As we recently reported, the DOL promulgated three new final rules regarding wage and hour issues last month. One of these rules brings a much-needed dose of clarity for certain employers on an unusually thorny issue: what exactly is a “retail or service establishment” for purposes of the “retail exemption” under Section 7(i) of the FLSA? This section exempts certain commissioned employees in “retail or service establishments” from the FLSA’s overtime compensation requirement, but the list of qualified employers has been notoriously confusing and vague. Effective May 19, 2020, the DOL’s final rule nixed its almost half-century old catalog of qualifying establishments and adopted a new and uniform framework for determining eligibility for the exemption. READ MORE
Andrew R. Livingston
Andrew Livingston is a partner in the San Francisco office, where he serves as the Office Leader. Previously, Andrew was the Deputy Practice Group Leader of Orrick’s Global Employment Law Group.
Andrew represents clients in a wide variety of industries, but specifically focuses on financial services, retail, technology, and advertising.
He has an extensive class- and collective-action practice. He routinely defends employers in such cases in state and federal courts, particularly in cases alleging violations of the wage-and-hour laws. Andrew also defends employers in numerous other types of cases, such as those related to restrictive covenants and trade secrets, wrongful termination, discrimination, harassment and retaliation.
Andrew is a highly regarded trial lawyer. Chambers USA ranks Andrew as a leading employment law lawyer, with clients reporting that he is "very thoughtful, pragmatic and strategic in his thinking" and "distills very complex matters in a way that's easily understood." Legal 500 recognizes Andrew as a "excellent litigator" and notes that he is "exceptional in his ability to organize complex factual and legal arguments into a simple and persuasive presentation." The Daily Journal has listed him as a Top Labor & Employment Attorney a number of times, and he has been selected as a BTI Client Service Allstar.
Orrick’s Employment Law and Litigation group was named Labor & Employment Department of the Year in California for a fourth consecutive year 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.
Posts by: Andrew Livingston
Earlier this month, California Governor Gavin Newsom signed Executive Order N-51-20, mandating that certain “hiring entities” provide supplemental paid sick leave for food sector workers. The executive order (EO) acknowledges that workers who help grow and provide food, work in food facilities and deliver food are essential critical infrastructure workers who continue to work outside their homes during the COVID-19 pandemic. In an effort to prevent food sector workers from having to go to work when they are sick, which increases health and safety risks, the EO mandates supplemental paid sick leave for certain COVID-19-related reasons. Here’s what hiring entities need to know about the EO.
Although COVID-19 continues to disrupt the daily lives of American workers, employers are beginning to plan for a possible return to work. This includes retailers, which have been particularly impacted by the Coronavirus pandemic with a widespread shutdown of stores. Now, OSHA has released specific guidelines for keeping retail workers safe. READ MORE
On April 7, 2020, Mayor Eric Garcetti issued an emergency order providing supplemental paid sick leave to certain employees working within the City of Los Angeles for a variety of reasons related to COVID-19 (the “Order”). Notably, Mayor Garcetti issued the Order after declining to sign the COVID-19 Supplemental Paid Sick Leave Ordinance (the “Ordinance”) approved by the Los Angeles City Council (“City Council”) on March 27. Our previous post summarizing the City Council’s Ordinance is located here: https://blogs.orrick.com/employment/. READ MORE
On Thursday March 26, the Department of Labor issued additional guidance about the Families First Coronavirus Response Act (“FFCRA”). The new guidance addresses a variety of topics including how the FFCRA applies to remote working, intermittent leave, worksite closures, reduction of hours and furloughs.
This week, the DOL also issued a fact sheet for employees and a fact sheet for employers. The required poster can be found here as well as FAQs about notice requirements. The DOL plans to implement formal FFCRA regulations in April.
Stay tuned for updates and check out our FFCRA FAQs here.
On January 12, 2020, the Department of Labor announced a final rule to revise and update its regulations to assist in determining joint employer status under the Fair Labor Standards Act (FLSA). Notably, the final rule recognizes two potential scenarios where an employee may have one or more joint employers. READ MORE
With the new year comes the likelihood that the U.S. Supreme Court, the California Supreme Court, and the Ninth Circuit will issue a number of significant decisions spanning a range of topics in the employment arena. In addition to the new California laws that have recently come into effect, covered here, California employers should watch these three litigation areas as well: READ MORE
2018 saw some major developments in employment law, particularly in California. The California Supreme Court embraced the ABC test for independent contractors in Dynamex, and rejected the de minimis doctrine for Labor Code claims in Troester. While 2019 has already brought legislative changes through the #metoo laws effective January 1, attention should also be on cases before the California Supreme Court. These cases may present new challenges for all employers, but particularly for media companies and employers doing business across state lines. The Court’s decisions in these cases have the potential to increase employers’ exposure to liability. We highlight some such cases here. READ MORE
In recent years, the volume of equal pay lawsuits has continued to increase in Silicon Valley, despite technology companies reaffirming their commitment to equal pay policies and practices. Earlier this month, Hewlett Packard Enterprise Co. (“HP”) was hit with the latest equal pay lawsuit. The class action lawsuit, filed in Santa Clara Superior Court, alleges that HP discriminated against its female workers by paying them less than their male counterparts and funneling women into certain jobs based on stereotypes. READ MORE
Last week, California enacted new legislation updating the prohibition on employers inquiring into the salary history of their applicants and the requirement that employers respond to applicants’ requests for the pay scale for positions. This law, enacting Assembly Bill No. 2282, clarifies key provisions in Labor Code section 432.2 regarding employers’ obligations, which were left undefined in the bill that added Section 432.3 to the Labor Code last year. READ MORE