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Fourth Circuit Court of Appeals Victory

Jun 09, 2021

On February 21, 2017, the Law Offices of Gilda A Hernandez, PLLC filed a class action lawsuit on behalf of Named, Opt-in, and putative Plaintiffs and Rule 23 class members against Hospitality Ventures, LLC d/b/a Umstead Hotel and Spa; SAS Institute, Inc.; and NC Culinary Ventures, LLC d/b/a Ãn Asian Cuisine.

On March 15, 2018, Plaintiff filed a Motion for Conditional Class Certification requesting that the Court certify this matter as a class action. Defendants filed their response on May 1, 2018. The Court still has not ruled on this motion. On the same day as their response in opposition to our Motion for Conditional Class Certification, Defendants filed their Motion for Summary Judgment requesting that the Court dismiss the lawsuit.  Plaintiffs responded in opposition to Defendants’ Motion for Summary Judgment on May 31, 2018.

On December 18, 2018, the Eastern District Court of North Carolina granted Defendants’ Motion for Summary Judgment and dismissed Plaintiff’s claims without prejudice. Shortly thereafter, the Law Offices of Gilda A. Hernandez, PLLC appealed the District Court’s decision, to the Fourth Circuit Court of Appeals – the court system below the Supreme Court.

The appeals process took approximately two (2) years with various motions back and forth.  Notably, the Fourth Circuit selected Plaintiff’s appeal for oral argument on September 8, 2020, in front of Circuit Judges Agee and Quattlebaum and U.S. District Judge for the Northern District of West Virginia, Thomas S. Kleeh.

On November 24, 2020, the Fourth Circuit issued its ruling, reversing in part and remanding back to the District Court for further proceedings, to which Defendants filed a Motion to Stay the Mandate, to appeal to the United States Supreme Court.   On January 7, 2021, the Fourth Circuit denied Defendants’ Motion.  The Fourth Circuit issued the Mandate on January 15, 2021, and the case was remanded back to the District Court for further proceedings.

CURRENT UPDATE : On June 3, 2021, U.S. District Judge Louise W. Flanagan granted Plaintiff’s motion for conditional/class certification on Plaintiffs’ claims regarding Defendants’ tip pooling arrangement requiring servers, server assistants, runners, and bartenders to participate in the restaurants’ alleged illegal tip pool and inter alia failed to pay minimum wages and overtime as due, in violation of the Fair Labor Standards Act (FLSA) and North Carolina Wage and Hour Act (NCWHA).

If you or someone you know would like to join this action, please follow the link to learn more: Tom v. Hospitality Ventures, LLC et al.

New Associate to Join the Firm

12 Mar, 2024
The Firm is excited to welcome Briahna B. Koegel as an Associate Attorney in August 2024, following her graduation from The University of North Carolina School of Law in the top third of her class, where she has been selected as an Inaugural Excellence in Diversity Fellow. Ms. Koegel earned her undergraduate degree at Harvard University where she made the Dean’s List and received the Dean’s List Achievement award throughout her attendance. While attending UNC, Ms. Koegel interned with Senator Jay Chaudhuri at the North Carolina General Assembly and was employed as a summer associate with several defense firms. Further, Ms. Koegel has been an active member of numerous organizations, such as Alpha Kappa Alpha Sorority; Chairperson of Diversity, Equity, and Inclusion with Miss North Carolina Organization; Black Law Students Association; Wellness Committee; and Sports and Entertainment Law Association. We are looking forward to having Ms. Koegel join our team in the coming months.

Gilda Hernandez Quoted in “How Gov. Shutdown Would Impact DOL's Wage-Hour Work"

03 Oct, 2023
Recently, Law 360's Max Kutner conducted an interview with Ms. Gilda Hernandez to gain insight on the potential impact of the Government shutdown on the Department of Labor's Wage and Hour work as well as the individuals who may be affected by it. Ms. Gilda Hernandez, a former investigator for the Wage and Hour Division, who now represents employees in wage and hour issues, expressed concerns that employers may exploit the shutdown, leaving workers without immediate access to the Department of Labor for assistance. This could have a serious negative impact on workers across the country, particularly in the enforcement of child labor protections, which the Wage and Hour Division has recently prioritized. Ms. Hernandez worries that without assistance from the Wage and Hour Division, workers may not receive the wages they are rightfully entitled to. If you would like to read more, please see the September 27, 2023, Law 360 article by Max Kutner titled “How Gov. Shutdown Would Impact DOL's Wage-Hour Work.” https://www.law360.com/employment-authority/articles/1725803 (subscription required).

USDOL Releases Rule Requesting Update to Overtime Provisions

28 Sep, 2023
On August 30, 2023, the United States Department of Labor published their proposed rule regarding overtime exemption thresholds. Currently, for an executive, administrative or professional employee to be eligible for FLSA minimum wage and overtime pay, they must make less than $35,568/year. The new rule proposes that this group of employees must now make less than $55,068/year to be eligible for overtime pay and minimum wage FLSA requirements; a change that would encompass a much larger group of employees, at least 3 million more than are currently protected. Moreover, this proposed rule change also incorporates an automatic update to the threshold every three years based on nationwide average earnings. More information can be found at the USDOL’s News Release, https://www.dol.gov/newsroom/releases/whd/whd20230830 , titled “Department of Labor Announces Proposal to Restore, Extend Overtime Protections for 3.6 Million Low-Paid Salaried Workers.”

New Associates to Join the Firm

25 Jul, 2023
The Firm is excited to be welcoming Mr. Matthew Marlowe and Mr. Ian McAdoo as Associate Attorneys this Fall. Matthew Marlowe is a graduate of the University of North Carolina School of Law. After graduating, Matthew went to practice as a Staff Attorney for Legal Aid of N.C., where he defended low-income community members facing eviction, as well as working within the Legal Aid Eviction Diversion Clinic. Ian McAdoo is a recent graduate from the University of North Carolina School of Law where he was the Social Action Chair for the Black Law Student Association. We look forward to having Matthew and Ian join us in the coming months.

Summer Associate Announcement

By chelsealincoln • 09 Jun, 2021
The Law Offices of Gilda A. Hernandez, PLLC is proud to announce the addition of a new summer associate for the summer of 2021. Melissa Smith is a second-year law student at Wake Forest University School of Law. Ms. Smith has a Bachelor of Arts in English and Political Science from the University of North [..] The post Summer Associate Announcement appeared first on Law Offices of Gilda A. Hernandez.

Proposed Amendments to the Fair Labor Standards Act of 1938

By samuelwiegand • 31 Aug, 2020
On July 11, 2019, Rep. Rosa DeLauro introduced a bill to amend the Fair Labor Standards Act and the Portal-to-Portal Act of 1947 to prevent wage theft and assist in the recovery of stolen wages. H.R. 3712 amends the FLSA to require employers to: (1) disclose to employees their terms of employment, (2) provide employees [..] The post Proposed Amendments to the Fair Labor Standards Act of 1938 appeared first on Law Offices of Gilda A. Hernandez.

COVID-19 and the Fair Labor Standards Act

By samuelwiegand • 31 Aug, 2020
During the COVID-19 pandemic, many employers are encouraging and permitting employees to work remotely. All work performed away from the worksite, including working from home, is treated the same as work performed at the primary worksite under the FLSA. All employers are required to compensate employees for all hours of remote or telework. However, employers [..] The post COVID-19 and the Fair Labor Standards Act appeared first on Law Offices of Gilda A. Hernandez.

Summer Associate Announcement

24 Jun, 2020
The Law Offices of Gilda A. Hernandez, PLLC is proud to announce the hiring of new summer associate for the summer of 2020. Christine Cline is a second-year law student at the Elon University School of Law. Cline has a Bachelor of Arts in Psychology from North Carolina State University and has previously worked as [..] The post Summer Associate Announcement appeared first on Law Offices of Gilda A. Hernandez.

Overtime Rule News Update

By vkoke • 08 Nov, 2019
On Tuesday, September 25, 2019, the United States Department of Labor released the final rule raising the minimum salary an employee must make to be exempt from overtime pay. As a result, more salaried employees will be eligible for overtime compensation. The Department has provided new thresholds to account for growth in employee earnings since [..] The post Overtime Rule News Update appeared first on Law Offices of Gilda A. Hernandez.

Proposed Changes to Existing Regulations Concerning Joint Employment Under the Fair Labor Standards Act (FLSA)

22 Jul, 2019
On April 1, 2019, the Department of Labor (DOL) announced it will publish a notice of proposed rulemaking (NPRM) to amend existing regulations concerning joint employment under the Fair Labor Standards Act (FLSA). Being the first meaningful proposed revision to joint-employer regulation under the FLSA since 1958, the NPRM aims to provide employers a more [..] The post Proposed Changes to Existing Regulations Concerning Joint Employment Under the Fair Labor Standards Act (FLSA) appeared first on Law Offices of Gilda A. Hernandez.
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