Wage and Hour

Life in the Fast Lane: New OSHA Pilot Program Offers Expedited Review of Whistleblower Complaints

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OSHA’s San Francisco region, which includes California, Nevada, and Arizona, launched a new pilot program on August 1, 2016 that would allow complainants, under certain circumstances, to ask OSHA to cease its investigation and issue findings for an ALJ to consider.  The program is an effort to process cases more quickly in the region.  To qualify for expedited treatment, the investigator must first interview the complainant, allow the respondent the opportunity to submit its position statement and meet with OSHA and present statements from witnesses if so desired, and allow the complainant an opportunity to respond to the respondent’s submission.

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California Enacts New PAGA Amendments as Part of Governor’s Budget Bill

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The Private Attorneys General Act of 2004 (“PAGA”) authorizes aggrieved employees to file lawsuits to recover civil penalties on behalf of themselves, other employees and the state of California for Labor Code violations. In January, Governor Brown submitted a budget proposal that sought greater oversight of PAGA claims and amendments to the PAGA statute. On June 15, 2016, the California Legislature approved Governor Brown’s budget proposal which included significant amendments to PAGA (Labor Sections 2698-2699.5). SB 836 went into effect on June 27, 2016 and provides:

  • The Labor and Workforce Development Agency (“LWDA”), the agency which coordinates workforce programs by overseeing seven major departments that serve California businesses and workers now has 60 days to review a notice under Labor Code § 2699.3(a). Prior to the amendments, the LWDA had 30 days to review. Additionally, the time for the LWDA to investigate a claim is extended to 180 days (it was 120 days);
  • A Plaintiff cannot file a civil action until 65 days after sending notice to the LWDA (previously 33 days);
  • The LWDA must be provided with a copy of any proposed settlement of a PAGA action at the time it is submitted to the court;
  • A copy of the court’s judgment and any other order that awards or denies PAGA penalties must be provided to LWDA;
  • All items that are required to be provided to the LWDA must be submitted online, including PAGA claim notices and employer cure notices or other responses;
  • A $75 filing fee is required for a new PAGA claim notice and also for any initial employer response to a new PAGA claim notice. The filing fee may be waived if the party on whose behalf the notice or response is filed is entitled to in forma pauperis status; and
  • When a plaintiff files a new PAGA lawsuit in court, a filed-stamped copy of the complaint must be provided to LWDA. This requirement only applies to cases in which the initial PAGA claim notice was filed on or after July 1, 2016.

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Digging Into the New Overtime Regulations

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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.

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We Get Out Our Crystal Balls on the Imminent DOL Overtime Rules

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The prognostication efforts are going into high gear as employers seek to forecast and prepare where the Department of Labor may land on its final overtime rules.  As with all rules in the post-comment phase, government officials have not given any indication on when the final rules will be published (and become effective) or what they will contain.  Our insight is the final rule will be published ahead of schedule before the July regulatory agenda date, perhaps as soon as later this month.  The Congressional Review Act deadlines (described here) strongly indicate that the DOL will seek to avoid the prospect of any effective congressional action on the final rules.  As to the final rule’s content, we believe that the Office of Management and Budget and DOL are taking into account the political winds and other considerations before making a final decision.  Once published, however, the DOL can set the effective dates as early as 60 days which would give employers a very difficult compliance burden.

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Pork Processing Plant Employees Can Keep the Bacon: Supreme Court Affirms Jury Award and Permits Proof of Wage and Hour Class Claims By Representative Evidence

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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.

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Game-Changing Overtime Regulations Advance to OMB Ahead of Schedule, Final Rule Could Arrive as Early as April 2016

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The U.S. Department of Labor (DOL) sent its much anticipated final overtime regulations to the Office of Management and Budget (OMB) for review on March 14, 2016.  Technically, this move came slightly ahead of schedule.  OMB now has 90 days to review, which would put its “due date” in mid-June – ahead of the July regulatory agenda publication date we previously reported.  However, as these overtime regulations are a top-line priority subject to intense political scrutiny, there is reason to believe OMB may not complete its review within the 90-day window. 

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Justice Scalia’s Employment Law Legacy

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On February 13, 2016, Justice Antonin Scalia, the anchor of the Court’s conservative wing for nearly three decades, passed away.  He leaves behind a distinguished legal career that involved experience in wide range of roles.  After graduating from Harvard Law School, Justice Scalia entered private practice and then became a law professor at the University of Virginia.  He served in the Nixon and Ford administrations, eventually becoming Assistant Attorney General.  Scalia then began his judicial ascension when President Ronald Reagan nominated him to the United States Court of Appeals for the District of Columbia Circuit.  Soon thereafter, Reagan nominated Scalia to the Supreme Court to replace Justice William Rehnquist, whom Reagan had named to the Chief Justice position.  Scalia was unanimously confirmed.

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What Can Brown Do For PAGA? Budget Proposal Seeks Greater Oversight of PAGA Claims

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California Governor Jerry Brown’s administration recently submitted a budget proposal to the California Legislature that would increase State oversight of Private Attorneys General Act (PAGA) claims and amend the PAGA statute accordingly.  The proposal has significant implications for the administration of PAGA claims going forward.

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DOL’s Aggressive Regulatory Agenda Continues

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The U.S. Department of Labor’s (“DOL”) role as a strong player in the Obama Administration’s domestic agenda shows no signs of letting up. DOL is poised to finalize big changes in the federal contracting and wage and hour spaces. Employers should be ready to meet the compliance challenges associated with these new obligations.

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Class Action Lawsuits: In Vogue? High Fashion Gets Hit with Wage and Hour Class Action Lawsuits over Unpaid Internship Programs

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Sportswear-inspired designs, bold prints, and gingham aren’t the only things trending for Spring 2015 in the fashion world.  Judging from a recent wave of lawsuits, wage and hour class actions are trending as well. Over the past few years, class action lawsuits over unpaid internships have been on the rise, with this most recent wave of filed lawsuits serving as a powerful reminder to employers that intern programs can’t simply be viewed as a way to recruit free labor.

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