"Not Willful" Is Not The Same As "No Bad Faith" - A Lesson In FLSA Liquidated Damages

Kollman & Saucier
Kollman & Saucier
08/06/2019
After a jury verdict was returned in favor of a group of Baltimore nightclub exotic dancers for their claims under the Fair Labor Standards Act and Maryland wage and hour law against the nightclub owner and the two nightclub entities, the presiding Magistrate Judge also awarded liquidated damages to the plaintiffs.  The club owner appealed on various grounds including questioning how the judge was able to award liquidated damages when the jury had...
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Requiring Employee to Work While on FMLA: Bad idea. Duh.

Darrell VanDeusen
Darrell VanDeusen
05/20/2019
I have been updating my book on the FMLA/Wage & Hour Law (available through LexisNexis).  But enough gratuitous self-promotion.  The point is that in doing so I get to read a whole mess of recent FMLA decisions.  A few of them make me shake my head at the decision-making skills of some members of our species.  I share one of those with you, dear reader. It would seem self-evident, but employers sometimes forget that the concept of leave...
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E-Scooters... What's An Employer To Do?

Kollman & Saucier
Kollman & Saucier
12/14/2018
I remember driving downtown to visit a client this past summer.  I was waiting at the traffic light at Light and Lombard streets and must have seen at least a dozen people riding by on scooters.  For better or worse, I had no clue until that day that electric scooters (or e-scooters) were a thing. They have quickly descended upon many major cities.  They are app-based scooters that permit a user to ride across the city, up to 15 miles per hour,...
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Losing Out On Voluntary Overtime Chances Can Be Tangible, Adverse Action.

Employers are by now well-versed in the concept that under Title VII, an employer is strictly liable for a supervisor's harassment when the harassment results in a tangible employment action.  The obvious employment actions include termination, demotion, failure to promote, reassignment with significantly different responsibilities, etc.  The Fourth Circuit Court of Appeals, in Ray v. International Paper Co., No. 17-2241 (4th Cir. 2018), added to...
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When is Enough Harassment Investigation Enough?

Over my career, I have dealt with my share of “you can’t make this up” situations.  The kind where outrageously offensive or harassing workplace behavior has occurred, and the employer needs to – and wants to – figure out who did it and take steps to stop it from happening again. Indeed, that’s one of the benefits of representing management:  you can have the chance to assist in helping change culture (even if that “culture” appears...
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Updated Guidance For The Fiduciary Rule

Kollman & Saucier
Kollman & Saucier
05/29/2017
On May 22, 2017, the Department of Labor issued updated guidance for the fiduciary rule.  You will remember that the fiduciary rule imposes certain obligations on investment advisors, and deems them fiduciaries towards their customers. The rule goes into effect on June 9, 2017, with a transition period until January 1, 2018.  At that time, further requirements take effect.  For those advisors who have not yet familiarized themselves with the new...
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Economic Realities May Make HR Manager Liable for FMLA Violation

Darrell VanDeusen
Darrell VanDeusen
03/22/2016
Addressing the issue for the first time, the Second Circuit has held that supervisors can be individually liable for violations of the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq.  Graziadio v. Culinary Inst. of America, 2016 U.S. App. LEXIS 4861 (2d Cir. March 17, 2016).  In so doing, the court joins other federal appellate courts that have applied the Fair Labor Standards Act’s (FLSA), “economic realities” test to...
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More On Joint Employer Status From The Department Of Labor

Earlier this week, the Wage and Hour Division (WHD) of the Department of Labor issued an Administrator's Interpretation No. 2016-01 (AI) on joint employment under the Fair Labor Standards Act (FLSA) and the Migrant Seasonal Agricultural Worker Protection Act (MSPA).  The guidance reconfirms existing WHD policy, which identifies common scenarios in which two or more employers jointly employ an employee and are thus jointly liable for compliance....
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Temporary Workers Entitled To Title VII Protections

The Third Circuit has joined the list of other federal courts (including the Fourth Circuit which covers Maryland, Virginia, West Virginia, North Carolina, and South Carolina) that have held that Title VII applies to claims raised by the temporarily assigned worker against the company operating the work site where assigned.   In other words, Title VII applies to temporary employment.  In Faush v. Tuesday Morning, Inc., No. 14-1452, (3d Cir. Nov....
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Are You Ever "Too Old" For Cereal? Kellogg's Thinks So. And Got In Trouble.

Kellogg USA finds itself facing a jury trial.  In McCartt v. Kellogg USA, Inc., No. 5:14-318-DCR (E.D. Ky. Oct. 14, 2015), a former sales representative, James McCartt, was over age 60 when he was fired in a corporate downsizing. He sued for age discrimination because his manager, Kevin Grzanka, had made an age based comment about his performance.  His unwise manager had said that Mr. McCartt was "too old and set in his ways" and that Kellogg and...
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