Monthly Archives: February 2019

Can your employer avoid overtime payments by using an adjustable pay scheme?

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In U.S. Department of Labor v. Fire & Safety Investigation Consulting Services, the Fourth Circuit addresses an overtime claim where the employer utilized a “blended” pay scheme that changed depending on the total hours worked in a two week pay period.


The FLSA requires that covered employers pay their employees “at a rate not less than one and one-half times the regular rate for any hours worked in excess of 40 hours per workweek. At issue in this case was the definition of an employee’s “regular rate.” Typically, the regular rate is the hourly rate that the employer pays the employee for the normal, non-overtime forty hour workweek. However, in some cases, employers may attempt to assert that their pay scheme is intended to cover the base pay for all overtime hours.

In this case, the Fourth Circuit rejects the employer’s argument, cautioning that employers should not reply upon “creative” pay schemes that retroactively calculate overtime and non-overtime components for the benefit of the employer.


https://law.justia.com/cases/federal/appellate-courts/ca4/18-1632/18-1632-2019-02-08.html

Can False Rumors Serve as the Basis for Claims of Sexual Harassment?

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In Parker v. Reema Consulting, the Fourth Circuit addresses a claim where a female subordinate alleges that she was subjected of repeated rumors of sleeping with her supervisor to secure a promotion.  Importantly, company managers participated in the spreading of the rumors. To state a claim under Title VII for a hostile work environment because of sex, the plaintiff must allege workplace harassment that (1) was “unwelcome”; (2) was based on the employee’s sex; (3) was “sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere”; and (4) was, on some basis, imputable to the employer.

In this case, The Fourth Circuit agrees that these sex based rumors can serve as the basis for a hostile environment claim and that the continuous nature of the harassment was sufficiently pervasive as to interfere in her work.

https://law.justia.com/cases/federal/appellate-courts/ca4/18-1206/18-1206-2019-02-08.html