FLSA – Consumer Financial Services Watch

The Supreme Court Charts a Narrow Course in the Use of Statistical Evidence at Class Certification

Mar 30 2016

By April Boyer, Andrew C. Glass, Gregory N. Blase, Yamilet Hurtado and Eric W. Lee

The United States Supreme Court recently ruled in Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, — S. Ct. —, 2016 WL 1092414 (U.S. Mar. 22, 2016), as to when a plaintiff may use statistical sampling in seeking to certify a class. The decision was narrowly tailored to the specific facts and cause of action at issue in the matter. Thus, the Court declined to adopt a categorical rule, cautioning that the admissibility of such evidence must be made on a case-by-case basis. Nonetheless, business entities should carefully examine the Court’s guidance in Bouaphakeo, including the admonitions discussed herein.

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DOL Issues New Guidance on Independent Contractors

Sep 02 2015

By: Amy L. Groff

The misclassification of employees as independent contractors continues to be a hot issue and to receive attention at the state and federal levels. Recently, the U.S. Department of Labor, Wage and Hour Division (“DOL”) published new guidance addressing misclassification, emphasizing the broad scope of employment under the Fair Labor Standards Act (“FLSA”), and summarily concluding that most workers are employees covered by the FLSA. DOL plans to continue challenging these misclassifications through “robust” enforcement efforts across industries. Employers should expect scrutiny of their independent contractor classifications and should review their classifications to make sure they are appropriate.

U.S. Supreme Court Allows DOL Interpretation on Overtime for Mortgage Loan Officers

Mar 16 2015

By: Thomas H. Petrides, John L. Longstreth

On March 9, 2015, the U.S. Supreme Court held that the U. S. Department of Labor (DOL) could issue a controversial “Administrator’s Interpretation,” which had concluded in 2010 that 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). The Supreme Court reversed a ruling of the U.S. Court of Appeals for the D.C. Circuit that had struck down the DOL administrative ruling. The Mortgage Bankers Association had challenged the 2010 Interpretation in court, arguing that because the DOL had previously issued an Opinion Letter in 2006 determining that loan officers could generally qualify as exempt from 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. However, the Supreme Court in a 9-0 decision ruled that because the 2006 DOL Opinion Letter was itself merely an interpretation of an existing rule and not a new rule with the force and effect of law, DOL could reverse its prior position and issue a new interpretation without a prior notice and comment rulemaking.

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