By Douglas Weiner
Last month, we released our Wage and Hour Division Investigation Checklist for employers and have received terrific feedback with additional questions. Following up on your questions, we will be regularly posting FAQs as a regular feature of our Wage & Hour Defense Blog.
In this post, we address an increasingly common issue that many employers are facing in light of aggressive government enforcement at the state and federal level from the Department of Labor.
QUESTION: If a DOL team of Wage Hour Investigators arrive unannounced demanding the immediate production ...
By Michael Kun
We have written previously in this blog about California’s obscure “suitable seating” law, which requires that some employers provide “suitable seating” to some employees.
In short, the plaintiffs’ bar recently discovered a provision buried in California’s Wage Orders requiring employers to provide “suitable seating” to employees when the nature of their jobs would reasonably permit it. Although the provision was written to cover employees who normally worked in a seated position with equipment, machinery or other tools, employers in a ...
By: Kara M. Maciel
Earlier this month, we released our Wage and Hour Division Investigation Checklist for employers and have received a lot of great feedback with additional questions. Following up on that feedback, we will be regularly posting FAQs as a regular feature of our Wage & Hour Defense Blog.
In this post, we address a common issue that many employers are facing in light of increased government enforcement at the state and federal level from the Department of Labor.
QUESTION: “I am aware that my industry is being targeted by the DOL for audits and several of my ...
By Michael Kun
As we have written before in this space, the latest wave of class actions in California is one alleging that employers have not complied with obscure requirements requiring the provision of “suitable seating” to employees – and that employees are entitled to significant penalties as a result.
The “suitable seating” provisions are buried so deep in Wage Orders that most plaintiffs’ attorneys were not even aware of them until recently. Importantly, they do not require all employers to provide seats to all employees. Instead, they provide that employers ...
On December 17, 2012, in Crocker v Townsend Oil, the Massachusetts Supreme Judicial Court invalidated a settlement agreement, waiver and release to the extent it purported to release claims under the Massachusetts Wage and Hour Laws, but did not expressly include that statute by name among the claims being released. Specifically, the Court held:
We...conclude that a settlement or contract termination agreement by an employee that includes a general release, purporting to release all possible existing claims will be enforceable as to the statutorily ...
By Michael Kun
Employers with operations in California have become aware in recent years of an obscure provision in California Wage Orders that requires “suitable seating” for some employees. Not surprisingly, many became aware of this provision through the great many class action lawsuits filed by plaintiffs’ counsel who also just discovered the provision. The law on this issue is scant. However, at least two pending cases should clarify whether and when employers must provide seats – a case against Bank of America that is currently before the Ninth Circuit Court of ...
By Frederick Dawkins and Douglas Weiner
Earlier this month, at the ABA Labor and Employment Law Conference, Solicitor of Labor M. Patricia Smith reaffirmed that investigating independent contractors as misclassified remains a top priority of the U.S. Department of Labor’s (“DOL”) enforcement initiatives. The DOL will continue to work with other federal and state agencies, including the IRS, to share information and jointly investigate claims of worker misclassification. The joint enforcement effort is certainly driven by, among other things, an interest in ...
The U.S. Court of Appeals for the Eighth Circuit recently confirmed that the Fair Labor Standards Act (“FLSA”) does not prohibit an employer from modifying its workweek in order to avoid overtime costs. The Court’s ruling in Redline Energy confirms that employers are permitted to modify their workweeks as long as the change is intended to be permanent. Employers are not required to set forth a legitimate business reason for making the change and are permitted to do so solely for the purpose of reducing their overtime costs. The only requirement on ...
By Michael Kun and Aaron Olsen
To the surprise of few, the California Supreme Court has decided to review the Court of Appeal’s decision enforcing a class action waiver in Iskanian v. CLS Transportation Los Angeles, LLC.
We wrote in detail about that decision on this blog earlier this year.
In reaching its conclusion, the Court of Appeals relied on the April 2011 United States Supreme Court’s landmark decision in AT&T Mobility, LLC v. Concepcion. Whether the California Supreme Court will follow Concepcion or attempt to distinguish it is impossible to predict. Unfortunately ...
EBG’s free wage-hour app, which allows users to access federal law and the laws of many states, has been updated to include Massachusetts law.
The app can be dowloaded here: https://itunes.apple.com/us/app/id1320249735
Earlier this year, we were pleased to introduce our free wage-hour app for iPhones and iPads. The app puts federal wage-hour law, as well as that for many states, at users’ fingertips.
We have recently added New Jersey law to the app, as well as updated it to reflect changes in California law following the long awaited Brinker v. Superior Court decision clarifying meal and rest period laws.
The app may be found here: https://itunes.apple.com/us/app/id1320249735
By Amy Traub and Desiree Busching
Just as designers must be cognizant of copycat fashions, employers must be cognizant of copycat lawsuits. In February of this year, Xuedan “Diana” Wang filed a lawsuit against her former employer, Hearst Corporation, on behalf of herself and others similarly situated, alleging that the company violated federal and state wage and hour laws by failing to pay minimum wage and overtime to interns working for Harper’s Bazaar. Wang had worked for Harper’s Bazaar during the fall of 2011. Her lawsuit was filed in February 2012, only five months ...
By Adam Abrahms
Outside of California, employers frequently enter into agreements with non-exempt salaried employees that provide for a set weekly salary that includes overtime for a specific number of hours and is based on a defined regular rate of pay. For example, an employer may agree to pay an employee as salary of $950 a week for 45 hours of work resulting in the employee being paid $20/hour for the first 40 hours and time and half ($30) for the overtime hours. These agreements typically provide that if an employee works more than the established hours, the employee would be paid ...
By Michael Kun
Yesterday, only weeks after its long-awaited Brinker v. Superior Court decision, the California Supreme Court issued another important ruling on California meal and rest period laws.
In Kirby v. Immoos Fire Protection, Inc., the Supreme Court ruled that neither party may recover attorney’s fees on claims involving meal and rest periods. The Court analyzed the legislative history of the meal and rest period provisions and concluded, “We believe the most plausible inference to be drawn from history is that the Legislature intended [meal and rest period] claims to ...
By: Michael Kun
This morning, the California Supreme Court has just issued its long-awaited decision in the Brinker case regarding meal and period requirements. It is largely, but not entirely, a victory for employers. A copy of the decision is here.
A few highlights of the decision:
On rest periods, the Court confirmed the certification of a rest period class because Brinker’s written policy arguably did not comply with the law as to the second rest period in a day. In so doing, it clarified when employees are entitled to rest periods:
· Employees are entitled to 10 minutes’ rest for ...
Wage and hour investigations and class action lawsuits continue to be a potentially serious problem for many employers, resulting in an abundance of new cases filed and many large settlements procured. In addition, in September 2011, under the guidance of the Obama Administration, the Department of Labor and IRS announced an effort to coordinate with each other to address misclassification of employees as independent contractors, which is resulting in additional investigations, fines, and/or legal liability levied on an employer.
By Amy Traub and Desiree Busching
Like the fashions in the magazines on which they work and the blockbuster movies for which they assist in production, unpaid interns are becoming one of the newest, hottest trends— the new “it” in class action litigation. As we previously advised, there has been an increased focus on unpaid interns in the legal arena, as evidenced by complaints filed by former unpaid interns in September 2011 against Fox Searchlight Pictures, Inc. and in February 2012 against Hearst Corporation. In those lawsuits, unpaid interns working on the hit ...
by Michael S. Kun, Eric A. Cook, and Jennifer A. Goldman
California Governor Jerry Brown has signed two employment-related bills into law, raising the stakes for employers doing business in California. The two laws, which increase the penalties for employers that wrongly classify employees as independent contractors or engage in "wage theft," both go into effect on January 1, 2012.
On August 23, 2004, the U.S. Department of Labor overhauled the Federal overtime exemption regulations with amendments that included elimination of the former “long” and “short” tests for exemption (the application of one or the other being determined by the employee’s salary level), in favor of a single, streamlined duties test for each category of exemption, including executive, administrative, professional and outside sales employees. Since that time, New Jersey’s overtime exemption regulations, which were modeled on the Federal ...
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Recent Updates
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