Practices: Wage & Hour
Wage & Hour
Our team was practicing wage and hour law when there were very few other dedicated practitioners in the field.
The complexities associated with increased number of wage and hour disputes prompt the need for experienced legal teams to help resolve these often contentious issues. No longer is wage and hour law the stepchild of the employment law world, involving only small claims from a single worker. Now a wage and hour case is more likely to morph into a collective/class action involving the rights of many workers. Indeed, wage and hour collective/class actions are the most common form of employment litigation in America today, garnering headlines in the press, and some settlements and judgments of over $100 million. Employers are more likely to be sued on a collective/class basis for alleged wage and hour violations than any other form of employment dispute. Simply put, almost every employee has a potential wage and hour claim.
Seeking to manage their exposure in this new world, employers are called upon to address not only the most straightforward matters but also to navigate the less defined situations that can be, at the least, troublesome, and in the extreme, highly problematic to an organization – for example, who is really nonexempt, what hours did they work, and what overtime pay are they due. Given the demographics of today’s workforce as well as the demands on business environments, it is probable that an employer will indeed encounter wage and hour lawsuit situations.
Brown Rudnick’s nationally renowned Wage and Hour Litigation and Compliance Team has assisted hundreds of companies as they address these challenges. This accomplished team is also respected for their role in teaching and publishing on this topic. Their perspective, seasoned knowledge of the law, ability to articulate issues and develop results strategies, altogether translates into pivotal assistance in three critical areas: compliance, training, and when necessary, litigation.
We provide counsel to employers in the areas impacted by key federal and state wage and hour laws. These include, among other laws, the Fair Labor Standards Act (FLSA), the Davis-Bacon Act (DBA), the Service Contract Act (SCA), and state wage laws. The primary goal, quite simply, is to avoid or resolve federal and state government investigations and private litigation.
Our approach is to address key wage and hour problems:
- "Exempt" and "nonexempt" employee classifications, as defined by federal and state minimum wage and overtime requirements
- Compensable and noncompensable "working time"
- Payroll, salary basis and recordkeeping requirements
- Calculation of the "regular rate" of pay used to determine appropriate overtime compensation
- Tip credit, tip sharing and other compensation issues
- Timekeeping and “rounding” practices
- Prevailing wage rates and government investigations
- Prevailing fringe benefits and government contract price adjustments.
Our work in each of these areas is often applied to the “big picture,” where we conduct a review of the company’s practices as a whole, across their operations. What initiates this kind of evaluation? A client may choose to conduct the review as part of smart business practices. An investigation by the United States Department of Labor or state labor department will also call for this kind of enterprise-wide audit. Due diligence, as an element of a planned business action (merger or sale, perhaps), will also call for a compliance review. We also assist on case by case scenarios, where an employee complaint has been filed or an employee’s situation may have caused concern or questions. Our background also includes defending government contractors experiencing contracting difficulties due to past wage and hour violations.
To wage and hour litigation, Brown Rudnick brings an unarguable record of success. Our team was practicing wage and hour law when there were very few other dedicated practitioners in the field. We collectively offer decades of experience, across the full spectrum of issues that can be encountered, such as, among others, exemptions, working time or child labor. We approach each situation with a pragmatic viewpoint, moving to dismiss or for quick summary judgment when appropriate, or recommending, when in the client’s best interests, that the strategy be to negotiate for a favorable settlement.
Our team’s background includes handling FLSA collective actions and also state law wage hour class actions, with classes ranging in size from a few employees to groups as large as 15,000 employees. We have encountered, in addition to the more routine FLSA issues, situations when it must be decided if a court should certify a class, the scope of the class composition, and the manner in which discovery should be conducted. In each of these types of scenarios, we help clients assess the risks to which they may be exposed and navigate the potential liabilities. Separately, we also assist with individual FLSA actions.
It is indeed true that “an ounce of prevention is worth a pound of cure.” And in the field of wage and hour law, this adage proves itself time and time again. Lack of a clear understanding of federal and state wage laws can lead to very costly judgments or settlements.
To help our clients avoid these pitfalls, we have developed clear and concise FLSA and federal prevailing wage training programs for human resource professionals, in-house counsel and their staff, as well as other managers with supervisory responsibilities. These training sessions can be conducted on the client site, and can be customized, as needed, to address specific needs, situations and concerns. For these sessions, we often develop client-specific materials that prove useful to HR teams as key resource guides.
Additionally, among our credentials in this area are several instructional books that our team has authored and edited. Published by Thompson Information Services, these books include:
- The Fair Labor Standards Act Handbook for States, Local Governments and Schools;
- The Employer’s Guide to the Fair Labor Standards Act;
- FLSA Exemption Handbook;
- Public Employer’s Guide to FLSA Employee Classification;
- Federal Contractor's Guide to Employment Law Compliance; and
- Thompson’s HR Employment Forms – an on-line publication.
In addition, we have authored training manuals on prevailing wage and other topics including The Service Contract Act, A Practical Guide to the Davis-Bacon Act, and The Fair Labor Standards Act. We are active instructors in various seminars, audio-conferences and webinars offered by different sponsors, including but not limited to the following organizations: Federal Publications, Lorman Educational Services, and Thompson Interactive.
We also are experienced government contracts lawyers. Federal and state government contractors have to navigate a complex maze of special wage and hour requirements – including the Service Contract Act; the Davis-Bacon Act; the Contract Work Hours and Safety Standards Act; various Executive Orders including those requiring a first right of refusal to the incumbent workforce and the $10.10 minimum wage; many state "little" Davis-Bacon laws for construction contractors; and local government Living Wage laws. To properly advise clients in these matters, counsel must understand both government contract principles as well as the wage and hour laws. The two practice areas come together and complement each other, permitting us to be more effective advocates for our clients. It is rare to find the two disciplines combined as they are here at Brown Rudnick, where several attorneys have dual experience. Indeed in January 2015, we came out with a new publication, the Federal Contractors Guide to Employment Law Compliance (Thompson 2015), which is perhaps the first publication to comprehensively cover the overlapping government contracts and labor requirements. See http://www.thompson.com/public/offerpage.jsp?prod=COCO.