On December 21, 2018, the Department of Labor issued two opinion letters regarding the Fair Labor Standards Act (“FLSA”). The first opinion letter explains that an employer failed to comply with the FLSA’s overtime requirements when it designated a standard regular rate of pay for overtime purposes and the actual regular rate of pay exceeded that amount. The second opinion letter found that certain members of a religious organization were not employees under the FLSA, but, even if considered employees, qualified for the ministerial exception. This blog post explores both letters. READ MORE
Some positive news for those employers that retain independent contractors. On October 22, 2018, the California Court of Appeal for the Fourth Appellate District, held that the Dynamex “ABC” test (which we previously discussed here) to determine whether an independent contractor is an employee, only applies to wage order claims. But the case is a mixed bag and is a reminder that post-Dynamex, hiring parties bear a heavier burden to overcome the presumption that all workers are employees.
The case is Jesus Cuitlahuac Garcia v. Border Transportation Group, LLC, et al., involving plaintiff Jesus Garcia (“Garcia”), a taxi driver, who brought a wage and hour lawsuit against Border Transportation Group (“BTG”), with whom he drove taxi for several years. The trial court granted summary judgment for BTG, applying the decades-old multifactor S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341 (1989) test and finding Garcia was an independent contractor, not an employee entitled to wage order protection. The trial court’s reasoning included that Garcia controlled the means and manner of his work and “could and did market his business in his own name.”
Garcia appealed, during which time the California Supreme Court decided Dynamex, adopting the “ABC” test to determine whether a worker is an employee. Under this test, a hired individual is presumed an employee and the burden lays entirely on the hiring party to rebut that presumption by showing:
- that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;
- that the worker performs work that is outside the usual course of the hiring entity’s business;
- that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.
Turning first to Garcia’s wage order claims, the court focused on the “C” prong and found that BTG failed to carry its burden to show Garcia actually “provided services for other entities ‘independently’ of his relationship with BTG.” The court rejected BTGs reliance on Sebago v. Bos. Cab Dispatch, Inc., which focused the inquiry on whether the worker is permitted to establish an independent business operation. The court noted that Dynamex requires an “existing, not potential showing of independent business operation.” The court reversed summary judgment on the wage order claims.
But in positive news for hiring parties, turning next to Garcia’s non-wage-order claims, the court held the ABC test did not apply, and upheld summary adjudication as to those claims. The court explained that the Supreme Court did not reject the more flexible, multifactor Borello test in all instances, and that Borello applies when a cause of action is predicated solely on the Labor Code, while the ABC test is properly limited to wage-order claims. The court reasoned that the Supreme Court “recognized that different standards could apply to different statutory claims…” and emphasized that “primacy of statutory purpose” should resolve “the employee or independent contractor question.” The court found “no reason to apply the ABC test categorically to every working relationship, particularly when Borello…remains the standard for worker’s compensation.” And because the parties did not identify a “a basis to apply Dynamex to [the] non-wage-order claims,” the court concluded that Borello “furnished the proper standard as to those claims” without analyzing their primary statutory purposes.
Orrick will continue to track interpretations of the Dynamex case as they are published. For the latest employment law updates, subscribe to the Orrick Employment Law and Litigation Blog.
 Garcia’s non-wage-order claims included wrongful termination in violation of public policy, failure to pay overtime, and waiting time penalties.
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.
On Monday, the U.S. Supreme Court ruled that service advisers at car dealerships are exempt from the Fair Labor Standards Act (FLSA). In Encino Motorcars v. Navarro, the majority, Chief Justice John Roberts and Justices Clarence Thomas, Anthony Kennedy, Samuel Alito, and Neil Gorsuch voted to overturn the Ninth Circuit’s ruling on this exemption a second time, deciding that service advisors are “salesm[e]n . . . primarily engaged in . . . servicing automobiles,” and thus are exempt from overtime pay. READ MORE
On August 31, 2017, Judge Amos Mazzant of the United States District Court for the Eastern District of Texas, issued an order invalidating the Obama-era overtime rules. Finding that the Department of Labor rule exceeded its statutory authority under the Fair Labor Standards Act, the district court appeared to end the saga that had employers furiously determining whether they were going to adjust the pay of a wide swath of their workforces last Fall. However, the decision does not close the books on whether changes to the FLSA white collar exemptions are on the horizon. READ MORE
The California Court of Appeal for the Fourth District held that misclassification alone does not establish liability for overtime violations, and, thus, the fact that members of a putative class were classified as exempt was not sufficient to demonstrate the required commonality and typicality for a misclassification class action to proceed. The court in Kizer v. Tristar Risk Management held that in addition to alleging misclassification, the plaintiffs needed to prove that the misclassification caused harm. The standard announced by the Kizer Court augments the burden on plaintiffs in misclassification wage and hour class actions to establish commonality and typicality. On July 26, the decision was certified for publication. READ MORE
On January 20, 2017, shortly after Donald Trump became the 45th President of the United States, his Chief of Staff, Reince Priebus, issued an Executive Memorandum mandating a 60-day freeze on published federal regulations that have yet to take effect to allow Trump’s appointees time to review the regulations. Although such action is fairly standard during a change of administration, the impact could be significant if certain regulations set to take effect in 2017 are delayed or ultimately replaced. Regulations potentially affected by the 60-day freeze include the Department of Labor’s (“DOL”) overtime and fiduciary rules, and the Equal Employment Opportunity Commission’s (“EEOC”) EEO-1 pay reporting requirements. READ MORE
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.
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.
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.