After more than 30 years, the National Labor Relations Board (the “Board”) has concluded that it was time to change the standard for determining when companies are to be considered joint employers under the National Labor Relations Act. On August 27, 2015, with its much-anticipated decision in Browning-Ferris Industries of California, Inc., the Board issued a new joint-employer standard that will examine whether an employer has the potential to exercise control over employees’ working conditions and reversed the previous requirement that a joint employer must exercise direct and immediate control over the employees in question.
Lisa Lupion, an associate in Orrick’s New York office, is a member of the employment law group. Orrick’s Employment Law and Litigation group was recently named Labor & Employment Department of the Year in California by The Recorder, the premier source for legal news, in recognition of their significant wins on behalf of leading multinational companies on today’s most complex and challenging employment law matters.
Ms. Lupion’s practice focuses on employment litigation and counseling. She has experience litigating a broad range of employment issues, including discrimination, harassment, wrongful discharge, compensation and wage-and-hour claims before federal and state courts, AAA, JAMS and FINRA. She frequently represents clients in state and federal administrative agencies. Ms. Lupion has also defended class and collective actions under state and federal laws, including claims for overtime, minimum wage, meal and rest break penalties, and expense reimbursements.
Ms. Lupion regularly advises clients on a variety of employment-related issues, including human resources policies and procedures, offer letters, severance agreements and employee termination. As part of her counseling role, she creates and conducts training programs for her clients. Ms. Lupion also has significant experience conducting internal investigations and audits.
Prior to joining Orrick, Ms. Lupion served as a law clerk to the Hon. Peter Leisure in the United States District Court for the Southern District of New York, and she was an associate at Proskauer Rose LLP in New York.
In Cheeks v. Freeport Pancake House, Inc., the Second Circuit held that without the approval of a district court or the U.S. Department of Labor, parties cannot secure a stipulation of dismissal with prejudice of an FLSA claim under Federal Rule of Civil Procedure 41(a)(1)(A)(ii). In practice, this holding will prevent parties to an FLSA litigation – where there is a bona fide dispute as to liability – from reaching a privately negotiated settlement that includes a joint stipulation of dismissal of the case.
The Second Circuit revived an FLSA collective action filed by Michael Lola, an attorney licensed to practice law in California, who for fifteen months performed document review services for Skadden Arps, Slate, Meagher & Flom LLP (“Skadden”) though a staffing agency while living and working in North Carolina. Lola alleged that these services did not constitute the “practice of law,” and that he was therefore eligible for overtime under the Fair Labor Standards Act. Rejecting Lola’s arguments, a Southern District of New York judge dismissed the complaint on a Rule 12(b)(6) motion on the grounds that Lola was exempt from overtime. However, the Second Circuit held that when accepting all of Lola’s allegations as true for purposes of a motion to dismiss, his work might not constitute the practice of law.
In its June 26 split decision in American Baptist Homes of the West d/b/a Piedmont Gardens and Service Employees International Union, United Healthcare Workers- West, 362 N.L.R.B. No. 139 (Case No. 32-CA-063475) (“Piedmont Gardens”), the National Labor Relations Board (“NLRB” or “Board”) adopted a new standard for union access to employers’ witness statements in discipline cases. In so doing, the NLRB overruled the 37-year-old standard articulated in Anheuser- Busch, 237 NLRB 982 (1978), that provided a blanket exemption for the disclosure of witness statements. Instead of a blanket rule, the majority followed the Supreme Court’s 1979 decision in Detroit Edison v. NLRB, 440 U.S. 301 (1979), which requires a case-by-case balancing of the union’s need for the witness statements against the employer’s “legitimate and substantial confidentiality interests.”
In addressing a matter of first impression, the Second Circuit Court of Appeals set out a new standard to determine when an unpaid intern is deemed an employee for purposes of the Fair Labor Standards Act (“FLSA”) and thus entitled to compensation, including minimum wage and overtime, under the FLSA. Two appeals were argued in tandem on this issue with the Second Circuit issuing an Opinion on July 2, 2015 in Glatt v. Fox Searchlight Pictures, Inc., and a Summary Order in Wang v. Hearst Corp.
After months of talk and speculation about new overtime regulations, on June 30, 2015, the United States Department of Labor (“DOL”) issued its proposed rule and request for comments on its “white collar exemption” regulations. The so-called “white collar exemptions” – the executive, administrative and professional employees exemptions – were last revised in August 2004. Assuming the regulations are revised in accordance with the DOL’s proposal, the DOL estimates that 4.6 million workers exempt under the current regulations would become entitled to overtime under the FLSA. In addition, an estimated 36,000 employees who were previously considered “highly compensated” employees under the FLSA would no longer satisfy that definition. Read More
As employers in New York were gearing up for distribution of the annual wage notices in January 2015, Governor Andrew Cuomo finally signed the amendment to New York’s Wage Theft Prevention Act that was passed by the legislature back in June and repeals the annual wage notification provision. While the other amendments to the Act will not take effect for 60 days, the Governor’s December 29, 2014 signing statement and the New York Department of Labor make clear that employers are not required to distribute wage notices to their employees this January. The amendment, however, does not relieve employers of their obligation to provide all newly hired employees with wage notices at the time of hiring. In addition, although not specifically addressed in the amendment to the Act, it would be prudent for employers to distribute a revised wage notice when an employee receives a new position with a different compensation structure during his or her tenure with the employer.
Because of the way the statute is drafted and how courts have interpreted it, employers of current members of the Armed Forces and veterans can sometimes find themselves with unexpected legal exposure under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). The statute imposes various obligations on employers with respect to members of the U.S. military returning to work and also prohibits discrimination against employees and potential employees based on their military service. As 2014 comes to a close, a couple of USERRA cases from this year remind employers of the intricacies of USERRA compliance.
“Sometimes surrender is the best option.” That is how Judge Raymond J. Dearie of the Eastern District of New York begins his opinion in Anjum v. J.C. Penney Co., Inc., before denying J.C. Penney’s motion to dismiss a putative Fair Labor Standards Act (FLSA) collective action based on the company’s offer to pay the claims of four named plaintiffs with offers of judgment under Federal Rule of Civil Procedure 68—a strategy often referred to as “picking off.” Even though the court rejected J.C. Penney’s picking off attempt in this case, the judge’s opinion in Anjum recognizes the validity of this tactic and provides some practical lessons for defense counsel looking to successfully pick off an FLSA collective in the Second Circuit.
On September 9, 2014, Governor Jerry Brown signed AB-2053, which mandates that certain California employers provide workforce bullying training in addition to already-required sexual harassment training and education. As a result, many California employers need to be prepared to expand their training programs to address abusive conduct beginning on January 1, 2015.