Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, office, was quoted in Law360 Employment Authority, in “6 Major Rulings for Wage-Hour Attorneys So Far in 2024,” by Jon Steingart. (Read the full version – subscription required.)
Following is an excerpt:
6th Circ. Orders New Look at Reimbursing Pizza Drivers' Expenses
The Sixth Circuit held March 12 that neither an employer's "reasonable approximation" of pizza delivery drivers' expenses nor the Internal Revenue Service's mileage rate is a legally compliant method for calculating reimbursements to cover workers' outlays. …
The Sixth Circuit said FLSA regulations allow reasonable approximations when needed for calculating a worker's overtime rate so it's based on wages and doesn't factor in reimbursements. But permitting estimates for overtime determinations doesn't make using them for minimum wage compliance OK, the court said.
At the same time, the Sixth Circuit said IRS rates are also overly broad because they're based on a nationwide average. That doesn't meet the individualized precision required by the statute, which states that "every employer shall pay to each of his employees" at least the minimum wage, the court said.
The Sixth Circuit remanded the cases to the district courts, which are working with the parties to establish next steps.
Paul DeCamp, who represents employers as co-chair of Epstein Becker Green's wage and hour practice group, told Law360 that the Sixth Circuit's repudiation of both reimbursement schemes leaves businesses unclear on what a compliant practice is.
"The court really did not offer a particularly satisfying way of dealing with this," he said.
Business owners tend to be risk averse, DeCamp said. Reimbursing at the IRS rate may be the best strategy until more judicial guidance emerges because it tends to err on the high side, he said.
"Practically speaking, the IRS rate probably does offer as close to a safe harbor as you're going to get," he said. "That may be the practical path forward for employers, at least in the short term." …
Labor Law Violation Found in Wage-Hour Deposition Questions
The National Labor Relations Board held April 16 that a chemical manufacturer violated federal labor law when its attorney deposed an employee who filed a wage and hour lawsuit and asked questions about the worker's conversations with other union members. …
DeCamp told Law360 that the decision shows the NLRB taking up a supervisory role over a lawsuit in federal court that should be left to the judge overseeing the case.
"To the extent that the plaintiff's counsel in a wage and hour case feels that a line of questioning is improper and is starting to tread on the witness's [NLRA rights], that lawyer has the opportunity to object," he said. "It is not, in my view, appropriate for an agency that is external to the litigation — not involved in the litigation — to try to control the conduct of litigation."
Disputes over depositions happen all the time in litigation, he said.
"The courts are perfectly well-situated to address that kind of situation," he said.
The problem with the NLRB being on the lookout for potential labor law violations in depositions puts management-side attorneys in a bind as they do their job, which sometimes calls for conducting wide-ranging inquiries in response to a worker's lawsuit, he said.
"The idea that you could have lawyers in Fair Labor Standards Act litigation, ethically bound to advocate zealously for their clients, who meet the first two requirements of the Guess? framework ... be subject to second-guessing after the fact by an administrative law judge at the board?" he said. "That's just not tenable. You can't defend an FLSA action with your hands tied behind your back."
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