Employment Law

OFCCP’s New Directive on Predetermination Notices Gives Contractors a Second Chance

Effective February 27, 2018, the Office of Federal Contract Compliance Programs (OFCCP), which is charged with ensuring federal contractors and subcontractors provide equal employment opportunity, issued Directive 2018-01, announcing that predetermination notices (PDNs) will be sent to federal contractors and subcontractors for all audits and compliance reviews where a finding of unlawful employment discrimination is imminent.  READ MORE

PAID in Full? Be Careful in Following the DOL’s Lead

The U.S. Department of Labor announced a new nationwide pilot program aimed at allowing employers to self-report and self-remedy potential minimum wage and overtime violations.  According to the DOL’s Wage and Hour Division (WHD), the Payroll Audit Independent Determination (PAID) Pilot program will allow employers to resolve Fair Labor Standards Act violations without full investigations and litigation.  We summarize the features of the program. READ MORE

Federal Overtime Formula Falls Flat — California Supreme Court Adopts DLSE Interpretation for Flat Rate Bonuses

In a break from federal law, the California Supreme Court clarified in Alvarado v. Dart Container Corp. the proper formula for calculating flat-rate bonuses into overtime pay under California law.  The Court adopted the Plaintiff’s position and held that, for purposes of calculating the per-hour value of a flat rate bonus, the divisor should be the number of nonovertime hours the employee worked in the pay period rather than all hours worked during the pay period.  READ MORE

Exhaustion Matters – Don’t Try Going It Alone Under PAGA

A recent decision by the California Court of Appeal provides two important reminders for practitioners handling Private Attorneys General Act (“PAGA”) claims. First, exhausting administrative proceedings matters. Second, PAGA claims are representative claims – not individual actions.

Under PAGA, an “aggrieved employee” may file a representative action on behalf of himself or herself and other current and former employees to recover civil penalties for violations of the California Labor Code. READ MORE

Get it on the Calendar: Employees’ Sabbath Work Claims Survive, but Tenth Circuit Rejects Broad “Complete” or “Total” Theories of Religious Accommodation

The Tenth Circuit Court of Appeals recently reversed a decision by the U.S. District Court for the District of Utah granting summary judgment in favor of Kellogg USA in a case involving an alleged failure to accommodate employees’ religious beliefs.

The case, Tabura v. Kellogg USA, emerged after Richard Tabura and Guadalupe Diaz, both Seventh-day Adventists, were terminated for refusing to work on Saturdays, the Sabbath day in their religion.  The former employees filed suit in February 2014, claiming that Kellogg violated Title VII of the Civil Rights Act by failing to accommodate their religious beliefs. READ MORE

Take It Outside: Supreme Court Unanimously Holds That Internal Reporting Is Not Protected Under Dodd-Frank

In the Supreme Court’s first decision interpreting Dodd-Frank’s whistleblower retaliation provisions, the Court unanimously held that internal whistleblowing is not protected under Dodd-Frank.  The highly anticipated ruling resolves a circuit split between the Second and Ninth Circuits, which held that such reporting was protected, and the Fifth Circuit, which held that it was not.  The Court sided with the Fifth Circuit’s textual reading and held that no Chevron deference to the SEC’s interpretation of the statute was warranted because the statutory definition of “whistleblower” was clear. READ MORE

Take Out and Classification Take-Aways: Federal Court in California Finds Food Delivery Drivers Are Independent Contractors

In the first federal court in California to issue a rule on classification of gig-economy workers, the Northern District of California recently concluded that restaurant delivery drivers are properly classified as independent contractors instead of employees under California law.

In Lawson v. Grubhub, Inc., No. 15-cv-05128-JSC (N.D. Cal. Feb. 8, 2018), Plaintiff Raef Lawson worked as a restaurant delivery driver for Grubhub for four months in late 2015 and early 2016.  Grubhub is part of the growing gig-economy, connecting diners to local restaurants through its internet food ordering app.  Lawson brought his claims both in an individual capacity and as a representative action pursuant to the California Private Attorney General Act (PAGA).  The critical question before the court was whether Lawson was an employee or an independent contractor. READ MORE

New Lawsuit Alleges Rush to Judgment in #MeToo Climate

Newton’s Third Law of Physics states that “for every action, there is an equal and opposite reaction.” A recent Complaint filed in the Southern District of New York suggests that this principle may also hold true for the recent “Me Too” movement. READ MORE

Legislators Quick to Respond to #Metoo


Since Anita Hill’s testimony in the early 1990s, sexual harassment has become a familiar term. At the federal level, Title VII prohibits harassment, discrimination, and retaliation on the basis of sex and gender, among other things. On the state level, the New York State Human Rights Law (“NYSHRL”) expands on the categories of protected classes covered by Title VII but is interpreted by the courts in largely the same manner as Title VII. Under California’s Fair Employment and Housing Act (“FEHA”), harassment is defined to include verbal harassment (such as derogatory comments), physical harassment (including physical interference with movement), visual harassment (such as derogatory cartoon or drawings), and sexual favors. FEHA prohibits sexual harassment because of a person’s sex, gender, gender identity, gender expression, sexual orientation, transgender status, pregnancy, and childbirth, breastfeeding, and related medical conditions. Harassment based on the perception of any of these characteristics is also prohibited, and sexually harassing conduct need not be motivated by sexual desire to be considered unlawful. READ MORE

CEO’s Whistleblower Claims “Rest On Feet Of Clay”: Seventh Circuit Affirms Dismissal Of SOX and Dodd-Frank Case

Earlier this month, the Seventh Circuit affirmed dismissal of a CEO’s whistleblower retaliation claims in a decision that should provide corporate defendants ammunition to fight SOX and Dodd-Frank whistleblower cases going forward.

In Verfuerth v. Orion Energy Systems, Inc., No. 16-3502 (7th Cir. Jan. 11, 2017), the plaintiff, founder and former CEO of Orion, claimed that Orion’s Board of Directors terminated him for cause in retaliation for making whistleblower complaints about perceived fraud on SEC reports and other managerial decisions.  Orion asserted that it terminated Verfuerth for numerous legitimate reasons, including falling stock prices, Verfuerth’s intimidating leadership style, high rates of senior management turnover, and other business disagreements such as reimbursement for Verfuerth’s costly divorce. READ MORE