Delaware Employment Law Blog

The California Supreme Court issued its long-awaited decision in Brinker Restaurant Corp. v. Superior Court on April 12, 2012. The decision contains some very good news for employers regarding obligations relating to employee meal breaks and could have some significant implications for Delaware employers covered by Delaware's meal break law, 10 Del. C. § 707.

Background

Brinker Restaurant Corporation operates 137 restaurants in California, including Chili's Bar and Grill, Maggiano's Little Italy, Romano's Macaroni Grill and others. In 2002, a former employee brought a putative class action against Brinker on behalf of nearly 6,000 hourly restaurant employees. The complaint alleged that Brinker failed to provide rest and meal periods in accordance with California legal requirements, required employees to work off-the-clock during meal periods, and unlawfully altered their time records. The plaintiffs obtained class certification in the trial court on each of these claims, but the Court of Appeal reversed, holding that class certification was improper as a matter of law. The Supreme Court, in a unanimous decision, partially agreed and partially disagreed with both the trial court and the Court of Appeal.

Meal Periods

There were two distinct questions before the Supreme Court concerning meal periods. First, does an employer have a duty to ensure that a meal period is taken and thus violates the law if the employee does not in fact take a 30-minute duty-free break? To that question, the Supreme Court answered "no" - employers are not required to ensure that an employee performs no work during the meal period. Instead, the Supreme Court held that an employer satisfies its meal period obligations by:

• Relieving the employee of all duty for the period;
• Relinquishing control over the employee's activities;
• Permitting the employee a reasonable opportunity to take an uninterrupted meal period; and
• Neither impeding nor discouraging the employee from taking the meal period.

The Court cautioned that employers unlawfully discourage employees from taking meal breaks if they provide incentives for or encourage skipping breaks, coerce employees to forego them, or otherwise make it difficult for employees to take breaks, whether through scheduling or otherwise.

It is this ruling that has the most significance for Delaware employers. Under the Delaware meal break law, an employer "must allow" a 30 minute meal break to persons working 7 ½ or more consecutive hours. Like the California law, the break must be given after the first 2 hours of work, but unlike the California law, the Delaware statute imposes an additional restriction in that the meal break must be given "before the last 2 hours."

Based on the guidance from Brinker, as long as a Delaware employer "allows" the employee to take a meal break during the specified time, the employer need not require the break. If the employee, without any employer pressure, works through his or her break and is paid for it, that would not be a violation of the law. It should also be noted that the Delaware law does not mandate that the meal break be a paid break.

The second meal period question in Brinker concerned the timing of meal periods (the so-called "floating five-hour rule"): must meal periods be scheduled so that an employee is not working more than five hours either before or after the meal period? The Court answered "no" to this question too. The employees in Brinker were sometimes required to take their meal periods an hour into their shifts, such that they were working seven hours after the meal period.

The Court held that this practice was not unlawful and that there is no limit on the number of hours that can be worked after the meal period. Instead, it concluded that:

• Employees must be provided a 1st meal period at some time before the end of the 5th hour of work; and

• Employees who work 10 or more hours must be provided a 2d meal period before the end of the 10th hour of work.

Since the Delaware law is more specific as to when the break must occur, this holding has less significance for Delaware employers. For employees working 7 ½ consecutive hours, the meal break must be allowed no later than 5 hours after the beginning of the work day. Delaware law is silent on the need for a second break if the work day extends beyond 7 ½ hours.

Rest Periods

There were two questions regarding rest period rules. First, does California law require that the rest period be taken before the meal period is taken? The Court answered "no" to this question.

Second, what does the Wage Order mean when it says that employees have a right to a 10-minute rest period for each "four hour work period or major portion thereof"? The Court rejected Brinker's argument that "major portion" means 3-1/2 hours, and held instead that it means "more than two hours." Since Delaware has no rest period law at present, that ruling has no Delaware implications.

Off-the-Clock Work

The sole question regarding the off-the-clock work claim was whether class certification should have been granted or denied. In support of class certification, the plaintiffs had offered anecdotal evidence of "a handful of individual instances" of off-the-clock work. The Court held this evidence insufficient to establish a "uniform, company-wide policy" of allowing off-the-clock work. Instead, Brinker's written policy prohibited working off the clock.

Furthermore, Brinker's time records showing an employee was clocked out created a presumption that the employee was not working. Finally, an employer is liable for off-the-clock work only when it knew or should have known that the employee was performing work off the clock. The Court held that to rebut the time records and establish employer knowledge would require individual evidence and determinations. Therefore, liability could not be established on a class-wide basis, and class certification was improper.

Bottom Line

The Brinker decision is a welcome relief to employers because the California Supreme Court declined to impose strict liability for missed or non-compliant meal periods. Since California has been a leader in providing work benefits to employees, and over time, policies that began in California have drifted to Delaware (the implied covenant of good faith and fair dealing being a prime example), the Brinker ruling should cause Delaware employers to breathe a sigh of relief.

The Wage-and-Hour Division of the Department of Labor (DOL) has released an app called "DOL-Timesheet."  The app works on the iPad and iPhone but may later be released for Android and Blackberry. As described by the DOL:

This is a timesheet to record the hours that you work and calculate the amount you may be owed by your employer.  It also includes overtime pay calculations at a rate of one and one-half times (1.5) the regular rate of pay for all hours you work over 40 in a workweek.

The app does not handle tips, commissions, bonuses, deduction, holiday pay, shift differentials or other non-standard methods of pay.

One notable feature of the app is the ability to send a copy of the report via email.  This may be of particular use to employees who work "on the road" or even from home, especially if their time entries are sporadic.  For example, if an employee sends a series of emails from his iPhone at home, after the end of the normal business day, this may be a helpful way for him to record that time worked and communicate it to his employer.

To set up the app, the user is asked to enter the Employer name, the hourly rate of pay, and the start of the workweek.  (Picture at left).  A nifty little feature occurred when I entered $6.00 as the hourly rate.  A warning popped up, alerting me that I'd entered an amount less than the federal minimum wage.  (Picture at right).

The three screens below show how users can create a new timesheet; create a new time entry using either the timer or manually; and send the report via email.

There is also a glossary of wage-and-hour terms and, conveniently, contact information for the DOL's WHD.

Ah, technology.  Whatever will they think of next?

Last week, we addressed some of the implications of Delaware's Civil Union and Equality Act (the "CUEA") of 2011, which will become effective on January 1, 2012. In this post, we will address the ways in which the bill may or may not affect employers whose benefit structure is governed by federal law.

As a preliminary matter, it is important to recognize that the CUEA is a Delaware law, so it  has limited impact on matters governed by federal law. By contrast, the definition of marriage under federal law is governed by the Defense of Marriage Act ("DOMA"), which defines marriage as being between one man and one woman. While the Obama Administration has indicated that it believes DOMA is unconstitutional, and will no longer defend the statute in court, DOMA is still in effect. Consequently, for federal tax and ERISA purposes, the definition of marriage remains limited to heterosexual relationships.

Federal Employee Benefits

Many employers who provide benefits to their employees are governed by ERISA, not state law. ERISA governed benefits include both healthcare and retirement benefits, such as health insurance, life insurance, and 401k. If you are a private employer who pays for a portion of the benefits provided to your employees, chances are good that you are subject to ERISA. Because ERISA preempts state law, an employer subject to ERISA generally cannot be required to provide benefits to partners in a civil union.

There is an important distinction, however, between insured and self-insured plans. While self-insured plans are fully governed by ERISA, insured plans are subject to an exception that leaves them open to state insurance laws. Consequently, to the extent that Delaware's insurance code or regulations imposed by the Insurance Commissioner require coverage or benefits for married spouses and civil union partners, those laws or regulations will apply to insured ERISA plans.

It is important to remember, however, that just because you may not be required to provide such benefits doesn't mean you can't provide them. Many employers have determined that it is good policy to provide equal benefits to homosexual and heterosexual partners, regardless of marital status. If your business subscribes to that philosophy, there is no reason to change it now.

Taxation of Employee Benefits

Federal taxation of employee benefits will not be altered by the CUEA. Under federal tax law, insurance and other benefits provided to an employee's spouse are generally tax exempt. Similar benefits provided to a civil union or domestic partner are generally not tax  exempt. That will not change.

However, employers should be aware of an exception to this rule. Benefits provided to a civil union or domestic partner, where the partner is a tax dependent (i.e. the partner receives more than 50% of his or her support from the employee), are tax exempt regardless of marital status. For example, if an employee's partner stays home to care for children, and is covered under the employee's health insurance, the value of the insurance benefit to the partner is tax exempt, regardless of marital status. This exception does not apply to cafeteria or flexible spending plans.

Learn More!

The attorneys of Young Conaway's Employment Law Section will be discussing the contours of the CUEA and its employment law implications at the Annual Employment Law Seminar, on May 11, 2011. Please join us to learn more about this topic, which is sure to impact all Delaware employers directly or indirectly!

Do not pass go, do not have your claims investigated.  According to the new referral system from the U.S. DOL's Wage and Hour Division (WHD), potential plaintiffs can go directly to legal counsel.  WHD, the agency responsible for enforcing the Fair Labor Standards Act (FLSA) has announced that it is undertaking a new attorney-referral initiative with the American Bar Association. In what is a jolting move to many, WHD has announced that it will begin referring certain cases to private attorneys instead of investigating those claims.

According to the WHD’s website, the new "referral" program is intended to provide legal access to all employees who seek the WHD’s assistance.  WHD is inundated with claims--according to the site, WHD receives more than 35,000 contacts from employees each year alleging wage and hour violations. Despite hiring 350 new investigators, WHD is unable to pursue all of the claims filed.

Under this new initiative, an employee who claim is not pursued by WHD will be given a toll-free number to contact the ABA-Approved Attorney Referral System. The referral system will provide employees with listings for local labor attorneys who have experience with FLSA and FMLA cases. The employee may then contact the attorneys and file a private lawsuit. If the employee elects to retain an attorney, the attorney will be given special access to the WHD’s determination and relevant documents. What types of documents will be provided remains to be seen.

Employers should note that this is not a guarantee of representation. Although this referral system increases the chances that meritorious claims will be pursued, attorneys may still be relied upon to decline weak cases. The WHD’s decision to release documents prompted some attorneys to suggest that employers seek legal representation before responding to inquiries by the WHD. We would likely agree.  If the Department of Labor is going to provide a toll-free number to potential plaintiffs instead of providing a fair and impartial determination of the claims, any potential benefits for employers of having a government-funded investigatory agency seems to be lost entirely.

This post was written by Lauren Moak and edited by Molly DiBianca.  As with all blog posts, none of the opinions expressed herein are those of the writer's or editor's employer, clients, or other attorneys with whom they work.

The Delaware Wage Payment and Collection Act ("DWPCA"), is the state equivalent of the federal Fair Labor Standards Act ("FLSA"). Both the Delaware statute and the FLSA provide for individual liability for unpaid wages. In other words, an individual can be sued personally if he knowingly permitted a violation of the wage statute.  19 Del. C. Sec. 1101(b) states:

The officers of a corporation and any agents having the management thereof who knowingly permit the corporation to violate this chapter shall be deemed to be the employers of the employees of the corporation.

The Delaware Court of Common Pleas was recently asked to interpret the definition of "employer," for the purposes of individual liability, leading to an interesting and potentially important result. 

In Chasnov v. Brady, No. CPU4-09-8966 (Del. CCP Mar. 23, 2010), the Delaware Department of Labor sued two lawyers on behalf of their former law partner, Chasnov.  Chasnov was ordered to step down as a member of their law firm by the Office of Disciplinary Counsel but he continued to practice with the firm.  He alleged that he was not paid the full amount of fees he was owed.

The Department of Labor brought the suit on Chasanov's behalf to recover the fees he claimed were due. The suit was brought only against the two partners--not against the law firm--based on the provision of the statute cited above.

The partner-defendants moved to dismiss the suit on the ground that the Wage Payment Act does not impose individual liability on members and managers of an LLC.  Instead, they argued, the Wage Payment Act creates liability only for officers and agents of a corporation who knowingly permit the corporation to violate the Act. An LLC is not the same as a corporation and, therefore, members and managers of an LLC cannot be held individually liable for unpaid wages under state law.

The Court agreed with the defendants' argument, finding that the members and managers of a Limited Liability cannot be held personally liable under the state Wage Payment Act.

This is an important decision for employers in Delaware--especially those who operate an entity other than a corporation.  The decision supports a very narrow interpretation of who can be an "employer" for the purposes of individual liability under the Delaware Wage Payment Collection Act--a definition more narrow than the definition of "employer" under the federal Fair Labor Standards Act.

Mikula v. Allegheny County of Pennsylvania is a new decision from the Third Circuit Court of Appeals, interpreting the Lilly Ledbetter Fair Pay Act (“the Act”).

Facts of the Case

Plaintiff Mary Lou Mikula was hired by Allegheny County Police Department as its grants coordinator in 2001. In September 2004, Mikula wrote a memo to the Police Superintendent asking him to change her title to “Grants and Project Manager” and make her salary equal to or greater than that of a male colleague whose title was “Fiscal Manager.” The fiscal manager was making $7,000 a year more than Mikula at that time. The county did not respond to Mikula’s request. In October 2005, Mikula renewed her request for a raise. The county again did not respond.

In March 2006, Mikula filed an internal complaint alleging gender and age discrimination, stating that she was paid $7,000 a year less than a comparable male colleague and that the pay discrimination had started when she was hired. She also filed a lawsuit in federal district court alleging that her rights under the Equal Pay Act had been violated. In August 2006, the County’s Human Resources department notified Mikula that it had completed its investigation of her complaint and did not agree with her allegations of discrimination.

The Timeliness Argument

In April 2007, Mikula filed a discrimination charge with the U.S. Equal Employment Opportunity Commission alleging pay discrimination based on sex under Title VII of the Civil Rights Act of 1964 (“Title VII”). When she received a right-to-sue letter, she added the claim to her federal court case. In response, the County filed a motion arguing that the Title VII claim should be dismissed because Mikula had waited too long to assert the claim.

Under Title VII, claimants in most states must file their discrimination charges within 300 days of the allegedly discriminatory act. The County argued that the pay decision had been made in 2001 when Mikula was hired, and that even if the court allowed an extension of time until 2004, when Mikula found out about the difference between her pay and the fiscal manager’s pay, she had still waited more than 300 days before filing a charge. Mikula argued that the Human Resources department’s decision in August 2006 on her internal complaint of discrimination was itself a pay decision and that she had filed a charge within 300 days after receiving the decision.

Delaware's hourly wage increase is effective July 24, 2009, and the new hourly wage $7.25/hour.  Additionally, the federal minimum wage is set to increase to $7.25 on July 24, 2009. 22 other states will also increase the minimum wage for employers subject to state wage and hour laws. The majority of these increases take effect on July 24, 2009, but three states (KY, IL, NV) raised their minimum wage effective July 1, 2009.  

Employers-- make sure that starting July 24, 2009, you properly display a copy of Delaware's most current minimum-wage poster in a conspicuous location in your workplace.

The debate about equal pay is bound to continue in light of pending legislation like the Fair Pay Act and the Paycheck Fairness Act, which was passed by the House on July 21, 2008. Here are the nuts and bolts every employer should know about these important new developments.

The Fair Pay Act

The Fair Pay Act seeks to end wage discrimination against those who work in female-dominated or minority-dominated jobs by establishing equal pay for equivalent work. Under the Fair Pay Act, employers could not pay jobs that are held predominately by women less than jobs held predominately by men if those jobs are equivalent in value to the employer. The bill also protects workers on the basis of race or national origin. The Fair Pay Act makes exceptions for different wage rates based on seniority, merit, or quantity or quality of work.

The Paycheck Fairness Act

The Paycheck Fairness Act seeks to strengthen the Equal Pay Act of 1963.  The bill expands damages under the Equal Pay Act and amends its very broad fourth affirmative defense. In addition, the Paycheck Fairness Act calls for a study of data collected by the EEOC and proposes voluntary guidelines to show employers how to evaluate jobs with the goal of eliminating unfair disparities.

Ledbetter Fair Pay Act / Fair Pay Restoration Act

Another interesting piece of pay-related legislation to watch is the Lilly Ledbetter Fair Pay Act / Fair Pay Restoration Act, which seeks to amend the Civil Rights Act of 1964 and other anti-discrimination laws to clarify at which points in time discriminatory actions qualify as an “unlawful employment practice.”  The Fair Pay Restoration Act seeks to change the results of Ledbetter v. Goodyear Tire & Rubber.  (For more information about the Ledbetter decision, see Equal Pay: Fair Pay Restoration Act Voted Down in Senate). 

Under the Fair Pay Restoration Act, an unlawful discriminatory act is committed when a discretionary compensation decision is adopted, when an employee becomes subject to the decision, or when an individual is affected by the application of a decision, including each time compensation is paid.   This is inapposite to Ledbetter, where the U.S. Supreme Court held that employees cannot challenge ongoing pay discrimination if the employer’s original discrimination decision occurred more than 180 days before the most recent discrimination, even when an employee continues to receive paychecks that have been discriminatorily reduced for some time. The law further states that individuals may receive back pay as compensation for discrimination that occurred up to two years preceding the filing of a charge.

Delaware's neighbor to the south has amended its state wage law, clarifying that accrued but unused leave is payable upon termination only if provided by written policy, which was communicated to the employee at the time of hire. 

This had been the long-standing position of the Maryland Division of Labor & Industry.  But then came Catapult Technology, Ltd. v. Wolfe, a 2007 decision by the Maryland appellate court, which held that accrued but unpaid leave is a "wage" under the state's wage and hour law.  As a result of unreported decision, the Division of Labor changed its position and announced that employees could file a claim for unpaid vacation or sick time upon discharge or resignation.  The new state law provides an important statutory defense to employers--but only employers that have written vacation-payout policy. 

Delaware employers do not a similar statutory defense but it is well established that vacation payouts are not required unless the employer and employee had an arrangement to the contrary. 

To avoid any potential dispute regarding what was or was not agreed to at the time of hire, employers should take the following steps:

1. Determine exactly what your vacation policy will be.  Will employees be able to roll time over from year to year?  If so, is there any limit on the amount of time that can be accrued?  And, finally, what happens to any accrued but unused time when the employee leaves the company?  Payout can also depend on whether the employee was voluntarily or involuntarily discharged. 
2. Next, put your policy in writing and communicate it to all employees.
3. Finally, do not make exceptions to the policy unless there truly are extenuating circumstances and, even then, document the reasons for breaking from the norm.

After being diagnosed with a malignant brain tumor, long-time advocate of the American worker, U.S. Senator Ted Kennedy, will be released from the hospital today.  Kennedy was hospitalized Saturday morning after suffering a seizure at his family's compound at Hyannisport, Massachusetts.  Following the news of his sudden illness, politicians from both parties spoke highly of the Democratic Senator, including both democratic presidential candidates, Senators Barack Obama and Hilary Clinton. As Washington regulars reflect on Kennedy's contributions during his more than 40 years in public service, U.S. employers may be interested in the initiatives that would have the greatest impact on the American workplace. 

Kennedy's Current Workforce Initiatives

Senator Kennedy is a major employee advocate and many of his initiatives are focused on this goal.  This passage from his senatorial website demonstrates Kennedy's perspective:

The minimum wage is at an all-time low, the Family and Medical Leave Act is under attack, and workers are being stripped of their overtime pay, unemployment insurance, and pensions. The United States must recommit itself to supporting working families to ensure a strong and prosperous America for future generations.

Specifically, Kennedy seeks to achieve these objectives through various proposals.  Here are five of Kennedy's proposals that would have the greatest impact on employers. 

1.   Union Rights

Senator Kennedy is a long-time union supporter.  On the agenda just this month was the Public Employer-Employee Cooperation Act, which focuses on collective bargaining rights for public safety employees.  Currently, 26 states permit public employees to form bargaining unions.  The Cooperation Act would require the other 24 states to do the same. 

2.   Minimum Wage

Kennedy is one of the Senate's most vocal advocates for an increased federal minimum wage. This subject is a sensitive one for most U.S. employers.  If the national minimum wage did increase, it would likely trigger at least some changes in the way employers look at immigration reform, which is also on the Senator's list of proposals.

3.   Immigration Reform:  Illegal Immigrants

Another one of Senator Kennedy's major initiatives is targeting immigration.  Last year, immigration-reform legislation was passed but, according to Kennedy, fell short of achieving the goals it was intended to address. Kennedy has continued to advocate for revisions to the legislation, focusing on these main points:

1. Tougher Border Enforcement.  These changes would include border-enforcement patrols double the current size.  It would also target illegal immigrants currently in the U.S.  Employers who hire illegal workers would be subject to increased enforcement, as well.
2. Earned Legalization.  This initiative would target illegal aliens already in the U.S., giving them opportunities to earn citizenship.  This effort is based on the argument that massive deportation would be seriously disruptive to communities and business in the States.

4.  Immigration Reform:  The Future for Foreign Workers

Temporary-Worker Program.  As many employers are fully aware, getting specialty workers from other countries is a daunting task.  This third prong of Senator Kennedy's proposal is forward looking.  In the future,temporary employees from abroad would be given easier access to come to the U.S. for temporary work with the goal of working towards permanent employment and citizenship. 

5.  IDEA Reform

Another initiative on Kennedy's agenda has been increased funding for the Individuals with Disabilities Education Act (IDEA).  The Senator's position is that, although the goals and purposes of the IDEA are on-track, the lack of federal funding has prevented it from being fully utilized by the states.

Information about these and other initiatives can be found on the Senator's official website.

Employers in Delaware and beyond have at least a small obsession with the Fair Labor Standard Act (FLSA). And rightly so, given the current litigation climate. The posts in the employment and human resources blogospheres reflect the interest in everything related to compensable time.  There were so many great posts over the weekend, in fact, that it's safe to say we'll never get around to devoting an entire post to each one.  Instead, here are the Top 5 issues we think are most important for employers to have on their radars.

Compensatory Time

The Employers' Law Blog and the Washington Labor & Employment Wire both have posts on the new comp-time bill proposed in the House last week.  The Employers' Law Blog has a short post alerting employers of a proposed amendment to the Fair Labor Standards Act (FLSA).  The Family-Friendly Workplace Act was introduced on May 14, 2008.  The Act would permit private employers to "pay" employees in compensatory time for overtime hours worked.  Traditionally this option has been available primarily to public sector employees.  The post, Comp Time in the Private Sector?, is a quick read to ensure your up to speed on the current state of law as well as the potential changes.  The Washington L&E Wire's post offers more comprehensive coverage for those who want the full scoop.

Interns

It's that time of year.  High-school students are looking for summer work.  College students are looking for internships. Ah, interns.  Students seek experience and hands-on-training.  Employers seek enthusiastic, eager, and inexpensive additions to the workforce.  Over the past two or three weeks, I've received several questions about intern compensation and this comprehensive article covers the whole spectrum of issues. The article, How to Protect Yourself From the Hidden Dangers of Unpaid Internships, posted on the Labor and Employment Law Blog, is  a good post for those who want a bit more detail.

The (Non-)Compensable Commute

Another hot topic this week was the decision from the Second Circuit, Singh v. City of New York, which addressed whether carrying documents to and from work was compensable commuting time.  Thankfully, the answer is "No."  Some of the blogs to discuss this important decision include, The California Wage Law Blog, Wait a Second!, the 2d Circuit Civil Rights Blog, The Connecticut Employment Law Blog, and the New York Public Personnel Blog.

Administrative Exemption to Overtime

The U.S. Department of Labor (DOL) issued a new Administrator-signed opinion letter that addresses the administrative exemption.  The letter is discussed at The Laconic Law Blog and back at The Washington Labor & Employment Wire.

FLSA Blog

Although technically, this isn't an FLSA topic, it's still worthy of the Top 5.  This blog regularly posts on current FLSA issues so it's almost guaranteed that a Top 5 topic will show up sooner or later at the Fair Labor Standards Act Blog.

And Don't Forget . . .

Of course, I can't leave our own Scott A. Holt off the list. Scott blogged on two really interesting FLSA issues this week, "Keeping Your Employees In the Loop Via Blackberry May Lead to Overtime Litigation," and "Overtime Lawyer Champion of the Middle-Class Worker."

Overtime lawsuits are the hottest employment lawsuit trend.  Nevada lawyer Mark R. Thierman is a demigod in this corner of the legal world.  Thierman has won hundreds of millions of dollars from companies in unpaid wages.   Beginning in the mid-1990's, Thierman filed the first in a series of lawsuits against California employer after having spent most of his career as a management-side employment attorney. 

The federal Fair Labor Standards Act (FLSA) requires the payment of overtime and minimum wage for most workers. About 115 million employees—86% of the workforce—are covered by federal overtime rules, according to the U.S. Department of Labor (DOL). Plenty of wage and hour lawsuits are filed on behalf of the traditional working class, be they truckers, construction laborers, poultry processors, or restaurant workers. In fact, some would say that wage and hour suits have generated a cottage industry for plaintiffs' lawyers.  But no one has been more successful than Thierman in collecting overtime for employees who are far from the factory floor or fast-food kitchen.

His biggest settlements over the last two years have been on behalf of stockbrokers, many of whom earn well into the six figures. Thierman has teamed up with other lawyers to extract settlements totaling about a half-billion dollars from brokerage firms, including $98 million from Citigroup's Smith Barney and $87 million from UBS Financial Services Inc. (As is typical in settlements, the companies do not admit liability.) With those cases drawing to a close, he and other attorneys already are pursuing new claims on behalf of computer workers, pharmaceutical sales reps, and accounting firm staff.

BusinessWeek.com has a great article titled, "Wage Wars," detailing Thierman's Robin-Hood style ventures and the wave of overtime litigation sweeping major corporations across the country.  Since 2000, overtime litigation has exploded nationwide. The U.S. Chamber of Commerce decried the "FLSA litigation explosion" and its having become the "claim du jour" for plaintiffs' attorneys.

Thierman shrugs at such concerns. The alternative, in his view, would be to have the laws enforced by a government bureaucracy.  Thierman professes to be helping the little guy: "I'm interested in the middle class—those are my folks."

[H/T to George's Employment Blawg and the Ohio Employment Law Blog]