On December 1, 2016, the date that the Department of Labor regulations were set to become effective, the government filed a notice of appeal [link to http://dciconsult.com/wp-content/uploads/2016/12/DOL-appeal.pdf] of the November 22, 2016 the United States District Court for the Eastern District of Texas’s Order granting a nationwide preliminary injunction “from implementing and enforcing” the DOL’s new overtime regulations. Those regulations would have raised the minimum salary level for exempt employees from $455 per week ($23,660 annually) to $913 per week ($47,476 annually). The Court’s ruling was based, in part, on its holding that the DOL exceeded its delegated authority by changing the salary basis test at a level that was contrary to Congress’ intent that executive, administrative and professional employees be exempted from coverage of the FLSA. A full copy of the injunction order can be found here. In the wake of the Court’s ruling and now uncertain future regarding the DOL’s new overtime rules, we thought it would be helpful to provide some interim guidance on frequently asked questions we have received since the Court’s ruling. READ MORE
Lisa Lupion, an associate in Orrick’s New York office, has experience litigating a broad range of employment issues, including discrimination, harassment, wrongful discharge and compensation claims before state and federal courts and administrative agencies.
Lisa also has significant experience defending wage-and-hour class and collective action claims under state and federal laws, including claims for overtime, minimum wage, meal and rest break penalties and expense reimbursements. She regularly conducts internal wage-and-hour audits and advises on misclassification issues in a variety of sectors including financial services, media and publishing, nonprofit entities and startup companies, among others. Recent wage-and-hour engagements include:
- Advising clients facing claims of independent contractor misclassification before the Department of Labor, both in the context of individual claims and Department of Labor audits.
- Defending off-the-clock claims in national FLSA collective actions in federal court and in arbitration.
In addition, Lisa has significant experience defending clients before AAA, JAMS and FINRA. Recent arbitration experience includes:
Successfully defending global investment banking firm against claims for allegedly unpaid bonus based upon purported oral promise for formulaic bonus compensation.
- Representing global financial institution in a nine-day hearing before a FINRA Panel that rejected claims for unpaid compensation.
Lisa 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. Lisa also has significant experience conducting internal investigations.
Prior to joining Orrick, Lisa served as a law clerk to the Hon. Peter Leisure in the United States District Court for the Southern District of New York.Array
Posts by: Lisa Lupion
Wage and hour laws have traditionally drawn, or at least attempted to draw, a bright line between employees, who are entitled to the protections of wage and hour and other employment laws and independent contractors, who are not covered by most employment-related statutes. In the growing gig economy, however, some have suggested that there should be a third category of worker – one that has some, but not all, legal protections of an employee but whose relationship is freelance, transient and potentially for multiple entities. In the first-of-its-kind legislation, the New York City Council has passed a bill that provides statutory wage protections for freelance workers. The law awaits signature from New York City Mayor Bill de Blasio. If signed, the law would become effective 180 days after it is signed and would apply to contracts signed after the effective date.
Just weeks before the United Stated Department of Labor (USDOL) regulations are set to increase the salary threshold for exempt employees throughout the country, the New York State Department of Labor is proposing an even higher threshold that will surpass the federal requirements for some New York employers as of December 31, 2017. On October 19, 2016, in addition to updating its regulations to match the minimum wage increases announced this past spring, the New York State Department of Labor proposed new changes to the salary basis minimums for exempt employees in New York.
The “cat’s paw” doctrine, a concept first coined by Seventh Circuit Judge Richard Posner in 1990 and adopted by the Supreme Court in 2011, applies when an employee is subjected to an adverse employment action by a decision maker who does not have any discriminatory animus but who bases his or her decision upon information from another who has such an improper motive. In Vasquez v. Empress Ambulance Service, Inc., the Second Circuit recently held that the “cat’s paw” theory may be used to support recovery for Title VII retaliation, in addition to discrimination, claims and then extended the doctrine to permit liability if the individual with the discriminatory or retaliatory motive is a low-level employee, not just a supervisor.
In 2015, the Department of Labor (“DOL”) proposed substantial changes to the minimum salary level requirements, sought input on whether bonuses and incentives should be included in meeting the salary level test and considered changing the duties test to establish overtime eligibility. Taken together, these proposed changes would have had a drastic effect on the obligation of employers to pay overtime. On May 18, 2016, DOL issued its Final Rules and employers have until December 1, 2016 to comply. Overall, the changes strike a middle ground as DOL declined to adopt the more restrictive California 50% duties test. However, doubling the salary level threshold and other changes present significant economic and compliance challenges for employers. Below is a summary of key takeaways and steps employers should consider to address these changes and ensure compliance.
After agreeing last week on a 2016-17 Executive Budget that includes several key labor and employment provisions, New York State Independent Democratic Caucus Leader Jeffrey Klein declared that “[t]his truly is the Year of the Worker.” The ground breaking bills include an increase of the New York State minimum wage over the next few years to $15 per hour and paid family leave for employees for up to 12 weeks when caring for an infant, family member with a serious health condition or to relieve family pressures when someone is called to active military service. The New York City Council was also busy on the employment front last week, passing several changes to the New York City Human Rights Law that impact New York City employers. These recent State and City legislative developments are summarized below.
Whether a Human Resources Director will be deemed the “employer” and held individually liable for alleged violations under the Family Medical Leave Act (“FMLA”) should be left to the jury, according to the Second Circuit’s recent FMLA decision. In Graziadio v. Culinary Institute of America, et al., 15-888-cv (2d Cir. Mar. 17, 2016), the Second Circuit found that there could be a viable claim for individual liability under the FMLA and it also announced the standard for what could be considered unlawful “interference” with FMLA rights.
While the Supreme Court in Tyson Foods, Inc. v. Bouaphakeo dashed employers’ hopes that the Court would broadly preclude statistical evidence and severely limit wage and hour class actions in a fashion similar to its restriction of discrimination class actions in Wal-mart v. Dukes, the Court was also clear that this type of evidence will not be appropriate or probative in all wage and hour claims. In ruling for the class action claimants, the Court affirmed a $2.9 million jury award for overtime claims related to donning and doffing at an Iowa pork processing plant. In so ruling, the Supreme Court refused to adopt the position advanced by Tyson Foods and several of its amici that class actions cannot be resolved by reliance upon representative evidence or statistical samples. It also refused to embrace Tyson Food’s reading of Wal-mart v. Dukes as standing for the proposition that representative sample is an impermissible means of establishing class-wide liability. But the Court also made clear whether statistical evidence could be used for liability depends on the claims asserted and the particular evidence. While the decision is not unsurprising after oral arguments, it seems likely that employers will see an uptick in plaintiffs aggressively relying on “representative” statistical evidence in wage and hour collective and class cases. There are, however, several “lessons learned” based upon the majority’s decision.
The Department of Labor (“DOL”) continues its regulatory dash to fulfill the President’s domestic agenda. The agency issued proposed rules, that seek to make President Obama’s Executive Order 13706, Establishing Paid Sick Leave for Federal Contractors signed on September 7, 2015, into a reality. The DOL solicits any comments on the proposed rules on or before March 28, 2016. Once effective, employees of certain federal contractors would be entitled to paid leave akin to the leave now in place in 4 states, the District of Columbia, and 27 other localities that are entitled to paid sick leave.
On January 5, 2016, New York City Mayor Bill de Blasio signed a bill that added “caregiver” to the list of protected classifications under the New York City Human Rights Law. The law, which takes effect on May 4, 2016, seeks to protect employees and applicants from discrimination because of their status or perceived status as a caregiver. Carmelyn Malais, the Commissioner of the New York City Commission on Human Rights vowed that “the Commission will vigorously enforce this much-needed protection” for “every parent and family member caring for a loved one.”