It’s Heating Up: Several California Cities Prepare For Mid-Summer Minimum Wage Increases

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We are halfway through 2019, and while many employees prepare for summer vacation, California employers in various cities should brace themselves for an additional round of minimum wage increases on July 1, 2019.

Another raise, already?

As you may recall, on January 1, 2019, California raised the statewide minimum wage rate to $12.00 per hour for employers with 26 or more employees, and $11.00 per hour for employers with 25 or fewer employees. And the California minimum wage is set to increase to $15.00 per hour for all employers by January 2023. READ MORE →

Use It or Lose It: SCOTUS holds that EEOC Charge-Filing Requirement Is Forfeited If Not Timely Asserted

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On June 3, 2019, the United States Supreme Court issued its decision in Fort Bend County, Texas v. Davis, resolving a circuit split regarding whether Title VII’s charge-filing requirement with the Equal Employment Opportunity Commission (“EEOC”), or equivalent state agency, is jurisdictional. The Supreme Court ruled unanimously that Title VII’s charge-filing instruction is not jurisdictional; rather, it is a procedural prescription which is mandatory if timely raised, but subject to forfeiture if tardily asserted. READ MORE →

AB 5 and AB 71: CA Legislature Dukes It Out Over Dynamex and Borello

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The battle between Dynamex and Borello continues. Two competing bills – Assembly Bill 5 (“AB 5”) and Assembly Bill 71 (“AB 71”) – each seek to codify the respective worker classification tests. On May 29, 2019, the California State Assembly overwhelmingly passed AB 5, a bill seeking to codify Dynamex Operations West, Inc. v. Superior Court of Los Angeles, which adopted the three-factor “ABC” test to determine a worker’s classification for wage order claims. Now the bill is headed to the state Senate. Meanwhile, AB 71, a bill seeking to codify S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations, has thus far not enjoyed the same success. READ MORE →

A Gig Can be a Gig: US DOL Opinion Letter Breathes New Life into the Gig Economy Independent Contractor Model

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On April 29, 2019, the U.S. Department of Labor (“DOL”) issued an opinion letter finding that “on-demand” service providers working for a virtual marketplace company are independent contractors under the Fair Labor Standards Act.

The opinion letter comes almost two years after the DOL withdrew informal guidance on independent contractors issued under the Obama administration, in which the DOL concluded that “most workers are employees under the FLSA.” The new opinion letter signals an approach more friendly to “gig economy” virtual marketplace companies (or “VMCs”), online and/or smartphone-based referral services that connect consumers with service providers providing a wide variety of services, such as transportation, delivery, shopping, moving, cleaning, plumbing, painting, and household services. READ MORE →

European Court of Justice: Employers Obligated to Systematically Record Working Time

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According to a recent decisions of the European Court of Justice (ECJ) (May 14, 2019 – C‑55/18), the Member States of the EU must oblige employers to systematically record the working time of their employees. Only in this way can it be ensured and enforced that the working time rules are observed and that the intended health protection of the employees is guaranteed. READ MORE →

Inside-Out: CFTC Enhances Whistleblower Award For Internal Reporting

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On May 6th, the Commodity Futures Trading Commission (“CFTC”) announced that it made a whistleblower award of approximately $1.5 million to an individual whistleblower. The individual provided information that assisted in the successful prosecution of a CFTC action and a related action brought by another federal regulator.  In particular, the CFTC recognized that the whistleblower initially sought to report his or her concerns internally prior to reporting to the CFTC, and it enhanced the individual’s award as an incentive.

In making the announcement, the Director of CFTC’s Whistleblower Office Christopher Ehrman explained, “While there is no requirement that a whistleblower report internally before approaching the Commission, today’s award demonstrates that the Commission may pay enhanced awards to those that do – that is one of the positive factors set out in our rules for the Commission to consider in making its award determination.”  Furthermore, the CFTC recognized that the information the claimant provided “was directly incorporated into strategy involving witness interviews, and his/her early assistance saved Commission resources through his/her explanation of a complex scheme.”

Since the beginning of the CFTC’s whistleblower program in 2014, the agency has awarded more than $85 million to whistleblowers.

SCOTUS to Finally Decide if Sexual Orientation and Gender Identity Are Protected by Title VII

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On April 22, 2019, the U.S. Supreme Court granted certiorari in a trio of employment discrimination cases for which the Court’s forthcoming rulings—expected to be published by June 2020—could ultimately settle whether Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sexual orientation and gender identity. The three cases that the high court agreed to hear are Bostock v. Clayton Cnty. Bd. of Comm’rs, No. 17-1618 (filed May 25, 2018), Altitude Express, Inc. v. Zarda, No. 17-1623 (filed May 29, 2018), and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, et al., No. 18-107 (filed July 20, 2018). The first two cases involve sexual orientation specifically, while the third case pertains to gender identity. READ MORE →

Teachable Moment on Equal Pay Act and Title VII as Fourth Circuit Rejects Claim that Professors Perform “Equal” or “Similar” Work

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The Fourth Circuit recently issued a decision discussing whether a university professor established pay-related claims under the Equal Pay Act and Title VII.  This case has important implications for professional occupations where complainants seek to compare themselves to their colleagues for purposes of alleging pay discrimination.

Zoe Spencer, a sociology professor at Virginia State University (“VSU”), sued her employer for allegedly paying her less than two male professors because she is a woman.  The district court granted summary judgment, and plaintiff appealed to the Fourth Circuit.  The Fourth Circuit affirmed the district court’s decision because (1) plaintiff failed to present evidence that creates a genuine issue of material fact that the two male professors are appropriate comparators; and (2) in any event, unrebutted evidence shows that the VSU based the two male professors’ higher pay on their prior service as VSU administrators, not their sex.

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District Court Orders Employers to Submit Component 2 Data by September 30, 2019

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The EEOC has been ordered to collect employers’ EEO-1 Component 2 pay data by September 30, 2019.  The D.C. District Court issued the order after finding back in March 2019 that Office of Management and Budget (OMB’s) decision to stay the collection of Component 2 pay data lacked the reasoned explanation required by the Administrative Procedure Act.  See our prior blog posts here, here, and here about National Women’s Law Center v. Office of Management and Budget, No. 17-cv-2458 (TSC) (D.D.C.).  Since then the court has been critical of the EEOC’s compliance with its order, and held a status conference and a hearing in March and April. READ MORE →

Tip-ping the Scales: New Challenge to the DOL’s Revised Tip Credit Rule

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As was reported late last year, the Department of Labor (“DOL”) in 2018 published an Opinion Letter (FLSA2018-27), effectively rescinding the agency’s 80/20 tip credit rule. In general, the tip credit rule permits employers in tip-producing industries, such as the restaurant industry, to compensate employees at a minimum rate of $2.13 per hour, and to take a credit against the tips an employee receives. An employer is additionally responsible for the remainder of an employee’s wages, if any, between what the employee earned in wages and tips combined, and the federal minimum wage. READ MORE →