“Never a dull moment” – 2010 was an eventful year for Fair Labor Standards Act (“FLSA”) jurisprudence in the Fifth Circuit and across the country. What’s new? 

• The Fifth Circuit finally answered the FLSA’s biggest question, namely, when the Rebel forces destroyed the uncompleted Death Star in “Return of the Jedi,” were the construction workers caught in the blast independent contractors or employees? The court’s analysis in three 2010 cases suggests that the independent contractor versus employee question has shifted from an emphasis on control to a renewed focus on the nature and permanency of the parties’ relationship. 
• The argument that misclassified employees should recover only half-time gained some steam, but the final word now rests with the United States Supreme Court. 
• The circuits are still split on whether mental anguish or punitive damages are available in FLSA retaliation cases; however, district court cases in the Fifth Circuit suggest these damages should not be awarded in FLSA cases. 
• Employer attempts to offset FLSA damages with other payments received a serious blow.
• As a backdrop to these developments, the Department of Labor (“DOL”) and several federal courts continued to narrowly construe many FLSA exemptions.

What is in store for 2011? We expect the DOL to continue its aggressive enforcement of the wage and hour laws which, of course, will likely lead to more litigation over alleged wage and hour violations. From the U.S. Supreme Court, we should receive a final determination (a) whether prevailing FLSA Plaintiffs may only recover half-time for unpaid overtime; and (b) whether a verbal complaint is sufficient to support an FLSA retaliation claim. Stay tuned.

To read the full alert, click on "Link to article below." If you have any questions, please visit the Haynes and Boone Labor and Employment Practice page of our website or contact one of the following attorneys.