Class and collective action lawsuits asserting wage and hour claims continue to outpace all other types of employment litigation in the federal courts. The volume of such cases increases year after year, and there is nothing to suggest that the trend will reverse itself anytime soon. The plaintiffs' bar that specializes in this area of employment law continues to grow, and with each passing year gets more expert, creative and aggressive in pursuing class and collective action lawsuits under federal and state wage and hour laws.
The substantive class claims generally fall into one of two groups: (1) “improper exemption” claims, in which employees or former employees challenge an employer’s decision to classify them as “exempt” (claim for back overtime), or (2) “off-clock work” claims, in which employees or former employees allege that the employer failed to pay them for all compensable time (claim for back pay, including but not limited to overtime).
When claims like these are pursued on behalf of large groups of employees and former employees, the potential exposure increases dramatically, largely due to the increased number of claimants, but also partly due to the liquidated and statutory damages that are available under the Fair Labor Standards Act and most state wage and hour statutes. For this reason, educated plaintiffs' lawyers are always looking for the types of claims that lend themselves to large class application. These include challenges to exempt classifications, unpaid donning and doffing of required uniforms and safety equipment, missed meal breaks where the employer automatically deducts a lunch period from the paid workday, and even unpaid computer boot-up time. The latter claim has been very popular in the context of customer service call center employees alleging they must perform preliminary duties to be ready to take their first call at their scheduled shift start.
Another reason for the continued onslaught of such litigation is the ease with which plaintiffs' counsel are able to get a “class” certified, especially in collective actions under the FLSA. The standard in many federal courts for obtaining a “conditional” (that is, preliminary) certification of a collective action is relatively low, and absent the right facts, conditional certification can be a difficult issue for employers to win. Once the collective action is conditionally certified, the court orders that a notice be sent to all so-called “similarly situated” employees and former employees, inviting them to join the lawsuit.
Former employees, in particular, are more likely to accept the court’s “invitation.” With our troubled economy, there is a large supply of unhappy former employees who feel that they have nothing to lose, and it appears that this is contributing to the continued increase in wage and hour class and collective actions.
More than ever, there is significant value in being proactive when it comes to wage and hour compliance. Much can be done to lessen the chance of becoming a target defendant in wage and hour litigation, and the same proactive steps can also increase an employer’s ability to defend itself in litigation in the event that it must do so.
© 2010 Constangy, Brooks & Smith, LLC. All rights reserved.
Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A “Go To” Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by publications such as Chambers USA, Super Lawyers, and Top One Hundred Labor Attorneys in the United States. More than 100 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offi ces are located in Georgia, Florida, South Carolina, North Carolina, Tennessee, Alabama, Virginia, Massachusetts, Missouri, Illinois, Wisconsin, Texas and California. For more information, visit www.constangy.com.
Wednesday, February 17, 2010
Monday, January 4, 2010
Debit Cards
Homeowner policies provide up to $500 for unauthorized use of a credit, electronic transfer or debit card.
Federal Law does not treat Debit Cards the same as Credit Cards. This article allays some of those fears. if you go to the website you can review the 25 Institutions alluded to. Below is the FDIC link discussing this issue.
http://www.fdic.gov/consumers/consumer/news/cnfall09/debit_vs_credit.html
At the bottom of the site there is also a connection to 2009 Gift Card comparison Table.
Debit Card Users Now More Protected From Fraud, Study Says
CreditCards.com (11/20/09) ; Leptinsky, Andrea
Debit cards are now on a level playing field with credit cards in terms of fraud protection, according to Javelin Strategy & Research's 2009 Banking Identity Safety Scorecard. The report indicates that all 25 of the largest U.S. banks and credit unions have extended zero-liability protection to PIN, signature, and card-not-present transactions, which Javelin rates as a "major milestone for the industry." The top U.S. banks are additionally offering next-day replacement of stolen or lost debit cards. In the 1970s, the federal Truth in Lending Act law was changed to restrict an individual's liability for fraudulent charges on a credit card to $50, but about 10 years ago issuers started to voluntarily broaden the protection to include the first $50 as the threat of Internet fraud began to discourage consumers from using their cards. "Consumers don't just want to be protected by others, they want involvement in protecting their money and identity," says Javelin president James Van Dyke. "Inventive criminals continually update their methods, and banks must do the same." The Javelin report also notes that almost 90 percent of banks have made third-party security vendors available to customers for online safety, and have partnered with security companies to guarantee the online protection of their services.
Source: CreditCards.comhttp://www.creditcards.com/credit-card-news/zero-liability-debit-cards-1273.php
Thursday, December 31, 2009
ID Theft Threats to Watch in 2010
70 percent of all hacking happens internal to the company
Via BankInfoSecurity.com (12/29/09) ; Field, Tom
Identity Theft Resource Center executive director Jay Foley identifies a number of ID theft trends and threats to watch for in 2010. He notes that the most prominent ID theft story in 2009 was the Heartland security breach orchestrated by Albert Gonzales, which involved the compromise of more than 130 million credit and debit card accounts. Foley says that although Gonzales was caught, many other young hackers are going to transition from hacking just for fun to hacking to make money. "We are seeing kids in the high school level who are setting up Web sites, selling products that don't exist, taking the credit cards, and going to town on them," he warns. Foley categorizes the payment industry and the payment services industry as the sectors most vulnerable to ID theft, because the companies that process debit and credit card transactions are the most appealing targets. "If a thief can get into your software and can get into your data, they have ready cash right there at their fingertips," he notes. Foley says information security professionals have to come to terms with the fact that the biggest threat is from insiders rather than outsiders. "The numbers ... have said for the past eight or nine years that 70 percent of all hacking happens internal to the company," he notes.Source: BankInfoSecurity.com
TIME TO REVIEW YOUR FIDELITY LIMITS
Via BankInfoSecurity.com (12/29/09) ; Field, Tom
Identity Theft Resource Center executive director Jay Foley identifies a number of ID theft trends and threats to watch for in 2010. He notes that the most prominent ID theft story in 2009 was the Heartland security breach orchestrated by Albert Gonzales, which involved the compromise of more than 130 million credit and debit card accounts. Foley says that although Gonzales was caught, many other young hackers are going to transition from hacking just for fun to hacking to make money. "We are seeing kids in the high school level who are setting up Web sites, selling products that don't exist, taking the credit cards, and going to town on them," he warns. Foley categorizes the payment industry and the payment services industry as the sectors most vulnerable to ID theft, because the companies that process debit and credit card transactions are the most appealing targets. "If a thief can get into your software and can get into your data, they have ready cash right there at their fingertips," he notes. Foley says information security professionals have to come to terms with the fact that the biggest threat is from insiders rather than outsiders. "The numbers ... have said for the past eight or nine years that 70 percent of all hacking happens internal to the company," he notes.Source: BankInfoSecurity.com
TIME TO REVIEW YOUR FIDELITY LIMITS
Tuesday, February 12, 2008
GM Posts Biggest Annual US Auto Loss
Since UAW is one of our largest accounts you may find this article of interest. It underscores the continued difficulties faced by the US auto makers.
DETROIT - General Motors Corp. reported a $38.7 billion loss for 2007 on Tuesday, the largest annual loss ever for an automotive company, and said it is making a new round of buyout offers to U.S. hourly workers in hopes of replacing some of them with lower-paid help.
The earnings report and buyout offer came as GM struggles to turn around its North American business as the economy weakens.
But GM Chairman and Chief Executive Rick Wagoner said that the company made significant progress in 2007, reducing structural costs in North America, negotiating a historic labor agreement and growing aggressively in Latin America and Asia.
The Detroit-based automaker said it was offering a new round of buyouts to all 74,000 of its U.S. hourly workers who are represented by the United Auto Workers.
GM won't say how many workers it hopes to shed, but under its new contract with the UAW, it will be able to replace up to 16,000 workers doing non-assembly jobs with new employees who will be paid half the old wage of $28 per hour.
Ford Motor Co. and Chrysler LLC already have announced similar buyout offers.
GM shares fell 71 cents, or 2.6 percent, to $26.41 in premarket trading.
GM's annual loss of $38.7 billion largely was due to a third-quarter charge related to unused tax credits.
The 2007 loss topped GM's previous record in 1992, when the company lost $23.4 billion because of a change in health care accounting, according to Standard & Poor's Compustat.
Excluding the tax charge and other special items, GM lost $23 million, or 4 cents per share, for the year, compared with a net income of $2.2 billion in 2006, beating Wall Street's expectations. Analysts polled by Thomson Financial expected GM to post a full-year loss of 95 cents per share.
For the fourth quarter, GM posted a loss of $722 million, or $1.28 per share, in the fourth quarter, compared with a net income of $950 million in the year-ago quarter. Fourth-quarter charges included $622 million to Delphi Corp., GM's former parts division, for its restructuring efforts.
GM reported $181 billion in revenues for the year, down from $206 billion in 2006. Its automotive business saw record automotive revenues of $178 billion in 2007, up $7 billion from a year ago thanks to growth in emerging markets and favorable exchange rates.
GM was profitable in every region outside North America. GM's Latin America, Middle East and Africa division reported a record $1.3 billion in earnings, up 140 percent from 2006. GM's Asia Pacific division earned $744 million, up from $403 million in 2006, while GM Europe reported a profit of $55 million, down from a profit of $357 million in 2006.
But GM's North American division continued to struggle, posting a $1.5 billion loss for the year, nearly identical to its $1.6 billion loss in 2006. GM's North American division also reported a loss of $1.1 billion in the fourth quarter, compared with a loss of $129 million in the year-ago quarter.
Wagoner said the weak U.S. economy and high commodity prices hurt turnaround efforts in North America. He said GM's decision to reduce low-profit sales to daily rental companies by 110,000 in 2007 also affected U.S. sales.
"We're pleased with the positive improvement trend in our automotive results, especially given the challenging conditions in important markets like the U.S. and Germany, but we have more work to do to achieve acceptable profitability and positive cash flow," Wagoner said in a statement.
GM's results also were dragged down by its 49 percent stake in GMAC Financial Services, which lost $2.3 billion in 2007. GM reported a $1.1 billion loss attributed to GMAC.
GM barely retained its title as the world's largest automaker in 2007, selling just 3,000 more vehicles than Toyota Motor Corp. GM sold a total of 9,369,524 vehicles worldwide, up 3 percent from the year before.
___
Suggested by Cheri Brewer
DETROIT - General Motors Corp. reported a $38.7 billion loss for 2007 on Tuesday, the largest annual loss ever for an automotive company, and said it is making a new round of buyout offers to U.S. hourly workers in hopes of replacing some of them with lower-paid help.
The earnings report and buyout offer came as GM struggles to turn around its North American business as the economy weakens.
But GM Chairman and Chief Executive Rick Wagoner said that the company made significant progress in 2007, reducing structural costs in North America, negotiating a historic labor agreement and growing aggressively in Latin America and Asia.
The Detroit-based automaker said it was offering a new round of buyouts to all 74,000 of its U.S. hourly workers who are represented by the United Auto Workers.
GM won't say how many workers it hopes to shed, but under its new contract with the UAW, it will be able to replace up to 16,000 workers doing non-assembly jobs with new employees who will be paid half the old wage of $28 per hour.
Ford Motor Co. and Chrysler LLC already have announced similar buyout offers.
GM shares fell 71 cents, or 2.6 percent, to $26.41 in premarket trading.
GM's annual loss of $38.7 billion largely was due to a third-quarter charge related to unused tax credits.
The 2007 loss topped GM's previous record in 1992, when the company lost $23.4 billion because of a change in health care accounting, according to Standard & Poor's Compustat.
Excluding the tax charge and other special items, GM lost $23 million, or 4 cents per share, for the year, compared with a net income of $2.2 billion in 2006, beating Wall Street's expectations. Analysts polled by Thomson Financial expected GM to post a full-year loss of 95 cents per share.
For the fourth quarter, GM posted a loss of $722 million, or $1.28 per share, in the fourth quarter, compared with a net income of $950 million in the year-ago quarter. Fourth-quarter charges included $622 million to Delphi Corp., GM's former parts division, for its restructuring efforts.
GM reported $181 billion in revenues for the year, down from $206 billion in 2006. Its automotive business saw record automotive revenues of $178 billion in 2007, up $7 billion from a year ago thanks to growth in emerging markets and favorable exchange rates.
GM was profitable in every region outside North America. GM's Latin America, Middle East and Africa division reported a record $1.3 billion in earnings, up 140 percent from 2006. GM's Asia Pacific division earned $744 million, up from $403 million in 2006, while GM Europe reported a profit of $55 million, down from a profit of $357 million in 2006.
But GM's North American division continued to struggle, posting a $1.5 billion loss for the year, nearly identical to its $1.6 billion loss in 2006. GM's North American division also reported a loss of $1.1 billion in the fourth quarter, compared with a loss of $129 million in the year-ago quarter.
Wagoner said the weak U.S. economy and high commodity prices hurt turnaround efforts in North America. He said GM's decision to reduce low-profit sales to daily rental companies by 110,000 in 2007 also affected U.S. sales.
"We're pleased with the positive improvement trend in our automotive results, especially given the challenging conditions in important markets like the U.S. and Germany, but we have more work to do to achieve acceptable profitability and positive cash flow," Wagoner said in a statement.
GM's results also were dragged down by its 49 percent stake in GMAC Financial Services, which lost $2.3 billion in 2007. GM reported a $1.1 billion loss attributed to GMAC.
GM barely retained its title as the world's largest automaker in 2007, selling just 3,000 more vehicles than Toyota Motor Corp. GM sold a total of 9,369,524 vehicles worldwide, up 3 percent from the year before.
___
Suggested by Cheri Brewer
Monday, February 11, 2008
Cover-Pro from Philadelphia Insurance Companies
Philadelphia Insurance Companies is offering comprehensive professional liability coverage to a variety of professions including computer consultants, management consultants, career coaches, marketing consultants, interior designers, telecommunications consultants and many more. The policy addresses claims filed by clients resulting from negligent acts, errors or omissions and Personal Injury arising from the provision of Professional Services.
Friday, February 8, 2008
In their ordinary business relationships with clients, agents are not fiduciaries
The Ohio Court of Appeal recently provided some comfort to insurance agents and brokers regarding their responsibilities to clients with whom they have ordinary business relationships. This case demonstrates that insurance agents and brokers who wish to avoid litigation should make it clear to clients:
-That they are not a fiduciary for the insured.
-That they are simply carrying out the client's instructions and make no guarantees about the adequacy of the insurance.
-That they do not provide expert advice concerning the adequacy of limits.
-That an insured should carefully review the policy wording and declarations to determine that the policy limits are adequate.
-That an insured who is unsure of the adequacy of his or her limits should retain an expert in repair and reconstruction who can determine how much coverage is needed.
-That agents should protect themselves by carefully documenting the nature of their agent-client relationships.
Read more
-That they are not a fiduciary for the insured.
-That they are simply carrying out the client's instructions and make no guarantees about the adequacy of the insurance.
-That they do not provide expert advice concerning the adequacy of limits.
-That an insured should carefully review the policy wording and declarations to determine that the policy limits are adequate.
-That an insured who is unsure of the adequacy of his or her limits should retain an expert in repair and reconstruction who can determine how much coverage is needed.
-That agents should protect themselves by carefully documenting the nature of their agent-client relationships.
Read more
Wednesday, February 6, 2008
We'll Believe It When We See It.
D.C. Adopts New Standards for Walkways at Construction Sites
February 6, 2008
D.C. Mayor Adrian Fenty has announced new safety standards to protect pedestrians walking by construction sites.
Fenty says the changes end "the era when sidewalks were blocked for months on end." The new policy requires that construction sites preserve existing walkways as closely as possible. The walkways must either be covered or protected.
Developers are required to submit traffic control plans to the city Transportation Department and receive city permission to temporarily use public space as part of a construction site.
The standards were developed after a study of those used in other cities.
Information from: The Washington Post
February 6, 2008
D.C. Mayor Adrian Fenty has announced new safety standards to protect pedestrians walking by construction sites.
Fenty says the changes end "the era when sidewalks were blocked for months on end." The new policy requires that construction sites preserve existing walkways as closely as possible. The walkways must either be covered or protected.
Developers are required to submit traffic control plans to the city Transportation Department and receive city permission to temporarily use public space as part of a construction site.
The standards were developed after a study of those used in other cities.
Information from: The Washington Post
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