Category Archives: Minimum Wage

7 Things Restaurant Employees Should Look Out For

7 Things Restaurant Employees Should Look Out For

With the changes brought on by the new administration, there are multiple legal issues that may come to the forefront in employment law for the restaurant industry in 2017. Here are some areas that the employment law team at Swartz Swidler believes that you should watch.

Joint-employer liability

Liability issues in a case that is currently on appeal following a National Labor Relations Board decision may have an impact on liability within the restaurant industry, including questions about whether franchisees or franchisors are liable in lawsuits. The case likewise raises questions about liability when contractors are involved.

in the case, the NLRB changed its test for what is required to establish joint-employer reliability. Traditionally, the test focused on wage and supervisory decisions, control and direct and immediate control. The elements were eased, broadening when joint-employer liability might be found. The new standard allows joint-employer liability when a company exercises indirect control over workers. If this rule stands, then multiple other parties beyond the direct employer may be liable for labor violations.

Minimum wage

Many restaurants run into problems with their wages. While the federal minimum wage is set at $7.25 per hour, New Jersey’s minimum wage is $8.44 per hour. In Pennsylvania, the state’s minimum wage is $7.25 per hour, but there is a pending bill in the state’s House to raise it. Trump said during the early part of his campaign that he would be in support of increasing the federal minimum wage to $10 per hour, but the current political climate suggests that is unlikely, leaving it to the states to raise their own state minimums.

Overtime

The U.S. Department of Labor published its final rule about overtime in early 2016, which would increase the annual salary threshold for administrative, executive and professional employees from $23,660 to $47,476. Under the rule, those employees who make less than the threshold amount would be eligible for overtime pay and minimum wage protections. While its effective date was supposed to be Dec. 1, 2016, a federal judge blocked it nationally in Nov. 2016 after 21 states filed a lawsuit stating that the new regulations were unconstitutional. Trump’s choice for his Secretary of Labor, Andy Puzder, is the former CEO of CKE Restaurant Holdings, which is the parent company of Hardee’s and Carl’s Jr. Under his governance, the Labor Department is unlikely to implement the rule as it stands and may either substantially revise it or scrap it.

Predictive scheduling

Predictive scheduling is being considered in multiple states and cities. This would require employers to schedule most of the expected shifts and to post them publicly in advance. If employers ask workers to accommodate last-minute schedule changes, the employers would have to pay them extra compensation. A bill in New York about predictive scheduling would affect quick-service eateries, but it may later extend to other restaurants.

Tip pooling

Under the federal tip-pooling rule, restaurants are not allowed to make waitstaff share their tips with back-of-the-house employees. An appeal of a ruling out of the Ninth Circuit Court of Appeals that upheld the tip-pooling rule is currently pending before the Supreme Court of the United States. It is likely that the current administration will oppose the rule because restaurants enjoy economic advantages by letting their back-of-the-house employees participate in the tip pools.

Wage disparity and the pay gap

In recent years, wage disparity between the genders and races has become a hot-button issue. Studies have demonstrated that significant gaps exist between the wages of men and women in restaurants and between minorities and whites as well. Employees are allowed to file complaints about unfair pay within 180 days after their employers’ pay decisions under the Lilly Ledbetter Fair Pay Act. Beginning on Sept. 30, 2017, the Equal Employment Opportunity Commission has indicated that it will require employers that have more than 100 employees to submit compensation reports.

LGBTQ workplace rights

In 2016, LGTBQ rights surged to the forefront with the right to bathroom use becoming a part of the national debate. The Supreme Court granted certiorari to a case that involved a transgender student in Virginia named Gavin Grimm who wanted to use the men’s restrooms at his school. When the Trump administration revoked the guidance that had been established by the Obama administration, the Supreme Court returned the case to the lower court in March 2017. The 4th Circuit Court of Appeals will hear the case this fall. While the case does not directly involve employment law, it may potentially have an effect on how the EEOC and the federal courts view discrimination against LGBTQ people if it is determined that discrimination against them falls under the category of prohibited sex discrimination.

Employment laws are constantly changing. The experienced team at Swartz Swidler constantly work to stay current on the law. If you’d like to know more about the rights that you have, contact us today to schedule your consultation.

UPDATE IN WERNER!! – Court Holds Werner Violated the Law.

Court sides with drivers, holds that Werner violated the law.

As many of you know, we have been, and continue to, fight very hard for all drivers of Werner. Since 2011, we have been litigating ​Petrone v. Werner Enterprises. For years, we have worked to convince the courts (and Werner) that Werner fails to pay its trainees in accordance with federal and state law. Many class members signed up for the lawsuit in 2012.

We are pleased to in announce that we have obtained a major victory earlier this week, when the federal judge overseeing the case held that, as a matter of law​, sleeper berth time (beyond 8 hours per day) and short rest breaks are compensable working time for truck drivers. Werner failed to pay its drivers for such time.  Consequently, Werner’s conduct violated the law.

As a result, the federal judge overseeing the case, the Honorable Lyle E. Strom, held that Werner violated state and federal law.

This is the decision we been waiting for. You can read the decision here.

What’s next?

Even though the Court has held that such time is compensable as a matter of law, there are still a few unresolved issues which must be determined next month at trial. First, there is a question as to whether Werner’s decision not to pay for such time was reasonable and in good faith. If, at trial, it is determined that Werner did not act in good faith, double damages may be awarded, and under Nebraska law, Werner could be compelled to pay an additional damage award into a fund for the benefit of Nebraska schools.

Additionally, the Court has determined that the amount of damages (money) to award to the class will be determined at trial.

You are invited to come to the trial, and we would love for drivers to come to show their support.

If you live in the Omaha area, or can come to the Omaha area, please come to the trial. It will start on September 9, 2015 and will probably last about a week. The address of the Court is:

111 South 18th Plaza
Suite 1152
Omaha, NE 68102

We hope to see you there. We’d love to meet you in person.

We are a law firm based in Cherry Hill, New Jersey focusing on many types of employment matters, with an emphasis on nation-wide wage and hour disputes in the trucking industry and elsewhere. We are also teamed up with some of the best personal injury and work-injury attorneys in the country.

Justin L. Swidler, Esq.
Richard S. Swartz, Esq.
Swartz Swidler, LLC

Supreme Court Upholds Determination that Loan Officers Were Entitled to Overtime

Mortgage loan officers might be now entitled to a 40-hour work week and overtime pay, after the U.S. Supreme Court ruled that the Department of Labor acted within its authority when it reclassified loan officers as non-exempt employees who are eligible for overtime.

The ruling stems from a 2010 decision by the Department of Labor to reclassify loan officers. According to its “Administrator’s Interpretation”, loan officers in the mortgage banking industry generally do not qualify as exempt from overtime under the administrative exemption of the federal Fair Labor Standards Act (FLSA).

In 1999 and in 2001, the DOL Wage and Hour (W&H) Division issued Opinion Letters concluding that mortgage loan officers do not qualify for the administrative exemption, and therefore must be paid minimum wage and overtime.  Then, following the DOL’s update of the Fair Labor Standards Act (“FLSA”) regulations in 2004, the Mortgage Bankers Association (MBA) requested a new opinion interpreting the revised regulations. Therefore, in 2006, the DOL changed course and issued a new Opinion Letter, stating that loan officers could generally qualify as exempt from minimum wage and overtime requirements under the FLSA.

In order to comply with this administrative exemption under the FLSA, an employee’s job duties and compensation must meet all of the following tests:

  1. The employee must be compensated on a salary or fee basis as defined in the regulations at a rate not less than $455 per week;
  2. The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and
  3. The employee’s primary duty must include the exercise of discretion and independent judgment with respect to matters of significance.

However, in 2010 the DOL issued an “Administrator Interpretation” concluding that mortgage loan officers generally do not perform the type of duties necessary to qualify for the administrative exemption of the FLSA.  In fact, the 2010 interpretation focuses on the application of the second test to employees who perform the typical jobs duties of a mortgage loan officer, that is, whether the primary duty of employees who perform the typical job duties of a mortgage loan officer is office or non-manual work directly related to the management or general business operations of their employer or their employer’s customers.

According to the facts found during the DOL Wage and Hour Division investigations and the facts set out in the case law establish, the typical mortgage loan officer job duties are: speaking with potential customers, collecting their financial information, running credit reports, and giving those potential customers information about the loan products that suit them more based on the matches than a computer program does based on the financial information provided.

The DOL based its 2010 interpretation in the difference between work related to the goods and services which constitute the business’ marketplace offerings (in this case, loans) and work which contributes to ‘running the business itself’. Thus, the DOL’s interpretation of law states that mortgage loan officers’ primary duty is making sales.

The new interpretation of the FLSA administrative exemption, prompted the Mortgage Bankers Association (MBA) to sue, arguing that because the DOL had previously issued an Opinion Letter in 2006 determining that loan officers could generally qualify as exempt from minimum wage and overtime under the administrative exemption, the DOL could not change its prior position without first issuing a written notice and allowing a comment period pursuant to the Administrative Procedure Act (APA). The federal District Court disagreed with the MBA, and ruled in favor of DOL. The MBA appealed, and the D.C. Circuit Court of Appeals agreed with the MBA and vacated the Administrator’s Interpretation. In late 2013, following the decision by the Court of Appeals, the federal District Court issued an order on remand vacating and setting aside the 2010 DOL Interpretation, rendering it of no effect. However, the DOL appealed to the U.S. Supreme Court.

On March 9, 2015, the Supreme Court reinstates the 2010 Interpretation which represents the current position of the agency. As noted by the Supreme Court, the 2010 Interpretation is merely an “interpretative rule” that is issued to advise the public of the DOL’s construction of the statutes and rules which it administers and is not a “legislative rule” that has the “force and effect of law.”  Furthermore, the Department of Labor is not subjected to the APA’s public notice-and-comment requirement because it doesn’t apply to interpretive rules; ”because  an agency is not required to use notice-and-comment procedures to issue an initial interpretive rule, it is also not required to use those procedures to amend or repeal that rule,” Justice Sonia Sotomayor wrote in the consensus opinion.

The Supreme Court case is Perez et al. v. Mortgage Bankers Association, case number 13-1041, and Nickols et al. v. Mortgage Bankers Association, case number 13-1052, decided March 9, 2015.

Finally, as the DOL clearly remarks, a job title (in this case, “mortgage loan officer”) does not determine whether an employee is exempt. The employee’s actual job duties and compensation determine whether the employee is exempt or nonexempt. Therefore, if you currently hold a mortgage loan officer position and you want to find out about your particular situation, please feel free to contact our staff for a free and confidential consultation.

If you have worked as a loan officer or in a similar capacity and were denied overtime pay, please contact Swartz Swidler today to speak to one of our New Jersey employment attorneys.  There is no cost for the consultation, and we typically accept cases on a contingent basis, meaning there is no upfront cost to you, and we only get paid if we obtain a recovery in your favor.

Truck Drivers Reach Settlement For Violations of Minimum Wage and Overtime

The United States District Court District of New Jersey preliminarily approved a settlement to pay for alleged violations of the Fair Labor Standards Act (the “FLSA”), the New Jersey Wage and Hour Law, and the New Jersey Wage Payment Law.

TRENTON, NJ: The settlement resolves a lawsuit that was filed back in 2013 over whether the employer had a policy or practice of failing to pay trainees wages equal to at least the federal minimum wage as established by the FLSA, whether the employer failed to pay overtime and minimum wages under New Jersey law, and whether the employer improperly deducted pay from the wages of trainees. The truck drivers are being represented by Swartz Swidler, LLC, an employment law firm based in Cherry Hill, NJ which is litigating nearly a dozen wage and hour matters against trucking companies nationwide.

The Plaintiffs contended that the employer violated the New Jersey wage and hour law and the Fair Labor Standards Act (FLSA) by failing to pay newly hired drivers for time worked during the mandatory training and orientation periods and for requiring newly hired individuals to pay an application fee to be considered for employment.

The Plaintiffs alleged that they were designated “Students” by the company and were required to complete initial hire classroom orientation and drug testing.  Plaintiffs further contended that they were required to pay a nonrefundable training fee for that purpose. After successful completion of orientation, the Students were then required to engage in over-the-road training with an instructor. Plaintiffs contended that the employer provided Students with a travel expense reimbursement per day (“per diem”) during the required completion of the training period.  The employer contended that the per diem reimbursement should qualify as a wage, and further argued that Student Drivers were not employed during their training.

The truck drivers alleged that they were denied overtime and minimum wages because the employer failed to pay for all compensable work time, including “on duty” time and compensable rest periods.

Plaintiffs alleged that the training constituted employment because during the training, they were required to perform actual work for the employer.  Additionally, they alleged that the nonrefundable training fee was unlawful pursuant to the Fair Labor Standards Act (FLSA) and the New Jersey Wage Payment Law (NJWPL). Per the FLSA, an employee must be provided wages equal to at least the minimum wage and must be provided same “free and clear”. Wages are not provided “free and clear” where the “the employee ‘kicks-back’ directly or indirectly to the employer. . . the whole or part of the wage delivered to the employee.” Additionally “if an employer requires a prospective employee to purchase [an item] before starting work, the employer must reimburse the employee no later than the next regular payday to the extent that the [item] costs cut into statutory minimum wage or overtime premium pay.” Likewise, the New Jersey Wage Payment Law (NJWPL) explicitly prohibits employers from deducting from wages any amounts paid to the employer for training and further compel reimbursement for any costs associated with any medical examination (the non-refundable fee was in part to pay for a drug test). Plaintiffs therefore contended that the non-refundable fee was unlawful under the FLSA and the NJWPL.

The employees further alleged that “per diem” travel reimbursements did not constitute wages and did not offset the amount of minimum wages and overtime due.

Additionally, According to the FLSA and the NJWPL, reimbursements for travel expenses are not part of an employee’s “regular rate”. The Department of Labor further explains that reimbursements for meal and incidental costs incurred when an employee is traveling over the road on an employer’s business is excluded from the regular rate and does not constitute compensation, meaning that per diem should not be included to calculate the employee’s regular rate of pay.  Accordingly, the Plaintiffs contended that the per diem payments were not creditable towards the wages due to them.

Consequently, the Plaintiffs asserted that the employer  did not pay them for all hours worked, including approximately 50 hours that every Student worked per week while in over-the-road training as “on duty” time as defined by the Department of Transportation (DOT), and including time logged in a truck’s sleeper berth beyond 8 hours per day during their training and other compensable rest periods.

The Court will hold a Final Fairness Hearing in June.  The Magistrate Judge will decide whether the Settlement is sufficiently fair and reasonable to warrant final court approval.

New Jersey Raises Minimum Wage

What is the New Jersey Minimum Wage?

On January 1, 2015, New Jersey’s minimum wage rose from $8.25 to $8.38 which represents an increase of 1.59. This annual adjustment of 13 cents was approved to counteract the rate of inflation, which was increasing the cost of living in the state as the wage stayed the same.

Why was the New Jersey Minimum Wage increased in 2015?

Pursuant to N.J.A.C. 12:56-3.1 the Department of Labor and Workforce Developments shall raise the New Jeresey minimum hourly wage rate, “based on any percentage increase during the one-year period of August of the prior year through August of the current year of the consumer price index (CPI) for all urban wage earners and clerical workers (CPI-W, U.S. City Average), as released by the United States Department of Labor, Bureau of Labor Statistics.”

The 2015 New Jersey Minimum Wage increase will directly boost pay for about 5 Percent of New Jersey’s Workers.  This wage increase will affect around 176,000 workers who are currently making the minimum wage or slightly more. The brief also states that $55.1 million in new wages will go to families with low-wage workers in 2015, meanwhile $39.9 million of that will go to families earning between $20,000 and $40,000 a year.

The New Jersey minimum wage is still too low to have a significant impact for the 30% of New Jersey households that earned too little to provide basic necessities.  In fact, studies have shown that due to the cost of living in New Jersey, New Jersey’s living wage (an amount where an employee would earn enough to provide for all the basic necessities, including housing, transportation, health care, child care, and food) is closer to $15 per hour, at least.  While New Jersey’s minimum wage increase is a small step

Is the New Jersey Minimum Wage Higher than the Federal Minimum Wage?

At the federal level, the minimum wage set by the Fair Labor Standards Act of 1938 ((29 U.S.C. §206(a)(1)), has not been changed since 2009.  The federal minimum wage is $7.25 per hour.

Federal Court Holds Sleeper Berth Time is Compensable Work Time

NEWARK, NJ: On September 30, 2014, the United States District Court District of New Jersey ordered judgment against the New Jersey based trucking company, Jasmin International Corporation and its owner for violations of the Fair Labor Standards Act (“FLSA”), the New Jersey Wage and Hour Law, and the New Jersey Wage Payment Law. The plaintiff truck drivers were represented by Swartz Swidler, LLC, an employment law firm based in Cherry Hill, NJ which is litigating nearly a dozen wage and hour matters against trucking companies nationwide.

New Jersey Voters Stand Behind Workers and Raise Minimum Wage

On November 4th New Jersey residents voted in favor of raising the state minimum wage to $8.25 an hour. Voters overwhelmingly supported the raise, which additionally amends the state Constitution to adjust the minimum wage in tandem with the rise of inflation.

The results of the public ballot will amend Article I of the New Jersey State Constitution. The amendment begins by stating its intentions rather triumphantly:

More than 5,000 Drivers Have Joined the CR England Class Action Lawsuit

SALT LAKE CITY, UTAH: The class and collective action lawsuit filed against C.R. England earlier this year is becoming a major legal battle between the company’s current and former truck drivers and the company.  As of the writing of this article, more than 5,000 C.R. England drivers have filed Consent Forms to join the C.R. England Class Action Lawsuit (as of 11/9/2013).  The collective and class action lawsuit, which was filed in the United States District Court for the District of Utah earlier this year, was certified as a collective action in September of 2013.

C.R. England Drivers win Conditional Class Certification under the FLSA

SALT LAKE CITY: On September 5, 2013, the United States District Court for the District of Utah entered an order conditionally certifying class of drivers who are or were employed by C.R. England at any point from July of 2010 through the present. The drivers contend that C.R. England violated violated the Fair Labor Standards Act (“FLSA”) and paid its drivers below the federal minimum wage for all hours worked.

Truck Drivers Bring Fair Labor Standards Act (“FLSA”) Action Against Stevens Transport

DALLAS, TEXAS: Earlier this week, three over-the-road truck drivers of Stevens Transport, Inc. filed a class and collective action lawsuit asserting that the trucking company violated the federal Fair Labor Standards Act (“FLSA”) by paying them under the federal minimum wage for all hours worked.  Swartz Swidler, LLC, an employment law firm in Cherry Hill, New Jersey (NJ) which focuses on employment law with an emphasis on wage and hour  litigation, represents the truck drivers in the action.