Whether in cash or in facilities, “wages” cannot be considered to have been paid by the employer and received by the employee unless they are paid finally and unconditionally or “free and clear.” The wage requirements of the Act will not be met where the employee “kicks-back” directly or indirectly to the employer or to another person for the employer's benefit the whole or part of the wage delivered to the employee. This is true whether the “kick-back” is made in cash or in other than cash. For example, if it is a requirement of the employer that the employee must provide tools of the trade which will be used in or are specifically required for the performance of the employer's particular work, there would be a violation of the Act in any workweek when the cost of such tools purchased by the employee cuts into the minimum or overtime wages required to be paid him under the Act. See also in this connection, § 531.32(c).
Notes of Decisions
Robert Stein v. hhgregg Inc., 873 F.3d 523 (6th Cir. 2017).
· cites it 25× “Nevertheless, plaintiffs argue that the deductions from commission earnings in this case are not “otherwise lawful,” because defendants failed under this policy to deliver the minimum wage “free and clear” as required by 29 C.F.R. § 531.35 . The FLSA mandates that “[e]very…”
Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393 (5th Cir. 2010).
· cites it 10× “" Hence, they argue that these expenses constitute "tools of the trade" pursuant to 29 C.F.R. § 531.35 (2010), [6] such that their payment of these expenses are "de facto deductions" from their wages.”
Yu G. Ke v. Saigon Grill, Inc., 595 F. Supp. 2d 240 (S.D.N.Y. 2008).
· cites it 4× “As an accompaniment to their minimum-wage and overtime claims, they also allege that they were victimized by unlawful deductions from their wages in the form of “fines” and kickbacks to defendants, 29 C.F.R. § 531.35 , and that they are entitled to reimbursement for the expenses…”
Garcia v. Frog Island Seafood, Inc., 644 F. Supp. 2d 696 (E.D.N.C. 2009).
· cites it 4× “’ ” 29 C.F.R. § 531.35 . The FLSA defines “wage” to include both cash wages and the reasonable cost of providing “board, lodging, or other facilities;” thus, an employer may count these costs toward satisfying its minimum wage obligations.”
Victor Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892 (9th Cir. 2013).
· cites it 2× “It rejected the farmwork-ers’ FLSA claims on the ground that 29 C.F.R. § 531.35 did not treat the relevant expenses as kickbacks.”
City of Oakland v. Hassey, 163 Cal. App. 4th 1477 (Cal. Ct. App. 2008).
· cites it 4× “( 29 C.F.R. § 531.35 (2007).) He claims that while he was working under the reimbursement agreement, he was being paid under the “condition” that he repay his training costs should he leave before the end of five years.”
Ketner v. Branch Banking & Trust Co., 143 F. Supp. 3d 370 (M.D.N.C. 2015).
· cites it 5× “Ketner points to 29 C.F.R. § 531.35 of FLSA’s implementing regulations, which provides that “[w]hether in cash or in facilities, ‘wages’ cannot be considered to have been paid by the employer and received by the employee unless they are paid finally and unconditionally or ‘free…”
Gamero v. Koodo Sushi Corp., 272 F. Supp. 3d 481 (S.D.N.Y. 2017).
“June 16, 2017) (quoting 29 C.F.R. § 531.35 ). “The same is true under New York law.”
Sullivan v. PJ United, Inc., 362 F. Supp. 3d 1139 (N.D. Ala. 2018).
· cites it 4× “" 29 C.F.R. § 531.35 . A kickback occurs when the cost to the employee of tools specifically required for the performance of the employee's work "cuts into the minimum or overtime wages required to be paid him under [the FLSA].”
Gordon v. City of Oakland, 627 F.3d 1092 (9th Cir. 2010).
“’ The wage requirements of the Act will not be met where the employee ‘kieks-back’ directly or indirectly to the employer or to another person for the employer’s benefit the whole or part of the wage delivered to the employee.”
Quoc Viet v. Victor Le, 951 F.3d 818 (6th Cir. 2020).
“2011) (discussing 29 C.F.R. § 531.35 ). In this case, however, Viet does not assert that his pay fell below the required minimum wage.”
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