Wage and Hour Defense Blog

In employment, as in life generally, breaking up can be hard to do.  This is particularly so when a departing employee owes the employer money.  Most employers understand that applicable law often prohibits simply deducting such debts from an employee’s final paycheck.  Consider, for example, a recently terminated employee who refuses to return a $500 printer the employer provided to allow the employee to work from home.  In most states, absent an agreement in writing, wage payment laws prohibit the employer from deducting $500 from the employee’s final paycheck to recover the cost ...

As we wrote here recently,  two federal courts in California rejected Postmates’ attempt to escape having to defend thousands of individual arbitrations filed by drivers contending they have been misclassified as independent contractors. Those decisions require Postmates to pay millions in arbitration fees alone.

A federal court in Illinois has now reached the same conclusion, holding that Postmates must proceed with more than 200 individual arbitrations that will cost Postmates $11 million in arbitration fees.

Arbitration agreements with class action waivers have become ...

The California Labor Commissioner’s Office has taken aim at Mobile Wash, Inc., a business that offers a mobile app for on-demand car washing and detailing services, filing a lawsuit against the company and its president to enforce AB5, California’s controversial law designed to make it more difficult for businesses to engage workers as independent contractors.

As we wrote here, AB5 codified and expanded the “ABC test” adopted by the California Supreme Court in Dynamex Operations West, Inc. v. Superior Court for determining whether workers in California should be ...

While the COVID-19 pandemic remains a challenge to employers nationwide, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) continues to field non-COVID-related wage and hour questions.  On June 25, 2020, the WHD issued five new opinion letters addressing the outside sales, administrative, and retail or service establishment exemptions under the Fair Labor Standards Act (“FLSA”), as well as the relationship between third-party payments to workers and the FLSA’s minimum wage requirement.  Employers should take note of these useful explanations of key ...

The times they are a-changin’ and Washington’s rules relating to overtime pay are changing with them. Effective July 1, 2020, the Washington State Department of Labor & Industries (“L&I”) has updated the criteria for workers to be exempt from receiving overtime pay, paid sick leave, and other requirements under the state Minimum Wage Act. These changes affect executive, administrative, and professional workers, as well as outside salespeople and computer professionals across all industries in Washington State.

Overtime exemption rules generally require “white ...

As employers continue to deal with workplace issues related to COVID-19, you should be aware that the U.S. Department of Labor’s Wage and Hour Division (“WHD”) has indicated that it will be investigating allegations of wage and hour violations that have occurred as a result of the rapid workforce changes undertaken by many organizations earlier this year.   Unfortunately, as you may know, the WHD rarely announces those investigations in advance and, instead, employers typically learn of them when a letter arrives announcing 72 hours’ notice to produce payroll records, or a ...

As we wrote about in more detail here, the ongoing coronavirus pandemic has brought increased attention to the legal and practical distinctions between employees (who are entitled to various compensation and employment benefits under the law) and independent contractors (who generally are not).  The pandemic has also prompted lawmakers at the federal, state, and local level to explore further legislation designed to provide independent contractors with greater protections under the law.

The Seattle City Council has now passed two ordinances—the “Gig Worker Premium Pay ...

Full-Time and Part-Time Employees under the FFCRA

The Department of Labor’s Wage and Hour Division issued standards governing emergency paid sick leave and expanded family and medical leave available to full-time and part-time employees for COVID-19 related reasons in its April 6, 2020 temporary rule on Paid Leave under the Families First Coronavirus Response Act (“FFCRA”) (the “Temporary Rule”).

Of particular interest to this blog is the Temporary Rule’s discussion of what it means to be a “full-time” or “part-time” employee for purposes of taking ...

Our colleague Jonathan Assia at Epstein Becker Green had recently published a post on the Workforce Bulletin blog that will be of interest to our readers: “Class Action Mooted When Class Representative Settles, Ninth Circuit Rules.”

Following is an excerpt:

On June 3, 2020, the Ninth Circuit dismissed a wage and hour class action on the grounds that once the class representative plaintiff settled his individual claims and no longer had any financial stake in the litigation’s outcome, the entire litigation was moot.

In Brady v. AutoZone Stores, Inc. and Autozoners, LLC ...

Faced with the question of whether unionized employees and their employer can bargain away the right to be compensated for employer-mandated travel time, a California Court of Appeal has ruled that they in fact may not do so.  In Carlos Gutierrez v. Brand Energy Services of California, Inc., the Court concluded that Wage Order 16 (Cal. Code Regs., tit. 8, § 11160) requires that employees be paid for all employer-mandated travel time — and that it cannot be negotiated away by a union and the employer.

The plaintiff in the case was a journeyman scaffold worker at gasoline refineries. He and ...