In Elijah Baer, et al. v. Tesla Motors, Inc., fifteen plaintiffs filed a putative class and Private Attorneys General Act (“PAGA”) representative action lawsuit against Tesla, Inc. (“Tesla”) alleging wage-hour violations of California law. Two of the plaintiffs were employed by Staffmark Investment LLC (“Staffmark”) – a non-party staffing agency – and assigned to work at Tesla for a period in 2020. The other plaintiffs were direct former or current employees of Tesla going back to 2017. After Tesla removed the action to federal court, it moved to compel arbitration.
The plaintiffs signed various arbitration agreements throughout their employment. From the fall of 2018 to May 2022, Tesla utilized a recruiting software called Averture. According to Tesla, Averture required applicants to create a secure online profile with their own personal information. Eight of the plaintiffs signed offer letters with Tesla through Averture containing an arbitration provision. These plaintiffs did not dispute that they signed, and Tesla countersigned, the offer letters.
At some point in 2022, Tesla stopped using Averture and started using a system called Inside Tesla. The security measures applicable to Averture were largely the same as those employed by Inside Tesla; however, applicants who were offered employment under Inside Tesla signed an offer letter and a standalone arbitration agreement. Four of the plaintiffs signed arbitration agreements through the Inside Tesla system.
More than a decade ago, Epstein Becker Green (EBG) created its complimentary wage-hour app, putting federal, state, and local wage-hour laws at employers’ fingertips.
The app provides important information about overtime, overtime exemptions, minimum wages, meal periods, rest periods, on-call time, and travel time, as well as tips that employers can use to remain compliant with the law and, hopefully, avoid class action, representative action, and collective action lawsuits and government investigations.
As the laws have changed over the years, so too has EBG’s free ...
On September 13, 2023, the United States Department of Labor’s (DOL) Wage and Hour Division (WHD) and the U.S. Equal Employment Opportunity Commission (EEOC) entered a Memorandum of Understanding (MOU) to work together to enforce federal laws and regulations that advance equal employment opportunity and fair pay. The MOU outlines procedures for the agencies to increase their coordination in information sharing, joint investigations, trainings, and outreach efforts.
I. Information Sharing
The MOU allows the agencies to consolidate and share information on issues ...
An amended version of AB 1228 was passed in the California Legislature on September 14, 2023, [1] which would raise minimum wages for fast food workers and water down the authority of the new Fast Food Council that was created in a bill passed last year. AB 1228, originally introduced on February 16, 2023, was revised on September 11, 2023 after negotiations occurred between labor unions and the fast food industry. It significantly modifies provisions from the Fast Food Accountability and Standards Recovery Act (FAST Recovery Act) passed last year, which does not go into effect ...
For decades, many employers have rounded non-exempt employees’ work time when calculating their compensation. Maybe they have rounded employee work time to the nearest 10 minutes, maybe to the nearest quarter hour, but they done it. And, generally, the courts have approved of the practice.
But as more and more lawsuits are filed challenging the practice, and as the courts begin to review time-rounding more frequently and more critically, the question employers with time-rounding policies should ask themselves today is this: Why are we still rounding our employees’ time?
Employers with operations both large and small in California are all too familiar with California’s Private Attorneys General Act (“PAGA”), the controversial 2004 statute that permits a single employee to stand in the shoes of the state’s attorney general and file suit on behalf of other employees to seek to recover penalties for alleged Labor Code violations.
PAGA lawsuits are filed with great regularity by members of the plaintiffs’ bar.
And the in terrorem effect of PAGA lawsuits, in which a plaintiff need not satisfy class certification criteria to represent an entire workforce, has led many employers to pay large settlements just to avoid legal fees and the possibility of larger awards -- even when the evidence of unlawful conduct is spotty or entirely absent.
The current statewide minimum wage rate in California is $15.50 for all employers. However, some localities across the Golden State have set their own higher minimum wage rate. For many of these localities, the next increase is set to take effect on July 1, 2023.
For example, in Los Angeles County, the minimum wage increases from $16.04 to $16.78 in the City of Los Angeles and from $15.96 to $16.90 in unincorporated areas. Here is a list of those local cities and counties raising their minimum wage rates:
As the COVID-19 Public Health Emergency has come to an end, employees are heading back to conferences in droves and resuming their usual training activities. While employers big and small understand they must compensate employees for all time worked under the Fair Labor Standards Act (“FLSA”) as well as state and local wage and hour laws, whether attendance at such conferences and other training time constitutes hours worked for non-exempt employees remains a murky area for employers.
Four-Factor Test
Generally, training programs, lectures, meetings, and similar activities are compensable hours worked unless all four of the following factors are true:
More than a decade ago, Epstein Becker Green (EBG) created its complimentary wage-hour app, putting federal, state, and local wage-hour laws at employers’ fingertips.
The app provides important information about overtime exemptions, minimum wages, overtime, meal periods, rest periods, on-call time, travel time, and tips that employers can use to remain compliant with the law—and, hopefully, to avoid class action, representative action, and collective action lawsuits and government investigations.
Generally speaking, the FLSA requires that employers pay employees the required minimum wage and overtime for all hours worked in excess of 40 hours in any workweek (at a rate of one and one-half times the employee’s regular rate of pay). Accordingly, courts have consistently held that the FLSA provides employees with a basis to sue for the recovery of unpaid wages if an employee is paid below the required minimum wage or an employee is not adequately compensated for overtime hours worked in excess of 40 hours.
But what about claims that do not fit neatly into either of those two buckets? Cue in gap-time claims.
We seem to say this every year -- December always seems to go by far too fast. And with holidays and vacations, not to mention many employees still working remotely, it’s not unusual for matters to be put off until the new year — or for a project or two to fall through the cracks.
In reversing a Nevada district court’s grant of summary judgment, the Ninth Circuit, in Cadena v. Customer Connexx LLC, recently held that the time call center employees spent booting up their computers is compensable. Because a functioning computer was necessary for the call center employees to do their job, the court unanimously agreed that the time required to turn on their computer and log in was “integral and indispensable to their principal activities” and, therefore, compensable, subject to certain limitations.
work·week | \ ˈwərk-ˌwēk \
noun
Perhaps one of the most important terms of art under the Fair Labor Standards Act (“FLSA”), an employer’s designated workweek impacts nearly every aspect of an employee’s pay – from minimum wage and overtime to application of most exemptions. Let’s break down this concept.
What is a workweek?
The FLSA regulations define workweek as “a fixed and regularly recurring period of 168 hours - seven consecutive 24-hour periods.” Contrary to popular belief, a workweek need not coincide with a calendar week, nor must it align with an employer’s hours of operation. Instead, it can begin on any day and at any hour of the day. However, the key is that once a workweek is determined, it must remain fixed regardless of the employees’ hours worked with limited exception.
Employers based outside of California can suffer knockout blows if they enter the ring as employers in California and operate under the mistaken assumption that adherence to the Fair Labor Standards Act (“FLSA”) is the same as complying with the California Labor Code and Wage Orders. Below are the main ways (but certainly not the only ways) employers are “caught cold” because they do not receive or apply California wage-and-hour training and learn the hard way that the plaintiffs’ bar will not pull any punches.
Our colleague Michael S. Kun at Epstein Becker Green was recently quoted in SHRM, in “How to Respond to Class Actions,” by Allen Smith.
Following is an excerpt:
Frequently involving wage and hour issues, class actions against employers can result in lengthy litigation, but early response to them may reduce damages. This article, the first in a two-part series on class actions, examines strategies for responding to such actions, including how to interact with current employees who are seeking information on a lawsuit. The second part explains the differences among class, collective and representative actions. …
Pursuant to two voter initiatives, Michigan has a new minimum wage of $12 per hour, as well as a requirement that employees be provided up to 72 hours of paid sick leave – but those changes will not go into effect until February 19, 2023.
In 2018, two initiatives – the Improved Workforce Opportunity Wage Act (2018 PA 368) and the Earned Sick Time Act (2018 PA 369) – were presented to the Michigan legislature. The wage initiative raised the minimum wage to $12 per hour by 2022. The paid sick time initiative required most employers to provide up to 72 hours of paid sick leave per year.
Litigators who defend cases brought under the Fair Labor Standards Act (“FLSA”), particularly ‘collective actions” alleging wage-and-hour violations, often have been able to counter, or even sometimes support, allegations that arbitration agreements have been waived where the conduct of a party has caused prejudice to the other side. In the case of Morgan v. Sundance, Inc., a unanimous Supreme Court has now held that the determinant of waiver is solely dependent upon the nature and magnitude of the actions of the party that might be inconsistent with arbitration, without respect to alleged prejudice.
Years ago, Epstein Becker Green (“EBG”) created its free wage-hour app, putting federal, state, and local wage-laws at employers’ fingertips.
The app provides important information about overtime exemptions, minimum wages, overtime, meal periods, rest periods, on-call time, travel time, and tips.
As the laws have changed, so, too, has EBG’s free wage-hour app, which is updated to reflect those developments.
A number of years ago, I received a kind note around the holidays from my opposing counsel in a wage-hour class action, thanking me and my firm for being their “partners” in addressing employment issues.
Maybe the word he used wasn’t “partners,” but it was something close to it.
At first, I must admit that I thought he was joking.
Then I realized that this attorney, for whom I have great respect, got it.
He got that employers are not looking to violate employment laws, and that the attorneys who represent them are not trying to help their clients violate the laws.
December is not the shortest month of the year, but it always seems to go by the fastest.
And with holidays and vacations, not to mention employees working remotely, it’s not unusual for matters to be put off until the new year -- or for a project or two to fall through the cracks.
Often times, there are no real consequences if a project gets pushed off into the new year.
But that’s not the case with new state or local wage-hour laws.
As reflected in the charts below, minimum wages increased in dozens of states and localities when the new year rang in on January 1, 2022 – and exempt salary thresholds also increased in some states effective January 1, 2022.
Employers grappling with the many questions related to bringing employees back into the workplace safely in the midst of the COVID-19 pandemic should pay close attention to the potential wage-and-hour risks attendant to doing so—including whether to pay employees for time spent waiting in line for a temperature check, verifying vaccination status, or completing other health screening inquiries.
Given the growing trend of COVID-19 lawsuits, ignoring these risks could leave employers vulnerable to costly class and collective action litigation.
What the Law Requires
Under ...
1. Introduction
If you have hourly employees that earn bonuses, commissions, or other performance payments, this article is for you.
Properly compensating such employees is often not as simple as paying “time and a half” or “double-time” for qualifying hours. Rather, federal law, and the laws of many states, require employers to “recalculate” overtime rates to include certain types of non-hourly compensation and pay overtime at those higher rates. Many employers fail to make such payments, and of those that attempt to pay overtime (and double-time) at rates which ...
On July 19, 2021, Delaware Governor John Carney signed legislation that will gradually increase the state’s minimum wage to $15 per hour by 2025. This is a substantial increase from Delaware’s current minimum wage of $9.25 per hour. The minimum wage requirements apply to all employers who employ individuals in the state.
Following the examples set by neighboring Maryland and New Jersey, Delaware’s minimum wage increase will occur in phases. Effective January 1, 2022, the minimum wage will increase to $10.50 per hour. Thereafter, the minimum wage will increase annually on the ...
With the United States in the midst of dealing with the coronavirus pandemic, there has been focused attention on the rollout of vaccines approved for emergency use by the U.S. Food and Drug Administration, and the actual number of individuals being vaccinated. Presently, 250 million COVID-19 vaccine shots have been administered and individuals 16 years of age and older are eligible to receive the vaccine. Now, in an effort to get more people vaccinated, employers are being encouraged to provide paid time off for employees who have not yet been vaccinated against the virus.
Federal ...
The Wage and Hour Division of the U.S. Department of Labor (“WHD”) issued six opinion letters in January 2021.[1] They address a number of important issues under the Fair Labor and Standards Act (“FLSA”). To ensure wage and hour compliance, we recommend reviewing these letters closely and consulting counsel with any questions as to how they may apply to a specific business situation.
FLSA2021-1
In FLSA2021-1, the WHD addressed whether account managers employed by a life science products manufacturer were properly classified as exempt from the FLSA minimum wage and ...
As part of a “third wave” of executive orders, on January 22, 2021, President Biden issued an executive order instructing the Director of the U.S. Office of Personnel Management to “provide a report to the President with recommendations to promote a $15/hour minimum wage for Federal employees.” The Biden Administration announced via a Fact Sheet published on the White House’s website that the move is purportedly designed to ensure that the federal government is a model employer:
[Federal employees] keep us healthy, safe, and informed, and their work transcends partisan ...
To close out 2020, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) recently issued two new opinion letters addressing overtime payments for caregivers and travel time for partial-day teleworkers under the Fair Labor Standards Act (“FLSA”). We recommend a close review of these opinion letters as they offer a helpful overview of key FLSA principles and may provide answers to questions shared by numerous employers.
FLSA2020-19
In Opinion Letter FLSA2020-19, the WHD addressed whether an employee who voluntarily teleworks for part of the day and works at the ...
At the time we are posting this, we are just weeks away from the inauguration of President-Elect Joseph Biden. Although perhaps not at the very top of the list of questions about the forthcoming Biden administration, somewhere on the list has to be this question: “What changes will we see in wage-hour law?”
We don’t have the proverbial crystal ball, but there are a number of issues that the Biden administration may focus on at some point during the next four years, be it through legislation, new rules implemented by the Department of Labor (DOL) or even executive orders. They may ...
Many employers may be eager to put 2020 in the rearview mirror. But before ringing in the New Year, employers should carefully evaluate whether they need to make any changes to their current practices to ensure that they remain in compliance with state and local laws, including those relating to minimum wage.
As reflected in the chart below, in 2021, minimum wage will increase in more than two dozen states, with most of the changes set to take effect on January 1. Minimum wage will also increase at the local level in a number of counties and cities. Accordingly, employers with minimum wage ...
Which state’s wage and hour laws apply to Louisiana employers whose employees applied and interviewed for their jobs in Louisiana, acknowledged receipt of employment documents in Louisiana, and resided in Texas, Mississippi, and Ohio while they worked offshore? The answer, according to the California Court of Appeals, is California if the employees are based in California.
In Gulf Offshore Logistics, LLC et al. v. Superior Court of Ventura County, employees worked on a vessel that provided maintenance services to offshore oil platforms located outside California’s ...
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 ...
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 ...
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 ...
Let me be the millionth person to say that we are living in unprecedented times.
Well, unless you count the Spanish Flu, which few of us probably dealt with as that was more than a century ago.
And, not incidentally, few if any of the wage-hour laws employers deal with today were in place back then.
As employers navigate issues that they never imagined, there are more than a few myths circulating about wage-hour laws that are worth mentioning here – and worth debunking.
Myth No. 1: “Employees Won’t Sue Over Alleged Wage-Hour Violations Occurring During The COVID-19 Crisis”
The ...
Generally, the Fair Labor Standards Act (“FLSA”) requires employers to compensate their non-exempt employees for all time that they are required or allowed to perform work, regardless of where and when the work is done. However, an exception exists for small amounts of time that are otherwise compensable work time but challenging to record, otherwise known as the de minimis doctrine. Of course, the million-dollar question is how much time is considered de minimis. Unfortunately, there is no bright-line rule and the answer may differ under federal law and California law, or ...
Most employers are well aware that employees must be paid on a “salary basis” to be considered exempt from the overtime requirements of the Fair Labor Standards Act (“FLSA”). This means employees must receive the same amount of pay each week regardless of the amount or quality of work they perform for a given week. Accordingly, exempt employees must be paid their full weekly salary for any week in which they perform work, whether or not the employee has actually worked a full work week. See 29 C.F.R. § 541.602(a)(1).
One issue that may fly under the radar, however, is which ...
On Thursday, January 16, 2020, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) published in the Federal Register the much-anticipated Final Rule regarding joint employer status under the Fair Labor Standards Act. This rule completes the rulemaking process initiated in early April of last year, when WHD published its Notice of Proposed Rulemaking (“NPRM”), which we discussed here.
The new standards reflected in the Final Rule become effective, barring court action in the interim, on March 16, 2020. This interval of just 342 days from publication of the NPRM ...
In its first installment of opinions letters in 2020, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) addressed two issues under the Fair Labor Standards Act (“FLSA”): (i) the salary basis requirements in the context of per-project compensation arrangements and (ii) calculation of overtime pay for employees who receive nondiscretionary lump-sum bonus payments earned over time and not tied to a specific period. (A third letter, FMLA2020-1-A, considered FMLA requirements vis-à-vis public employees.) While neither of these FLSA opinion letters ...
With the start of the New Year, new state and local minimum wage increases have gone into effect for non-exempt employees across the country.
The chart below summarizes the new minimum wage rates that went into effect on January 1, 2020, unless otherwise indicated. (More will take effect July 1, 2020.)
| Jurisdiction | Current Minimum Wage | New Minimum Wage |
| Alaska | $9.89 | $10.19 |
| Albuquerque NM (No Benefits) | $9.20 | $9.35 |
| Albuquerque NM (Benefits) | $8.20 | $8.35 |
| Arizona | $11.00 | $12.00 |
| Arkansas | $9.25 | $10.00 |
| Belmont CA | $13.50 | $15.00 |
| California (≥ 26 employees) | $12.00 | $13.00 |
| California ... |
It seems as though there is a minefield that employers must navigate to ensure that they fulfill their wage and hour obligations to their employees. Employers must somehow comply with overlapping and seemingly contradictory federal, state, district, county, and local requirements. The wave of civil actions that are filed against employers alleging wage and hour violations is not slowing. And given the potential financial consequences for non-compliance, illustrated in part by a $102 million award for technical paystub violations, meeting these requirements must be a ...
As winter once again approaches, employers, particularly those in cold-weather states, face the recurring specter of inclement weather affecting business operations and employee attendance. While the weather may create stress and disruption for a business and its people, employers must not lose sight of the fact that the rules governing how you pay your employees continue to apply throughout any weather event.
There are five main rules that employers need to keep in mind when bad weather strikes:
1. If a business closes for any amount of time less than a full workweek, it must ...
On November 26, 2019, San Francisco Superior Court Judge Richard B. Ulmer ruled that the Federal Arbitration Act (“FAA”) might not apply to Uber drivers who are engaged in interstate commerce while driving passengers to or from international airports.
In his claims before the Division of Labor Standards and Enforcement (“DLSE”), driver Sangam Patel (“Patel”) seeks recovery of unpaid wages, overtime pay, vacation pay, meal and rest break premiums, and unpaid business expenses allegedly owed by Uber. Uber petitioned to compel arbitration of Patel’s (“Patel” ...
On November 21, 2019, the Pennsylvania Department of Labor and Industry (“DLI”) formally withdrew new regulations that would have increased the minimum salary requirements for the Pennsylvania Minimum Wage Act’s (“PMWA”) white-collar exemptions. The withdrawal occurred on the same day the state’s Independent Regulatory Review Commission (“IRRC”) was scheduled to consider the new requirements and rule upon them at a public meeting.
The Withdrawn Rule
The final rule was issued on October 17, 2019, and would have increased the minimum salary threshold for the ...
After a false start three years ago, the federal Department of Labor (“DOL”) will finally be rolling out an increased minimum salary threshold for employees qualifying under the “white collar” exemptions. The increase in the salary threshold for professional, administrative, and executive exemptions (making up the “white collar” exemptions) under the Federal Fair Labor Standards Act (“FLSA”) will become effective on January 1, 2020.
In order to qualify for one of these exemptions, there are three elements to meet:
- The employee must be paid on a salary basis ...
As we wrote here recently, California’s Governor Gavin Newsom signed a bill known as AB5, which is designed to make it more difficult for companies to treat workers as independent contractors. The new law, which goes into effect on January 1, 2020, codified and expands 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 classified as employees or as independent contractors.
Now some gig economy businesses are striking back. On October 29, 2019, a coalition of ...
On August 26, 2019, we wrote of the plan by the U.S. Department of Labor’s Wage and Hour Division (“WHD”) to update the Fair Labor Standard Act (“FLSA”) regulations on calculating overtime pay for salaried non-exempt workers to allow employers to include additional forms of compensation in the so-called “fluctuating workweek” calculations. Under a fluctuating workweek calculation, an employer divides all of an employee’s relevant compensation for a given workweek by the total number of hours the employee worked in the week to derive the regular rate for that ...
California law has specific requirements regarding the payment of final wages to terminated employees. The failure to comply with those requirements can require an employer to pay an individual up to 30 days of pay – known as “waiting time” penalties. As “waiting time” claims are often pursued in the context of class actions, where plaintiffs seek up to 30 days of pay for each former employee, it is critical that employers understand when final wages must be paid. And that deadline is different depending up whether the company has terminated the employment or the employee has ...
Our colleague Jeffrey H. Ruzal a
Following is an excerpt:
The proposed rulemaking will codify the DOL’s recent guidance that an employer may take a tip credit for any amount of time an employee in a tip-earning occupation performs related non-tipped duties that are performed contemporaneously with, or within a reasonable time immediately before or after ...
What is considered compensable travel time pursuant to the Fair Labor Standards Act (“FLSA”) is not always clear or intuitive to employers, even for those who usually have a good handle on wage and hour laws. This blog post hopefully will simplify the requirements set forth in the U.S. Department of Labor’s (“DOL”) regulations and interpretive guidance to help clarify when employees must be paid for travel time.
Ordinary Home-to-Work Travel
Likely not a surprise for most employers, employees are not entitled to pay for time that they normally spend commuting between their ...
There may soon be a fair number of big rig trucks for sale in California, as well as computers, desks and other material investments of persons who determine that they may no longer offer their services as independent contractors and must shut down their small businesses, a potential repercussion of new legislation intended to restrict the use of independent contractor status in the state.
Whether those and other practical consequences of the hurried passage of the new law were considered by the California legislature is unclear.
But the eleventh-hour exemptions that were extended ...
The U.S. Department of Labor’s Wage and Hour Division (“WHD”) continues to issue guidance at a rapid pace, releasing a new opinion letter regarding the retail or service establishment overtime exemption under the Fair Labor Standards Act (“FLSA”). The letter brings clarity to a recurring issue affecting retailers.
FLSA Section 7(i) Exemption
As background, FLSA Section 7(i) exempts a retail or service establishment employee from the FLSA’s overtime pay requirements if (i) the employee’s regular rate of pay exceeds 1.5 times the federal minimum wage for any week ...
A number of years ago – 20 perhaps – someone shared with me a study that was conducted by a major university where participants were asked which professions they most distrust.
My recollection is that it was conducted at Duke University, but I could be wrong. (I do remember distinctly that there were 998 participants in the survey, which still seems like a peculiar number to me. They couldn’t find two more people?)
In any event, one spot from the top of the list of most distrusted professions (or the bottom, depending on your perspective) was used car salespersons. Yes, I know, a ...
As the result of a sweeping “Wage Theft” law (“Law”), which became effective upon enactment on August 6, 2019, New Jersey employers will face toughened penalties and increased exposure for failure to pay wages, benefits and overtime (collectively “wages”) owed to workers. Employers should take immediate notice because any missteps or mistakes may prove extremely costly. In sum, the Law:
- makes employees eligible to receive 200% liquidated damages for all unpaid wages and benefits and recovery of attorneys’ fees and costs;
- permits employees to bring collective ...
At a time when many states and localities are increasing the minimum wage, New Hampshire’s Senate passed a bill that would increase the state’s minimum wage to $12 per hour by 2022. The very next day, New Hampshire Governor Chris Sununu vetoed the bill. In doing so, Governor Sununu issued a veto message that said the bill would have a “detrimental effect” on the state’s residents and would lead to lost jobs, reduced hours, and less money in the pockets of employees.
Governor Sununu boasted that New Hampshire has the lowest poverty rate in the country, along with one of the lowest ...
This Employment Law This Week® Monthly Rundown discusses the most important developments for employers in August 2019.
This episode includes:
- Increased Employee Protections for Cannabis Users
- First Opinion Letters Released Under New Wage and Hour Leadership
- New Jersey and Illinois Enact Salary History Inquiry Bans
- Deadline for New York State Anti-Harassment Training Approaches
- Tip of the Week
See below to watch the full episode – click here for story details and video.
We invite you to view Employment Law This Week® – tracking the latest developments that could ...
Given the prevalence of wage-hour class actions filed against California employers, the Ninth Circuit Court of Appeals from time to time asks the California Supreme Court to clarify certain California wage-hour laws. Last week, the Ninth Circuit asked again in Cole v. CRST Van Expedited, Inc., seeking clarification on the following two questions:
- Does the absence of a formal policy on meal and rest breaks violate California law?
- Does an employer’s failure to keep records of meal and rest breaks taken by employees create a rebuttable presumption that the breaks were not provided?
For decades, employers have rounded non-exempt employees’ work time when calculating their compensation. Maybe they have rounded employee work time to the nearest 10 minutes, maybe to the nearest quarter hour, but they done it and, generally, the courts have approved of it.
But the question employers with time-rounding policies should ask themselves today is this: Why are we still rounding our employees’ time?
If your answer to that question is Because we have always done it, or Because someone told us it is lawful, it might be time to rethink the issue.
(And if your answer is ...
Connecticut appears poised to become the next state to raise its minimum wage to $15 per hour, following the trend set by California, Illinois, Massachusetts, New Jersey, New York, and most recently Maryland, in addition to numerous local jurisdictions. Governor Ed Lamont is expected to sign H.B. 5004, which passed the state’s House and Senate earlier this month.
Under the bill, the state’s current minimum wage of $10.10 will increase to $11 on October 1, 2019. From there, it will increase one dollar every eleven months until it reaches $15 on June 1, 2023. Thereafter, increases ...
Webinar – Spring/Summer 2019
Internship programs can help employers source and develop talent, but they do not come without their pitfalls. If you are an employer at a tech startup, a large financial institution, a fashion house, or something else entirely, and you plan on having interns this summer, this webinar is for you. Learn the steps for creating a legally compliant internship program.
For many years, the U.S. Department of Labor (“DOL”) used the “six-factor test” when determining whether an employee was legally considered an unpaid intern, such that the intern ...
The U. S. Supreme Court established limitations on personal jurisdiction over non-resident corporate defendants in state court “mass” actions in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 137 S. Ct 1773 (June 17, 2017) (hereafter “BMS”). BMS’s key holding was that the necessary nexus between an appropriate court for a mass action and a corporate defendant required more than just the company’s connections in the state and the alleged similarity of claims by resident plaintiffs and non-resident plaintiffs. The practical effect is ...
On February 1, 2019, the U.S. Department of Labor publicly designated Keith Sonderling as Acting Administrator of the Wage and Hour Division (“WHD”). He joined WHD in September 2017 as a Senior Policy Advisor, receiving a promotion to Deputy Administrator last month. Before joining the Department, he was a shareholder in the Gunster law firm in West Palm Beach, Florida, where he represented businesses in labor and employment matters.
During his time with WHD, Sonderling has been a strong proponent of the agency’s Payroll Audit Independent Determination program (known as ...
Featured on Employment Law This Week: The Department of Labor (“DOL”) rolls back the 80/20 rule.
The rule prohibited employers from paying the tipped minimum wage to workers whose untipped side work—such as wiping tables—accounted for more than 20 percent of their time. In the midst of a federal lawsuit challenging the rule, the DOL reissued a 2009 opinion letter that states that the agency will not limit the amount of side work a tipped employee performs, as long as that work is done “contemporaneously” with the tipped work or for a “reasonable time” before or after ...
Joining several other federal appellate courts including the Fourth and Ninth Circuits , on October 22, 2018 the Seventh Circuit concluded in Herrington v. Waterstone Mortgage Corporation, No. 17-3609 (7th Cir. Oct. 22, 2018) that the arbitrability of a class claim is one for the court to decide, not the arbitrator. In so doing, the court placed in jeopardy a $10 million arbitration award in a wage-hour case.
Herrington originally filed suit against Waterstone, alleging that Waterstone failed to pay her and other employees minimum wages and overtime pay in violation of the FLSA ...
The question whether an individual may be held liable for alleged wage-hour violations is one that occasionally arises in class action litigation – and, for obvious reasons, it is one that is particularly important to individuals who own entities or who are responsible for overseeing wage-hour compliance.
In Atempa v. Pedrazzani, the California Court of Appeal held that persons responsible for overtime and/or minimum wage violations in fact can be held personally liable for civil penalties, regardless of whether they were the employer or the employer is a limited liability ...
On July 18, 2018, the Ninth Circuit issued a published opinion in Rodriguez v. Taco Bell Corp., approving Taco Bell’s on-premises meal periods for employees who choose to purchase discounted food.
Like many food services employers, Taco Bell offers discounts on its food to its employees. And it requires that employees consume such food on premises.
In Rodriguez, employees contended that requiring employees to consume discounted meals on premises results in a meal period or unpaid wage violation, arguing that employees must be relieved of all duty and must be permitted to leave the ...
In most wage and hour cases, each workweek gives rise to a separate claim, at least for statute of limitations purposes. Thus, an employee seeking payment for alleged off-the-clock work or an independent contractor claiming misclassification and entitlement to overtime ordinarily may seek back wages and related recovery only for work performed within a set amount of time—usually two to six years preceding the filing of the complaint, depending on the jurisdiction—preceding the filing of the complaint. But what happens to the statute of limitations when a plaintiff tries to ...
More than 7 months after hearing oral argument on an issue that will affect countless employers across the country – whether employers may implement arbitration agreements with class action waivers -- the United States Supreme Court has issued what is bound to be considered a landmark decision in Epic Systems Corp. v. Lewis (a companion case to National Labor Relations Board v. Murphy Oil USA and Ernst & Young LLP v. Morris), approving the use of such agreements.
The decision will certainly have a tremendous impact upon pending wage-hour class and collective actions, many of which ...
In 2012, we were proud to introduce our free wage and hour app. Over the years, thousands of clients and potential clients have downloaded the app on their mobile phones and tablets.
For 2018, we are pleased to introduce a brand-new version of the app, available without charge for iPhone, iPad, and Android devices. See our press release here.
Importantly, the 2012 and 2014 versions of the app have been retired. If you had downloaded them, you will need to download the new version.
The new version of the app includes wage-hour summaries for all 50 states, as well as D.C. and Puerto ...
On April 12, 2018, the Wage and Hour Division of the U.S. Department of Labor (“DOL”) issued the first Opinion Letters since the Bush administration, as well as a new Fact Sheet. The Obama administration formally abandoned Opinion Letters in 2010, but Secretary of Labor Alexander Acosta has restored the practice of issuing these guidance documents. Opinion Letters, as Secretary Acosta states in the DOL’s April 12 press release, are meant to explain “how an agency will apply the law to a particular set of facts,” with the goal of increasing employer compliance with the Fair ...
Featured on Employment Law This Week: The Ninth Circuit held that certain auto service advisors were not exempt because their position is not specifically listed in the FLSA auto dealership exemption.
The 9th relied on the principle that such exemptions should be interpreted narrowly. In a 5-4 decision last week, the Supreme Court found no “textual indication” in the FLSA for narrow construction. Applying a “fair interpretation” standard instead, the Court ruled that the exemption applies to service advisors because of the nature of the work.
Watch the segment below ...
In Tze-Kit Mui v. Massachusetts Port Authority, Massachusetts’ highest court held that Massachusetts law does not require employers to pay departing employees for accrued, unused sick time within the timeframe prescribed for “wages,” as the term is defined by the Massachusetts Wage Act.
In reaching its decision, the Court analyzed the plain meaning of “wages” under the Act and concluded that the legislature did not intend that “wages” would include sick time. The decision removes a significant concern for Massachusetts employers who are strictly liable for ...
As 2017 comes to a close, recent headlines have underscored the importance of compliance and training. In this Take 5, we review major workforce management issues in 2017, and their impact, and offer critical actions that employers should consider to minimize exposure:
- Addressing Workplace Sexual Harassment in the Wake of #MeToo
- A Busy 2017 Sets the Stage for Further Wage-Hour Developments
- Your “Top Ten” Cybersecurity Vulnerabilities
- 2017: The Year of the Comprehensive Paid Leave Laws
- Efforts Continue to Strengthen Equal Pay Laws in 2017
Our colleagues , at Epstein Becker Green, have a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers: “New Jersey’s Appellate Division Finds Part C of the “ABC” Independent Contractor Test Does Not Require an Independent Business”
Following is an excerpt:
In a potentially significant decision following the New Jersey Supreme Court’s ruling in Hargrove v. Sleepy’s, LLC, 220 N.J. 289 (2015), a New Jersey appellate panel held, in Garden State Fireworks, Inc. v. New Jersey Department of Labor ...
As courts continue to address whether and when employers can compel employees to arbitrate their wage-hour claims, the California Court of Appeal has issued a decision in Cortez v. Doty Bros. Equipment Company, No. B275255, ___ Cal. App. 5th ___ (2017), that should be of great help to many California employers with collective bargaining agreements (“CBAs”) that include arbitration provisions.
The United States Supreme Court and multiple California courts have held that a CBA may require arbitration of an employee’s statutory claims only if the CBA includes a “clear and ...
Featured on Employment Law This Week: The U.S. Supreme Court takes on class action waivers.
In 2012, the National Labor Relations Board (NLRB) ruled that class action waivers in arbitration agreements violate employees’ rights under the National Labor Relations Act (NLRA). The U.S. Court of Appeals for the Second, Fifth, and Eighth Circuits disagreed, finding that these waivers do not violate the NLRA and are enforceable under the Federal Arbitration Act. More recently, the Seventh and Ninth Circuits sided with the NLRB on the issue. The Supreme Court will consider three ...
In the new issue of Take 5, our colleagues examine five employment, labor, and workforce management issues that will continue to be reviewed and remain top of mind for employers under the Trump administration:
Read the full Take 5 online or download ...On January 13, 2017, the United States Supreme Court granted certiorari to hear three cases involving the enforceability of arbitration agreements that contain class action waivers.
Whether such agreements are enforceable has been a hotly contested issue for several years now, particularly in cases involving wage-hour disputes.
The Fifth Circuit has held that such waivers can be enforceable (NLRB v. Murphy Oil, Inc.), joining the Second and Eighth Circuits in that conclusion. The Seventh (Epic Systems, Inc. v. Lewis) and Ninth Circuits (Ernst & Young LLP v. Morris) have held that ...
On October 21, 2016, a Pennsylvania appeals court found that a group of franchisees were in violation of the state’s Wage Payment and Collection Law (“WPCL”) when they required employees to be paid with payroll debit cards. While the WPCL only permitted wage payment in cash or check, the Pennsylvania court noted that voluntary use of payroll debit cards may be an appropriate method payment. In this case, the court held that mandatory use of payroll debit cards was not lawful, as it may subject the employee to fees without his or her consent.
Two weeks later, on November 4, 2016, the ...
Over the past year, there has been an increased discussion of Fair Labor Standards Act (“FLSA”) requirements for tipped employees. The courts have focused on a number of issues related to tipped employees, including addressing who can participate in tip pools and whether certain deductions may be made from tips. While the FLSA requires employers to pay a minimum wage of $7.25 per hour in most cases, Section 203(m) of the FLSA provides that employers may take a “tip credit” and pay as little as $2.13 per hour to employees who customarily and regularly receive tips, so long as two ...
Brian W. Steinbach, attorney at Epstein Becker Green, has a post on the Hospitality Labor and Employment Law Blog that will be of interest to many of our readers: “Southern District of New York’s Rejection of FLSA Settlement Highlights Need to Settle on Terms That Will Pass Judicial Muster.”
Following is an excerpt:
In rejecting the terms of a collective action settlement in Yun v. Ippudo USA Holdings, No. 14-CV-8706 (S.D.N.Y. March 24, 2016) the United States District Court for the Southern District of New York has confirmed the significance of last year’s Second Circuit ...
On September 11, 2015 the U.S. Court of Appeals for the Eleventh Circuit announced that it joined the Second Circuit in rejecting the U.S. Department of Labor’s (“DOL”) rigid six part test for determining whether unpaid interns were employees and should have been paid minimum wages and overtime for their services. Schumann and Abraham et al v Collier Anesthesia, P.A., Wolford College, LLC, Thomas Cook and Lynda Waterhouse, No. 14-13169, 2015 BL 294459 (11th Cir. Sept. 11, 2015), citing to Glatt v. Fox Searchlight Pictures, Inc., Nos. 13-4478-cv, 13-4481-cv (2d Cir. July 2 ...
Many of our clients have downloaded our free, first-of-its-kind Wage & Hour Guide for Employers app, available for Apple, Android, and BlackBerry devices.
We have just updated the app, and the update is a significant one.
While the app originally included summaries of federal wage-hour laws and those for several states and the District of Columbia, the app now includes wage-hour summaries for all 50 states, as well as D.C. and Puerto Rico.
Now, more than ever, we can say that the app truly makes nationwide wage-hour information available in seconds. At a time when wage-hour ...
By: Jeffrey M. Landes and Susan Gross Sholinsky
The presentation slides and the recording for the webinar - Creating and Maintaining a Lawful Internship Program - are now accessible for your viewing. If you would like to review, please contact Kiirsten Lederer to obtain instructions.
During this timely and important webinar, we discussed how to minimize both your organization's liability and the risk of wage and hour lawsuits. Specifically, participants walked away with answers to the following questions:
- What are the best practices for recruiting and hiring interns, and what ...
In a complimentary webinar on May 22 (1:00 p.m. ET), our colleagues Jeffrey M. Landes and Susan Gross Sholinsky will present a webinar on how to strategically structure internship programs to comply with applicable wage and hour guidelines.
Join us for a discussion on how to minimize both your organization's liability and the risk of wage and hour lawsuits. In particular, below are just a few of the many questions we will address during the webinar:
- What are the best practices for recruiting and hiring seasonal interns, and what critical language should you include (or avoid) in ...
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 Douglas Weiner and Kara Maciel
“There’s a new sheriff in town.” With those words in 2009, Secretary Hilda Solis initiated a policy at the Department of Labor that emphasized increased investigations and prosecutions of violators rather than the prior administration’s emphasis on providing compliance assistance.
Her departure – announced yesterday – is unlikely, however, to have much effect on the Department’s current aggressive enforcement policy, as the top enforcement officer of the Department remains Solicitor of Labor M. Patricia Smith. Solicitor ...
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: Kara M. Maciel
Hurricane Sandy is approaching this weekend, so employers along the East Coast should refresh themselves on the wage and hour issues arising from the possibility of missed work days in the wake of the storm.
A few brief points that all employers should be mindful of under the FLSA:
- A non-exempt employee generally does not have to be paid for weather-related absences. An employer may allow (or require) non-exempt employees to use vacation or personal leave days for such absences. But, if the employer has a collective bargaining agreement or handbook policies, the ...
By: Adam C. Abrahms
Last week Assembly Bill 889 cleared a California State Senate Committee, advancing it one step closer to becoming state law. The bill, authored by Assemblyman Tom Ammiano (D – San Francisco), seeks to extend most of California’s strict wage and hour regulations to domestic employees working in private homes. While the bill excludes babysitters under the age of 18, it extends California wage and hour protections to babysitters over the age of 18 as well as any other housekeeper, nanny, caregiver or other domestic worker.
Should the bill become law individual ...
By: Greta Ravitsky and Jordan Schwartz
On July 24, 2012, the Fifth Circuit became the first federal appellate court in over thirty years to enforce a private settlement of a wage and hour dispute arising under the Fair Labor Standards Act (“FLSA”) in Martin v. Spring Break ’83 Productions LLC.
For decades, federal courts have consistently held that FLSA wage and hour disputes may not be settled privately without approval from either the Department of Labor (“DOL”) or a federal district court. This apparently “settled” area of law was based exclusively on the Eleventh ...
By Michael S. Kun and Aaron F. Olsen
Earlier this week, the California Court of Appeals issued a ruling in Iskanian v. CLS Transportation Los Angeles, LLC that illustrates how the legal landscape in California has shifted in favor of enforcing arbitration agreements with class action waivers. This, of course, is a welcome development for employers with operations in California, which have been besieged by class action lawsuits alleging wage-and-hour violations for the past 10+ years.
In 2006, the plaintiff in Iskanian filed a putative class action complaint against his ...
The Seventh Circuit has ruled that pharmaceutical sales representatives are covered by the Administrative exemption to the FLSA because “the core function of the representatives’ duties, the physician office visits,” requires significant discretion and independent judgment. While other courts have applied a case specific analysis to determine the applicability of the Administrative exemption in this context, the Seventh Circuit’s analysis appears to be applicable to virtually all sales representatives in the pharmaceutical ...
By Douglas Weiner and Meg Thering
The U.S. Department of Labor (“DOL”) has announced that it has been finding “patterns of violative pay practices” in gas stations throughout New York, Long Island, and New Jersey. Last year, in New Jersey alone, the Department of Labor, through its multi-year enforcement initiative, conducted 74 investigations of gas stations and ordered employers to pay over $1 million in back pay to employees.
As many commuters know, long daily and weekly hours are the norm for many employees in the gas station industry. Enhanced enforcement activity ...
Blog Editors
Recent Updates
- California Minimum Wage Will Still Increase Even Though Voters Rejected a Minimum-Wage Hike
- Not So Final: Texas Court Vacates the DOL’s 2024 Final Overtime Rule
- Voters Decide on State Minimum Wages and Other Workplace Issues
- Second Circuit Provides Lifeline to Employers Facing WTPA Claims in Federal Court
- Time Is Money: A Quick Wage-Hour Tip on … FLSA Protections for Nursing Mothers