TAMPA — The law firm of Phelps Dunbar in Tampa has a new managing partner — Dennis McClelland, who's been involved in labor and employment law for 19 years.
McClelland says now is an exciting time for labor law, as plaintiffs get aggressive about overtime and discrimination cases and other types of wage and hour litigation.
“Florida has been has been the epicenter for Fair Labor Standards Act (FLSA) overtime pay lawsuits for over a decade.” McClelland recently told the Florida Record. “More FLSA cases are filed here than anywhere else in the country, by far, but more recently, we have seen a rise in minimum-wage class- and collective-action lawsuits filed by tipped employees under Florida’s minimum wage law. These cases often are challenging for employers because of the specific technical requirements in the law for utilizing a "tip credit" to satisfy minimum wage obligations.”
Wage and hour law also has been a hot area on a national level.
“The U.S. Department of Labor — specifically, Wage and Hour Administrator Dr. David Weil and DOL Solicitor Patricia Smith — have made no secret about the DOL’s aggressive enforcement initiatives,” McClelland said. “Such initiatives include efforts to address the misclassification of workers as independent contractors and compliance problems in the so-called "fissured" workplaces — that is, workplaces where workers in the same establishment or on the work site are employed by various different companies. The DOL is utilizing concepts like the "joint employment" doctrine to try to hold more employers accountable for violations in the establishments or on the work site.”
McClelland also said there is more of a focus on different types of labor claims, such as overtime claims. In part, he sees that as the influences of the Obama administration. In Obama's first term, McClelland said, there was a lot of focus on the Affordable Care Act. In the last few years, he said, some of that focus has shifted to creating a fair labor environment.
At the state level, McClelland said, there hasn't been a lot of pushback against existing laws to enforce fair labor practices. He also noted that “local governments in Florida have been enacting wage theft ordinances over the last five years, including a law passed in Hillsborough County in 2015.”
According to McClelland, many businesses in Florida are unaware that these new wage theft laws exist.
The most significant issue, according to McClelland, is the DOL’s proposed regulations regarding white-collar overtime exemptions.
The DOL proposed regulations in July 2015 that would raise the minimum salary required for exempt white-collar workers to over $50,000 annually. This is more than double the current minimum salary required to qualify for the exemptions.
McClelland says the final regulations are expected to be issued sometime this year and will be “a game-changer that will impact almost all businesses and will affect millions of workers nationally.”
McClelland graduated from the University of Florida Levin College of Law in 1996 and is the editor-in-chief of The Fair Labor Standards Act, a nationally recognized treatise published by Bloomberg BNA and the American Bar Association Section on Labor and Employment Law. He frequently lectures on wage and hour law topics.