Necia Hobbes

Sr. Employment Career Associate

Wheeling, W.V. (GOIC)


Read full biography at www.orrick.com

Necia Hobbes is a member of the firm’s employment law group at Orrick’s Global Operations & Innovation Center in Wheeling, West Virginia. She has a broad range of experience litigating in federal, state and administrative courts.

Necia’s employment law practice focuses on federal court discrimination litigation, as well as complex litigation and class actions, including pay equity claims, wage and hour disputes, and OFCCP administrative claims. She handles cases from inception through to appellate briefing and strategy, and assists companies with a variety of compliance-related challenges including internal investigations, pay equity analyses, and government investigations and audits.

Prior to joining Orrick, Necia handled all aspects of general litigation cases at another global law firm including acting as lead counsel in approximately 50 cases in federal, state and administrative courts.

Additionally, Ms. Hobbes served as a judicial law clerk for the Honorable D. Michael Fisher of the United States Court of Appeals for the Third Circuit and obtained a graduate degree from Carnegie Mellon University’s H. John Heinz III School of Public Policy & Management. She previously consulted with the Office of High School Reform for the Pittsburgh Public Schools, served as a Coro Fellow in Public Affairs with the Coro Center for Civil Leadership in Pittsburgh, PA, and worked as a project manager and writer at a market research firm.

Ms. Hobbes is dedicated to pro bono and community service, and has volunteered advising non-profit organizations through employment law challenges related to COVID-19, developing resources on international anti-trafficking laws, and litigating immigration cases assisting refugee children fleeing violence in Central America, civil cases helping prisoners pursue their constitutional rights, and state court petitions for transgender legal name changes.  She has volunteered in the past with women’s rights and immigration advocacy organizations, and teaching English in Kathmandu, Nepal.

Posts by: Necia Hobbes

Listen Up: The DOL Begins Public Listening Sessions on Its Overtime Rule

This week, the United States Department Labor (“DOL”) is conducting its first listening session on the white collar exemptions under the Fair Labor Standards Act (“FLSA”)—more commonly known as the “overtime rule.” Several additional listening sessions will take place later this month. The sessions are expected to focus on public opinion regarding changing the current minimum salary level for exempt employees from its current level of $455 per week ($23,660 annually). There is no fee to attend a session, but registration is required here.

These sessions are just the latest in the ongoing saga over revisions to the overtime rule that began two years ago in September 2016, when twenty-two states and dozens of business groups challenged the Obama administration’s overtime regulation revisions that were finalized earlier that year. The new rule was set to implement several changes, most notably raising the minimum salary level for exempt employees to $913 per week ($47,476 annually), effective December 1, 2016. Before the new rule could take effect, the Texas federal judge hearing the case issued a nationwide injunction preventing the DOL from implementing and enforcing it, based partially on a holding that the new rule exceeded Congress’s delegation of authority to the DOL. The Obama administration appealed, and after requesting additional time to respond, the Trump administration decided to uphold the position that the DOL had the authority to revise the applicable salary level. However, in July 2017, the DOL also issued a Request for Information (“RFI”) on the overtime rule, asking for the public to submit comments by the end of September. The following month, the district court judge granted the states’ and business groups’ motions for summary judgment, invalidating the regulation. The DOL decided to dismiss its appeal and instead to pursue its own regulatory rulemaking process.

The RFI asked broad ranging questions related not only to the salary level, but to other exemption-related requirements, such as the duties test. It elicited over 140,000 public comments, including from major representative and advocacy organizations such as the United States Chamber of Commerce and Independent Sector (representing the nonprofit sector). The Chamber opposed only an “excessive increase,” suggesting that based on data from the Bureau of Labor Statistics, a more modest increase to a minimum salary of $612 per week ($31,824 annualized) was more appropriate. The Chamber also expressed its opposition to any change to the duties test. The Independent Sector highlighted the heavy financial burden the proposed increase would bring to the already-financially-strained nonprofit/charitable organizations nationwide. It suggested that any change be phased in to permit organizations time to adapt, and also expressed concern that any potential change to the duties test would “significantly impact the operations of charitable organizations,” asking that any change be considered through a formal rulemaking process allowing the public time to comment and review.

Last week’s announcement on the listening sessions offered our first glimpse into the DOL’s rulemaking process since the RFI period closed last year. Notably, the agenda questions focus exclusively on the salary test—a much narrower set of questions than those posed in the RFI. Listening Session participants are asked to focus on the four following issues: (1) “the appropriate salary level (or range of salary levels) above which the overtime exemptions for bona fide executive, administrative, or professional employees may apply”; (2) “[w]hat benefits and costs to employees and employers might accompany an increased salary level”; (3) “the best methodology to determine an updated salary level”; and (4) whether the DOL should “more regularly update the standard salary level and the total-annual-compensation level for highly compensated employees.” Noticeably absent is any indication that DOL is considering automatic inflationary updating to the salary level test. This reverts back to the position in the Bush DOL that the Department did not have statutory authority to implement automatic updating. In any event, this suggests that the DOL is shying away from changes to the duties test or other more expansive revisions as the formal rulemaking process rarely expands beyond the scope of the informal information gathering. The answer will have to wait until the Notice of Proposed Rulemaking is released, which is expected in January, at the earliest.

Epic News for Employers: Class Action Waivers in Arbitration Agreements are Enforceable

Employers across the country started the work week with some positive and long-awaited news.  On Monday, May 21, 2018, the U.S. Supreme Court ruled in a landmark case that employment arbitration agreements with class action waivers do not violate federal labor law.  The Court’s 5-4 decision in Epic Systems Corp. v. Lewis, No. 160285 (U.S. May 21, 2018), consolidated with Ernst & Young LLP et al v. Morris et al., No. 16-300, and National Labor Relations Board v. Murphy Oil USA, Inc., et al. , No. 16-307, was authored by Justice Gorsuch, and settles the longstanding dispute over whether arbitration agreements containing class waivers are enforceable under the Federal Arbitration Act (FAA) despite the provisions of Section 7 of the National Labor Relations Act (NLRA).   READ MORE

Here We Go Again: Browning-Ferris Revisited

As a result of recent activity at the D.C. Circuit and the National Labor Relations Board (the “NLRB”), the joint employer standard is in a state of flux. On April 6, 2018, the D.C. Circuit decided that it will review the NLRB’s ruling in Browning-Ferris Industries of California, Inc. (“Browning-Ferris”), a controversial decision concluding that a company and its contractor could be found to be joint employers even if the company did not exert overt control over workers’ terms and conditions of employment. In December 2017, the D.C. Circuit remanded the case in light of the NLRB’s decision in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co. (“Hy-Brand”), which overruled the broad Browning-Ferris standard for joint employment and returned to a more employer-friendly standard. But, the NLRB recently vacated its Hy-Brand decision based on a conflict regarding one of its Members. Now, the D.C. Circuit likely will weigh in on the appropriate scope of the joint employer standard. READ MORE

“Call-In Pay” for “On-Call” Work: New York’s Proposed Employee Scheduling Rules

The New York State Department of Labor has introduced its proposed rules, to address the practice of “on-call” scheduling (also called “just-in-time” or “call-in” scheduling), which the Department describes as “common practices that allow employers to schedule or cancel workers’ shifts just hours before or even after it starts.” Governor Andrew M. Cuomo states that the regulations are intended to “increase fairness for workers and allow employers to retain flexibility.” The full rulemaking package will be release on November 22, 2017, which will kick off the 45-day window for public comment. READ MORE