Fluctuating Work Week November 26, 2019 Pennsylvania Supreme Court Rejects Fluctuating Work Week Method The PA Supreme Court ruled that the “Fluctuating Work Week” method of calculating overtime pay is not permissible under Pennsylvania law. Tawny Chevalier, et al. v. General Nutrition Centers, Inc., et al., Case Nos. 22 WAP 2018 and 23 WAP 2018 (Nov. 20, 2019), PA Supreme Court. What is the Fluctuating Work Week Method? Under the fluctuating work week method, non-exempt employees (entitled to overtime pay if they work more than 40 hours a week) who are paid a fixed salary regardless of hours worked are paid for all hours worked in a work week beyond 40 hours at half of their “regular rate” of pay. That “regular rate” is determined by dividing the employee’s salary by the number of hours worked that week. As a result, the regular rate of pay “fluctuates” depending on how many hours he or she works in a given week. Therefore, under this method, an employee may be paid a half time rate for the overtime hours they work. Is this Allowed? In short, no. Not in Pennsylvania. While the Fair Labor Standards Act (“FLSA“), a federal statute, allows employers to use this method, the PA Supreme Court opinion holds that the Pennsylvania Minimum Wage Act (“PMWA“) does not. The Court ruled that the fluctuating work week method, which allows employees to be paid at lower overtime rates the more hours they work, violates the PMWA’s requirement that employers pay overtime compensation of at least one and a half times an employee’s regular rate for all hours worked in excess of 40 hours in a work week. While the FLSA establishes a “national floor” under which wage protections cannot drop, individual states may enact greater protections under their own laws. The PA Supreme Court Opinion notes that the PMWA, despite being mostly modeled by the FLSA, is silent about whether the fluctuating work week method is permissible. The PA Supreme Court chose to view this silence as an intent to reject the .5 multiplier utilized under the fluctuating work week method in favor of a 1.5 multiplier. Thus, the Court rejected GNC’s use of the .5 multiplier for purposes of overtime pay calculation, affirming an earlier decision by the Pennsylvania Superior Court. If you are concerned that your overtime compensation is being calculated improperly, please contact us for a private consultation. Posted by Taylor Gillan. Taylor is an associate with Feinstein Doyle Payne & Kravec, LLC, whose practice areas include labor and employment, education, and class action cases. She represents clients in individual employment law matters, including claims related to the Family Medical Leave Act (FMLA) and federal employment discrimination statutes.
CBD (Cannabidiol) November 8, 2019 CBD Products. Hard-working Americans Across the Country Are Losing Their Jobs After Using CBD CBD, or cannabidiol, is a chemical found in hemp that is being sold in a variety of forms. Those products include pills, oils, creams and tinctures, and are promoted as having near-miraculous health benefits for a myriad of conditions.[1] Therefore, although cannabidiol is chemically similar to THC, the substance in marijuana that gets you high, CBD does not have the same psychoactive effects of THC. Prior to 2019, all extracts of hemp, including CBD and THC, fell within the definition of marijuana and were illegal drugs under Federal Law.[2] After Congress passed the Agricultural Improvement Act of 2018 (a/k/a 2018 Farm Bill), hemp-derived products that contain less than 0.3% THC were legalized, allowing them to be manufactured and sold nationwide. However, despite claims that hemp-derived oils and CBD products sold legally contain less than 0.3% THC or may be “THC-Free,” many people taking CBD Products are failing their employer’s random drug tests. Employees who have been reprimanded or terminated have been the subject of many news articles nationwide [3], and lawsuits have been filed against the companies who made the CBD for this and other reasons [4]. FDPK represents people who have been harmed after taking CBD products. If you failed your employer or former’s employer’s drug test after using CBD Products, contact us for a confidential, free evaluation of any potential lawsuit you may have. Ed Feinstein or Wyatt Lison would be pleased to speak with you. _________________ [1] The New York Times. October 16, 2019. “What Are the Benefits of CBD?” [https://www.nytimes.com/2019/10/16/style/self-care/cbd-oil-benefits.html] [2] U.S. Drug Enforcement Administration. “Clarification of the New Drug Code (7350) for Marijuana Extract” [3] Including: Arizona: ABC Action News. June 9, 2019. “Can Using CBD Products Cost Someone Their Job?“ Illinois: ABC 13 Eyewitness News. September 26, 2019 “School Bus Driver Warns of CBD Use After Failing Drug Test, Losing Job” Ohio: WLWT5 News. November 7, 2019. “Dayton Police Officer Dies Days After Being Shot While Serving Warrant” Texas: Fort Worth Star-Telegram. September 19, 2019. “Don’t Get Lost in the Weeds. Using Legal CBD Products in Texas Could Cost You a Job” Utah: 2KUTV News. GetGephardt Investigations. November 6, 2019. “Fired for CBD: Employees Have Little Recourse If They’re Sacked for a Positive Drug Test” [4] Including: Just Brands USA. Go By Truck Global News. November 6, 2019. “Trucker Sues CBD Gummy Company After Losing His Job” Diamond CBD. Cannabis Network News. October 15, 2019. “Diamond CBD Sued in Class-Action Lawsuit for Mislabeled CBD Products” Hemp Bombs. The National Law Review. September 30, 2019. “CBD Industry Beware: The False Labeling Class Action has Arrived” Dixie X. Transport Topics. December 20, 2018. “Fired Truck Driver Sues Cannabidiol Company After Using Product”
FMLA for IEP Meetings August 16, 2019 DOL: Employees May Use Intermittent FMLA for Children’s Special Education Meetings (IEP Meetings) The Department of Labor (“DOL”) issued an opinion letter last week concluding that employees may use Family Medical Leave Act (“FMLA”) leave to attend their children’s Individualized Education Program (“IEP”) meetings. The August 8, 2019 opinion letter addressed the matter of a woman whose employer approved her request for intermittent FMLA leave to take her two children to medical appointments, but would not approve her request to use the leave to attend her children’s IEP meetings. The woman’s two children had serious health conditions as defined by the FMLA, for which the school provided pediatrician-prescribed occupational, speech, and physical therapy. Teachers and therapists working with her children held IEP meetings four times per year to review their educational and medical needs and progress, review recommendations made by the children’s doctors, and make recommendations for additional therapy. The DOL determined that the woman’s need to attend these IEP meetings was a qualifying reason for taking intermittent FMLA leave. Under the FMLA, an eligible employee of a covered employer may take up to twelve weeks of job-protected, unpaid FMLA leave per year to care for a family member with a serious health condition. The DOL concluded that the woman’s participation in the IEP meetings constituted care for family members with serious health conditions, as “to care for” family members includes making arrangements for changes in their care. The DOL also confirmed that the children’s doctor did not need to be present for the woman to qualify for FMLA leave. While the determination specifically referred to IEP meetings, it is not limited to such meetings according to the DOL. Rather, it also applies to any meetings held pursuant to the Individuals with Disabilities Education Act (“IDEA”) and any applicable state or local laws, regardless of the terms used for those meetings. DOL opinion letters are guidance documents. While they are not binding on the courts, they explain the DOL’s position on how the particular laws the DOL enforces apply in specific circumstances. If you are concerned that your FMLA leave request has been improperly denied, or you are having trouble getting employer approval to attend your child’s IEP meetings, please contact Ed Feinstein, Elizabeth Rabenold or Taylor Gillan for a confidential consultation. Posted by Taylor Gillan. Taylor is an associate with Feinstein Doyle Payne & Kravec, LLC whose practice areas include labor and employment, education, and class action cases. She represents clients in individual employment law matters including claims related to the Family Medical Leave Act (FMLA) and federal employment discrimination statutes.
Class Action Settlement May 24, 2017 Class Action Settlement – Short, et al. v. Churchill Benefit Corporation/Yurcor Daniel Short, et al. v. Churchill Benefit Corporation dba Yurcor; Framestore, Inc.; Richard McCann; and Mark Ticar Case No. 1:14-cv-04561 United States District Court for the Eastern District of New York Bill Payne and Pamina Ewing are pleased to announce that the court has approved the class action settlement in Short, et al. v. Churchill Benefit Corporation, et al. Following a May 23, 2017 hearing, the court found the settlement to be fair, reasonable and adequate; certified the class for settlement purposes; and that the attorneys’ fees are reasonable. FDPK and its co-counsel, The Brualdi Law Firm, P.C., Grebow & Rubin, LLP, and Schwartz, Steinsapir, Dohrmann & Sommers, LLP, represent Mr. Short and employees of Churchill Benefit Corporation dba Yurcor and Framestore, Inc. The class action alleged that the employers did not properly communicate the pay rate for Yurcor employees and as a result they were not paid their full pay rate and were improperly misclassified as independent contractors. The Settlement Class is defined as follows: The Settlement Class shall include all individuals who worked as an Artist for or through Yurcor at Framestore in the State of New York during the time periods specified below and who were paid for services rendered to Framestore by Yurcor and who had what has been termed “Administrative Overhead” costs deducted from their pay. The Settlement Class Period shall commence six (6) years prior to July 30, 2014 and continue through the date the Court grants preliminary approval of the Settlement (February 10, 2017). Click here to review the Memorandum & Order of Preliminary Settlement Approval.
Sex Discrimination Rule June 17, 2016 Office of Federal Contract Compliance Programs Publishes New Sex Discrimination Rule. On June 15, 2016, the US Department of Labor Office of Federal Contract Compliance Programs (OFCCP) published its final new sex discrimination rule. The new rule outlines obligations certain federal contractors and subcontractors must meet under Executive Order 11246 and its amendments. The rule will go into effect on August 15, 2016. Prior to the publication of this new rule, the OFCCP Sex Discrimination Guidelines had not been significantly updated since 1970. Federal anti-discrimination law, by contrast, has changed dramatically in the intervening decades. The June 15, 2016 OFCCP Rule brings the rules for federal contractors and subcontractors in line with current law. The new sex discrimination rule highlights several important points. The OFCCP estimates that more than 30 million women are employed by federal contractors or subcontractors. To put this in context, in 2010 the Department of Labor estimated that only 66 million women were employed in the U.S. Federal contractors have certain obligations that go beyond what the law requires of private companies. For example, one Executive Order signed by President Obama in 2014 prohibits federal contractors from retaliating against employees who discuss their salaries; another prohibits federal contractors from discriminating against their employees based on sexual orientation. Employees of federal contractors who believe that their employer is violating its obligations under Executive Order 11246 may file a complaint with the OFCCP. The new sex discrimination rule also highlights several key areas where gender discrimination in the workplace persists, including sex segregation within particular occupations (notably the construction trades), wage disparities (worse for women of color and women with disabilities), pregnancy and caregiver discrimination (worst among low income employees), sexual harassment (particularly in fields where women are under-represented, from construction to the tech industry, and sex-stereotyping. If you are concerned that have been discriminated against because of your gender, please contact Edward Feinstein or Deborah Marcuse for a confidential consultation. Posted by Deborah K. Marcuse.
New Overtime Rule May 25, 2016 New Overtime Rule Expected to Benefit Millions of Employees On May 23, 2016, the United States Department of Labor (DOL) issued a new overtime rule under the Fair Labor Standards Act (FLSA). The new overtime rule is expected to automatically extend overtime pay eligibility to 4.2 million salaried workers. It will entitle most salaried white collar workers earning less than $913 a week ($47,475 a year) (“salary threshold”) to overtime pay if they work more than 40 hours in a week. The increase will go into effect December 31, 2016. The new rule also requires that the salary threshold be automatically updated on January 1, 2020 in order to ensure that the benefits of the new rule are not lost by time and inflation. Under the new rule, an employer may use bonuses and incentive payments to satisfy part of the standard salary threshold if: the bonuses and incentives total no more than 10% of the employee’s regular compensation; the bonuses are non-discretionary (which means they are promised and must be paid at a fixed rate); and the payments must generally be made on a quarterly basis. The DOL published questions and answers about its new final overtime rule at: https://www.dol.gov/whd/overtime/final2016/faq.htm The new rule does not change the “duties” test used by employers to determine whether white collar salaried workers that earn more than the salary threshold are eligible for overtime pay. That exemption is available when a salaried employee holds a bona fide executive, administrative, professional, computer, or outside sales position. These exemptions are sometimes referred to as “white collar” exemptions. Information about white collar exemptions may be found in DOL Wage and Hour Division (WHD) Fact Sheets (published in 2009): Executive Exemption: https://www.dol.gov/whd/overtime/fs17b_executive.pdf Administrative Exemption: https://www.dol.gov/whd/overtime/fs17c_administrative.pdf Professional Exemption: https://www.dol.gov/whd/overtime/fs17d_professional.htm Computer-related Occupations Exemption: https://www.dol.gov/whd/overtime/fs17e_computer.pdf Outside Sales Exemption: https://www.dol.gov/whd/overtime/fs17f_outsidesales.pdf The information provided here is a brief summary of hundreds of pages of regulatory guidance. It is not intended to provide legal advice to a specific individual with an individual problem. If you have questions about whether you are entitled to overtime now or beginning January 1, 2017, please contact Ed Feinstein or Deborah Marcuse.
Sex Discrimination April 28, 2016 FDPK’s Deborah Marcuse wins Class Certification in $250 Million Sex Discrimination Case U.S. District Court Certifies Female Sales Representative’s Nationwide Equal Pay Act Sex Discrimination Case Against Pharma Behemoth Merck & Co., Inc. Deborah Marcuse, co-lead counsel in $250 million sex discrimination lawsuit The women in Smith, et al. v. Merck & Co., Inc., 3:13-cv-02970 (D.N.J.), a $250 million gender bias class action, scored a victory on April 27, 2016. Judge Michael A. Shipp of the U.S. District Court in New Jersey conditionally certified a class of current and former female sales representatives challenging sex discrimination. This important ruling paves the way for thousands of women throughout the country to join the lawsuit. Click here to review the Smith v. Merck Memorandum Opinion. Judge Shipp’s ruling concluded that “[t]he information submitted by Plaintiffs shows that the sales representatives had similar responsibilities; that named plaintiffs were paid less than some allegedly similarly situated males; and that compensation decisions, although based in part on input from some direct managers, were finalized by a central, common office.” The Court also cited statistical evidence the Plaintiffs had submitted that demonstrated that female sales reps earned on the average 1.4% less per year than males in the same roles. Based on this evidence, the Court concluded that the lawsuit should go forward as a collective action. Deborah K. Marcuse of Feinstein Doyle Payne & Kravec, LLC is co-lead counsel for Plaintiffs and the class in Smith v. Merck, as well as another nationwide gender class action filed on behalf of female sales representatives at Forest Pharmaceuticals. That case, Barrett et al. v. Forest Laboratories, et al. (SDNY), was conditionally certified in 2015. If you are concerned that your employer is not paying you the same as your male counterparts for performing the same duties, please contact Edward Feinstein or Deborah Marcuse for a confidential consultation. Posted by Deborah K. Marcuse.
Recover Unpaid Wages September 2, 2015 Recover Unpaid Wages – Workers Owed Wages This summer the federal government launched an online tool called Workers Owed Wages (“WOW”) to help thousands of workers to recover unpaid wages. The United States Department of Labor’s Wage and Hour Division (“WHD”) investigates violations of minimum wage and overtime laws by employers. When the WHD finds violations – such as an employer paying its workers less than $7.25 per hour or not paying time-and-a-half for working more than 40 hours in one week – the government often may recover unpaid wages on behalf of these employees. In 2014, the WHD recovered over $240 million owed to more than 270,000 workers nationwide. In many circumstances, it is easy for the WHD to distribute the recovered wages to the rightful employees. But employees in certain sectors of the economy (like agriculture and fast food) are often more difficult to track down because their employment is temporary, seasonal, or short-lived, which is why the WHD developed WOW. A worker who believes that he or she is owed back wages collected by the WHD may search the database to recover unpaid wages by answering a series of simple questions in English or Spanish to find out if the government is holding unpaid wages collected on the worker’s behalf. The WHD reports that “[I]n California alone, there are approximately $14 million dollars waiting to be collected by some 21,000 workers. And there are many millions of dollars in back wages still waiting to be collected by workers nationwide.” Since its launch earlier this year, WOW helped workers to recover unpaid wages totaling more than $800,000. Workers should check the WOW database sooner rather than later because, after three years, the law requires WHD to send the uncollected money to the U.S. Treasury, where it can be spent by the government. If your employer has failed to pay you for all of the hours you worked, please contact the employment lawyers at Feinstein Doyle Payne & Kravec, LLC. Ask for Ed Feinstein or Sarah Martin (412-281-8400).
Sexual Orientation Discrimination July 27, 2015 EEOC Holds that Sexual Orientation Discrimination is Illegal Under Title VII On July 15, 2015, the Equal Employment Opportunity Commission (“EEOC”) issued an historic administrative decision stating that sexual orientation discrimination by an employer is illegal under Title VII of the Civil Rights Act of 1964 (“Title VII”). Click here to review the decision: EEOC Sexual Orientation Discrimination Decision The EEOC’s decision states that if an employer makes an adverse employment decision on the basis of an employee’s sexual orientation, the employer is violating the Civil Rights Act. Sexual orientation discrimination is a type of sex discrimination, and is explicitly prohibited under Title VII. “[S]exual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” The EEOC provided a simple hypothetical situation to explain its position: A lesbian female employee and a straight male employee both display pictures of their wives on their desks. If the employees’ boss suspends the woman because she had the photo on her desk, but does not do the same to her male co-worker, she may allege a charge of discrimination by claiming that her boss wouldn’t have suspended her if she were a man with a wife. While the administrative decision provides clear insight into the EEOC’s interpretation of Title VII, at this time the decision is not binding on any claim made by non-federal employees. Nonetheless, courts may likely be persuaded by the EEOC’s decision when considering the discrimination claims of private sector employees. If courts do adopt the EEOC’s interpretation of sexual orientation discrimination, this decision should come as a relief to LGBTQ residents of Western Pennsylvania. Until this decision, no federal or state law made it illegal for employers to fire, harass, or refuse to hire LGBTQ workers on the basis of their sexual orientation. The City of Pittsburgh and Allegheny County, along with several other Eastern Pennsylvania municipalities, have had local Human Relations Acts in place for several years that prohibit this type of discrimination against workers. Now, through the EEOC, LGBTQ residents of Westmoreland, Fayette, and Beaver Counties (to name just a few) have a way to fight workplace sexual orientation discrimination. If you are employed in Western Pennsylvania and believe you are being discriminated against by your employer because of your sexual orientation, please contact FDPK’s employment lawyers. Ask for Ed Feinstein or Sarah Martin (412-281-8400). Posted by Sarah Martin, July 27, 2015.
Independent Contractors June 19, 2015 Independent Contractors: California Labor Ruling that Uber Driver is an Employee June 19, 2015. The California Labor Commissioner issued a decision earlier this month stating that an Uber Driver is not an independent contractor. The decision awarded reimbursement of business expenses to an Uber Technology driver. Click here to review the Labor Commissioner’s Decision. California law requires employers to reimburse employees for business expenses incurred while working. Independent contractors are not reimbursed for business expenses. Uber is an American transportation company that connects customers who need rides with a fleet of drivers through a mobile app. The Uber mobile app allows consumers to submit a trip request which is then routed to drivers. Uber claims to be less expensive and more efficient than a traditional taxi or car service. Services are paid via credit card when customers register for an account. Uber classifies its drivers as independent contractors. However, according to the recent decision by the California Labor Commissioner, Uber would not exist without its drivers. In addition, because the company is “involved in every aspect of the operation,” the drivers meet the traditional legal standard of an employee and are not independent contractors. On June 17, 2015, Uber appealed the California Labor Commissioner’s decision to the Superior Court of California. If the court affirms the Labor Commissioner’s decision, the door has been opened to Uber drivers to demand not only business expense reimbursement, but also payment of overtime and compensation for their work at the hourly minimum wage level. If your employer has classified you as an independent contractor, but you feel that you do the work of an employee, please contact the employment lawyers at Feinstein Doyle Payne & Kravec, LLC. Ask for Ed Feinstein or Sarah Martin (412-281-8400). Posted by Sarah Martin.
