Andrea M Kirshenbaum

December 01, 2014 | The Legal Intelligencer

While this column generally focuses on another statute enforced by the Wage and Hour Division of the U.S. Department of Labor (the Fair Labor Standards Act), employers should be aware of the dramatic increase in the number of cases being brought under the Family and Medical Leave Act (FMLA). According to the U.S. Courts' Public Access to Court Electronic Records (PACER) system, 951 FMLA cases have been filed in the first 10 months of 2014, making it all but certain that the number of FMLA cases filed this year will be the highest on record.

By Andrea M. Kirshenbaum

6 minute read

October 06, 2014 | The Legal Intelligencer

When the National Labor Relations Board's (NLRB) Office of General Counsel announced in August that it was authorizing complaints against both McDonald's store owners and corporate McDonald's USA LLC as so-called "joint employers," the employer community was abuzz, fearing wide-reaching application of the National Labor Relations Act (NLRA) to corporate entities, or franchisors, that were removed from the day-to-day operation of the business.

By Andrea M. Kirshenbaum

7 minute read

August 04, 2014 | The Legal Intelligencer

For today's connected workforce, the ability to do work anytime, anywhere is invaluable. Yet allowing non-exempt employees to perform work at home or other remote locations is fraught with legal risk. In fact, whenever non-exempt employees use employer-provided devices out of the office, it engenders thorny questions such as when the compensable workday began, and whether even commuting time might potentially be compensable. Employee "freedom" wrought by technology has created new legal challenges for employers in the form of wage-and-hour risks on multiple fronts. The rising tide of wage-and-hour litigation, coupled with the rapid growth of an increasingly technological and interconnected workforce, means that remote work off-the-clock claims may well be the next frontier in wage-and-hour litigation.

By Andrea M. Kirshenbaum

7 minute read

June 02, 2014 | The Legal Intelligencer

According to a report published by payroll services company ADP, class and collective action filings in federal court increased nearly 500 percent between 2001 and 2011. An analysis of court data reflects that, as of the date of the ADP report, 90 percent of all employment law class and collective actions filed across the country were wage-and-hour cases. An analysis conducted by Seyfarth Shaw of Federal Judicial Center data shows that, for the period ending March 31, federal wage-and-hour filings increased for the seventh straight year. Class and collective action claims are not just more numerous every year, they are more expensive too—according to a report published by NERA Economic Consulting, companies paid, on average, about $4.5 million to resolve a wage-and-hour case in 2013.

By Andrea M. Kirshenbaum and Kate A. Kleba

8 minute read

April 07, 2014 | The Legal Intelligencer

If, as Benjamin Franklin famously said, an ounce of prevention is worth a pound of cure, then it is no wonder employers are conducting wage-and-hour audits in record numbers. Wage-and-hour claims continue to outpace all other types of workplace litigation, and show no signs of abatement. In fact, according to the Federal Judicial Center, wage-and-hour claims under the federal Fair Labor Standards Act (FLSA) have increased more than 500 percent since 1990. Employers also are finding themselves increasingly embroiled in government enforcement activity—the U.S. Department of Labor's (DOL) Wage and Hour Division, for example, recovered nearly a quarter of a billion dollars in back wages in fiscal year 2013 on behalf of more than 260,000 workers.

By Andrea M. Kirshenbaum and Darren M. Creasy

9 minute read

February 03, 2014 | The Legal Intelligencer

On Jan. 10, conditional certification was granted to a nationwide collective action of some 1,750 human resources employees employed by Lowe's. The workers' allegation? That they were misclassified by the home improvement chain as "exempt" under the Fair Labor Standards Act (FLSA), and thus not paid overtime for hours worked more than 40 in a workweek.

By Andrea M. Kirshenbaum

8 minute read

February 03, 2014 | The Legal Intelligencer

On Jan. 10, conditional certification was granted to a nationwide collective action of some 1,750 human resources employees employed by Lowe's. The workers' allegation?

By Andrea M. Kirshenbaum

8 minute read

December 30, 2013 | The Legal Intelligencer

As another year draws to a close, many employers might be ready to put 2013 in their rear view mirrors. Never mind the continued and broad challenges they faced in the still-uncertain economic climate, many employers in 2013 contended with a sharp increase in wage-and-hour cases and government enforcement activity.

By Andrea M. Kirshenbaum

8 minute read

October 31, 2013 | The Legal Intelligencer

In the Federalist Papers, James Madison advocated for ratification of the Constitution, citing to the limited powers of the "general government," and stating that "the states, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction."

By Andrea M. Kirshenbaum

7 minute read

August 02, 2012 | The Legal Intelligencer

On June 28, the U.S. Court of Appeals for the Third Circuit provided guidance as to what test should be applied to assess potential joint employer liability under the Fair Labor Standards Act.

By Andrea M. Kirshenbaum

7 minute read