Wage and Hour Defense Blog

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 ...

As states across the country start to reopen their economies after COVID-19 shutdowns, many businesses are likewise preparing to have employees return to work.

However, before reopening, businesses will need to comply with numerous state and local protocols designed to ensure the health and safety of employees and consumers, including social distancing, maximum occupancy and one-way flow.

Even if not required, many employers are instituting employee temperature checks upon arrival at the workplace. While the U.S. Equal Employment Opportunity Commission recently endorsed ...

Many hospitality businesses, such as restaurants and bars, have found themselves restructuring their daily operations in light of the current global COVID-19 health crisis, and the subsequent federal, state, and local shelter in place orders. For instance, where restaurants and bars once served customers on a dine-in basis, perhaps they are now restricted to take-out only or delivery options, and, as a result, many employers who are still operating in the wake of the pandemic now have very few employees with customer-facing roles.

Because of the necessary changes in daily ...

During the Covid-19 pandemic, companies should focus in the first instance on health and safety issues for workers, customers, and the public at large during a pandemic, but they cannot lose sight of the wage and hour risks that are lurking in these challenging times.

For a staggering number of U.S. businesses over the past several weeks, the early and middle part of 2020 will look something like this:

Reduced customer demand or government-ordered site closures lead to furloughs or layoffs of a significant part of the workforce. Where feasible, employees work from home. As local ...

California law has specific requirements regarding the payment of overtime to employees. An employer’s failure to pay overtime—or failure to pay the correct overtime rate—can result in a litany of unintended Labor Code violations, which, in turn, can lead to enormous liability. Therefore, it is critical that employers understand when overtime is due and how to calculate the overtime rate of pay.

1.   When is overtime pay due?

In California, the general overtime requirement is that a nonexempt employee shall receive a premium of at least:

• One and one-half times the employee’s ...

For the second time this week, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) has issued a Final Rule involving the overtime provisions of the Fair Labor Standards Act (the “FLSA”).  Following closely on the heels of the revisions to the section 7(i) exemption regulations discussed here, on May 20, 2020 WHD released its revisions to the regulations regarding the “fluctuating workweek” method of paying overtime to salaried non-exempt employees.  And, as with the 7(i) Final Rule, the fluctuating workweek Final Rule eliminates confusion caused by WHD’s ...

From the time of its original enactment in 1938, the Fair Labor Standards Act has contained an exemption for certain employees of a “retail or service establishment.”  In 1961, the Department of Labor’s Wage and Hour Division (“WHD”) issued interpretive guidance to aid in determining whether an establishment is or is not “retail or service” for purposes of what was then the section 13(a)(2) overtime and minimum wage exemption.  Part of the test includes whether the business is in an industry in which a “retail concept” exists.  See 29 C.F.R. § 779.316.  WHD created ...