Life after Epic Systems: Almost 3000 Workers Are Dropped from Chipotle’s Wage Suit

chipotle picWhen the Supreme Court ruled on Epic Systems v. Lewis on May 21, 2018, they altered how cases involving collective action would play out. We are currently seeing the results of the Court’s decision in the case of Turner et al v. Chipotle Mexican Grill, Inc. Continue reading

Big Legislative Takeaways for Delaware

Saturday June 30 (and into the wee hours of Sunday July 1) saw the end of the fiscal year and with it came midnight and last minute (literally) deals in the Delaware General Assembly. Here were some of the biggest takeaways that will affect employment law: Continue reading

Waiting for Wages: Washington, DC Votes to Eliminate Two-Tier Minimum Wage

ReceiptIt’s Hard Out There for a Tip

Life as a waiter is hard. Rude customers, surviving the lunch rush, and then you get stiffed on a tip.  While it’s an afterthought for many of us as diners, tips are a waiter’s livelihood.  For those who have never waited a table or processed payroll for a hospitality business, here’s a secret:  waiters aren’t entitled to the same minimum wage as everyone else in the United States. Continue reading

Right-to-work: Right or Wrong?

Recently there has been a lot of talk in Delaware regarding right-to-work laws.

When a private-sector company is organized, the union will try to negotiate a requirement that all employees either join the union and pay union dues or pay a so-called agency fee for the services provided by the union like negotiations and grievance processing. The National Labor Relations Act (NLRA) authorizes individual states to outlaw this practice.  Any state who passes such a law is called a “right-to-work state.”

Delaware, like 21 other states, is not a right-to-work state. Delaware Governor Carney wants Delaware to stay that way. Continue reading

Marriage Equality and the FMLA

The Supreme Court’s 2013 ruling in United States v. Windsor created a lot of uncertainty in the area of federal employment benefits. Because the federal government’s definition of marriage as being between one man and one woman was held to be unconstitutional, the decision left open the question of when same-sex couples were eligible for spousal benefits in a variety of contexts. In a move that is sure to simplify issues for multi-state employers, the Department of Labor is taking steps to clarify that issue under the Family & Medical Leave Act (FMLA). Continue reading

A Reminder About Comp Time

It’s summer and that means it’s time for summer vacations.  Some employers are unaware of the law regarding when an employee may be paid “comp time” instead of wages.  So here’s a brief recap of what you should know.logo_from_dev

Rule #1

Absent an exemption (see below), all employees must be paid at an overtime rate of 1.5 times the normal hourly rate for all hours worked in excess of 40.

This means that an employee who earns $20/hr. must be paid $30/hr for each hour worked over 40.

If the employee works 40 hours, he is paid $20 x 40 = $800.  If he works 42 hours, he is paid $20 x 40 ($800) plus $30 x 2 ($60) as overtime compensation.

But he may not be paid his regular rate for the first 40 hours ($800) plus 2 hours of “comp time.”  No, no, no.  All time in excess of 40 must be paid (money in an amount equal to) 1.5 times the normal hourly rate.

Rule #2

Provided the employer complies with Rule #1, the employer may offer comp time as a supplemental form of wages.

One common example of this is paying comp time for hours 35-40.  So, in addition to his regular wage of $800, the employee may also be paid 5 hours in comp time as an incentive or reward for working those last five hours.  Similarly, some employers offer comp time for premium shifts.

Both scenarios are totally kosher, so long as the employee is receiving his regular wage.  Comp time is a supplement not a substitute.

Rule #3

As with any rule, there are exceptions.

But, with comp time, the exceptions are few.  An employer may pay an employee comp time in lieu of  wages in certain situations.  First, exempt employees (those who are not entitled to overtime in the first instance) can be paid comp time for time worked in excess of 40 in a week.

Second, certain public-sector employees may be paid comp time, including state and local government employers.  In the public sector, under certain conditions, employees may receive compensatory time off at a rate of 1.5 hours for each overtime worked, instead of cash overtime pay.

Law enforcement, fire protection, and emergency response personnel and employees engaged in seasonal activities may accrue up to 480 hours of comp time; all other state and local government employees may accrue up to 240 hours.

Recap

There are exceptions to every rule.  For example, some states do not permit the use of comp time or limit accrual to a lesser number than provided by federal law.  Before you implement a comp-time system in your workplace, you should consider having it reviewed with legal counsel.  And, if you have a comp-time system in place for non-exempt employees as a substitute for overtime pay, you should consider consulting with your employment lawyer to determine whether the system violates state or federal wage payment laws.

See also U.S. DOL Fact Sheet #7 State & Local Governments Under the FLSA

Other FLSA posts