug-Free Workplace Act of 1988 (44 CFR, Part 17, Subpart F), the Fair Labor Standards Act (29 U.S.C. 201), and the Illinois Prevailing Wage Act (820 ILCS 130/1);The recipient is not presently suspended, debarred, proposed for debarment, or declared ineligible by any state or federal department or agency, and will not enter into a contract with a contractor who is on any federal or state debarred contractor list;The recipient will prohibit employees, contractors, and subcontractors from using their positions for a purpose that constitutes or presents an appearance of personal or organizational conflict of interests or personal gain;The recipient has no lawsuits, claims, suits, proceedings or investigations pending, to the knowledge of the subrecipient and its authorized representative, threatened against or affecting the recipient (or its officers and directors) in respect of the assets or the subrecipient nor, to the knowledge of the recipient and its authorized representative, is there any basis for any of the same, and there is no lawsuit, suit or proceeding pending in which the recipi

For example, if an employee works 50 hours at $15 per hour, and receives a $200 nondiscretionary bonus at the end of the week, his or her regular and overtime rates would be calculated as follows:Regular Wages: $15 x 50 = $750Wages + Bonus: $750 + $200 = $950Regular Rate: $950/50 = $19/hourOvertime Rate: $19 x 1.5 = $28.50/hourAnother apparent ambiguity in the VOWA is its description of the regular rate calculation for hourly workers. The act states, “[F]or employees paid on an hourly basis, the regular rate is the hourly rate of pay plus any other non-overtime wages paid or allocated for that workweek, excluding any amounts that are excluded from the regular rate by the federal Fair Labor Standards Act, 29 U.S.C. § 201 et seq., and its implementing regulations, divided by the total number of hours worked in that workweek.” (Emphasis added.)

People of the State of California v. Uber Technologies, Inc., No. CGC-20-584402 (Cal Super. Ct. Sf. Cnty. Aug. 10, 2015). On November 5, 2020, the United States Court of Appeals for the Third Circuit vacated the trial court’s summary judgment decision ruling in favor of UberBLACK on the question of whether drivers are employees or independent contractors within the meaning of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201– 219, and similar Pennsylvania state laws. Razak v. Uber Technologies, Inc., 951 F.3d 137 (3d. Cir. 2020).