Wage and Hour

Control of the Senate or Not, Biden Has a Pen: Executive Orders Employers Can Expect Under the New Administration

With the Georgia Senate race and control of the Senate hanging in the balance, a Biden Administration’s ability to enact new employment-related legislation is questionable.  However, with the stroke of a pen, a Biden Administration can make significant changes through Executive Order.  In this post, we attempt to identify several areas where rule by Executive Order may come.

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Catching Up with the Times: DOL Issues Final Rule Simplifying Retail Exemption Under the FLSA

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

Six Degrees of Separation: Temperature Testing as Employees Return to Work

As states begin to reopen and employees return to the workplace, employers are faced with trying to protect workers and prevent the spread of COVID-19 in the workplace. Many employers are looking to temperature testing as a potential safeguard. Like many emerging safety measures, though, there are several considerations to weigh before implementing temperature testing: READ MORE

Ninth Circuit Withdraws Vasquez, Punts to California Supreme Court on Dynamex Retroactivity

On July 22, 2019, the Ninth Circuit withdrew its recent decision in Vazquez v. Jan-Pro Franchising International, Inc., and ordered that it would certify to the California Supreme Court the question of whether the worker classification test articulated in Dynamex Operations West v. Superior Court applies retroactively. READ MORE

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

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

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

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

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

Money for Nothing? On-Call Checks For Free: California Court Says Employers Must Pay Employees For Certain On-Call Scheduling Requirements, Even If Employees Are Not Called Into Work

A California Court of Appeal recently issued an order in Ward v. Tilly’s, Inc. finding that certain on-call scheduling practices trigger “reporting time pay” requirements even when the employee does not actually come into the work site. READ MORE

2019 Federal Wage and Hour Updates: The DOL Tackles Potential OT Violations and Ministerial Exceptions Under the FLSA

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

Big Win for the Healthcare Industry on Meal Break Waivers as the California Supreme Court Resolves an Apparent Conflict in the Labor Code and IWC Wage Order

On December 10, the California Supreme Court issued an impactful decision for the healthcare industry. In Gerard v. Orange Coast Memorial Medical Center, the unanimous Court endorsed the Hospitals’ meal break policy, over which the parties had battled for more than a decade.

The policy permitted employees who worked shifts longer than 10 hours to voluntarily waive one of their two meal breaks, even if their shifts lasted more than 12 hours. The Plaintiffs alleged the meal period waivers they signed were illegal because under the California Labor Code, waivers were not permissible for shifts greater than 12 hours.

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