Archives: Wage and Hour

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Paid sick leave to take effect soon for employers in three cities in the Lone Star State

Employers in three major cities in the Lone Star State should begin preparing for compliance with paid sick leave ordinances. Joining a number of other states and cities to have enacted paid sick leave laws, the cities of San Antonio, Austin, and Dallas passed ordinances requiring private employers to provide employees with paid sick leave. … Continue Reading

Promising news for companies in the transportation industry

Companies in the transportation industry with operations in California have some positive news to celebrate. On May 3, 2019, in Anthony Ayala v. U.S. Xpress Enterprises, Inc., et al., the Central District of California granted partial summary judgment and dismissed a truck driver’s meal and rest period claims, finding that they were preempted by the … Continue Reading

EEOC updates its guidance on employers’ duty to report EEO-1 pay data by September 30, 2019

The EEO-1 Report is a compliance survey mandated by federal law. Generally, employers with 100 or more employees and federal government prime contractors and first-tier subcontractors with 50 or more employees and federal contracts worth at least $50,000 are required to submit EEO-1 Reports to the U.S. Equal Employment Opportunity Commission (EEOC) annually. A brief … Continue Reading

Dynamex in retrograde – misclassification test and its retroactive reach may open the flood gates for misclassification cases in California

In April 2018, the California Supreme Court turned worker classification on its head when it decided Dynamex Operations West Inc v. Superior Court (Dynamex). In Dynamex, the court adopted a three-factor “ABC” test for analyzing misclassification claims under the California Wage Orders. Under the ABC test, for an employer to show that workers were properly … Continue Reading

9th Circuit to consider whether the FAAAA preempts California’s ABC test for independent contractor truck drivers

California companies have been required to reconsider their use of independent contractors since the state’s Supreme Court outlined the new ABC test in Dynamex Operations West, Inc. v. Superior Court. Unlike the prior Borello test, which involved the balancing of numerous factors, the ABC test requires that a company establish all of the following: (A) … Continue Reading

Attention employers: Westchester’s earned sick leave law is now in effect

Effective April 10, 2019, certain employers must comply with Westchester County’s Earned Sick Leave Law (WESLL). Westchester County’s Human Rights Commission recently released additional guidance about the new law, which can be found here. Eligibility, accrual and carryover Generally, under the law, full- and part-time Westchester County employees who work 80 hours or more during … Continue Reading

New York provides employees with additional hour of paid time off to vote

Though the business community might not have had a vote in it, New York legislators have amended the State’s election laws to provide employees with an additional hour of paid time off to vote on election days. Until recently, New York law required employers to provide workers with up to two hours of paid time … Continue Reading

New York’s highest court holds that home health aides are not entitled to 24-hour pay

Recently, New York’s highest state court, the Court of Appeals, held that the New York Labor Law (NYLL) does not automatically entitle New York home health care providers to wages for each hour worked during a 24-hour shift. The ruling is the result of an appeal of two state court class actions in which home … Continue Reading

Governor Pritzker signs law to increase Illinois’ minimum wage to $15 per hour by 2025

On February 19, 2019, Illinois Governor J.B. Pritzker signed into law a proposed bill to increase the state’s minimum wage to $15 per hour by 2025. The bill, known as “Lifting Up Illinois Working Families Act,” sets incremental increases to the state’s hourly minimum wage for employees 18 years or older as follows: (i) $9.25 … Continue Reading

California on call shifts may qualify for paid reporting time pay

In a recent decision involving retail store employees, the Second Appellate District Court held that employees subject to on-call scheduling must be paid reporting time pay, even when the employee only has to make a short call to determine if they are needed, but does not physically report to work. The case, Skylar Ward v. … Continue Reading

NLRB returns to more employer-friendly independent contractor test

In a recent decision involving SuperShuttle drivers, the National Labor Relations Board (NLRB or Board) overruled a 2014 decision making it less likely a worker would be deemed an independent contractor, returning to the more employer-friendly common law test to determine independent contractor status. In 2014, the Board purported to clarify the standard for evaluating … Continue Reading

San Francisco increases costs and requirements for employers in 2019

San Francisco’s Office of Labor Standards Enforcement (OLSE) continues to raise the cost of doing business at the foot of the Golden Gate by requiring employers to provide some of the most generous benefits to employees in the United States. The OLSE has amended certain of its rules regarding employer obligations, and will begin enforcing … Continue Reading

NYC may soon require employers to provide paid vacation

New York City is at it again – continuing its quest to be the most employee-friendly jurisdiction in the country. On January 8, 2019, NYC Mayor Bill de Blasio announced proposed legislation that would require private employers to provide employees with mandated paid time off/vacation. If passed by the City Council, the law would be … Continue Reading

Illinois mandatory expense reimbursement law now in effect

The new year brought a new concern for Illinois employers: a mandatory expense reimbursement law. As of January 1, 2019, Illinois employers must reimburse all “necessary expenditures” their employees incur in the scope of employment directly related to services performed by the employer. The amendment to the Illinois Wage Payment Collection Act (IWPCA) defines “necessary … Continue Reading

U.S. Department of Labor issues new opinion letters on overtime compliance with varying average hourly rates and on volunteerism

The Acting Administrator for the U.S. Department of Labor’s Wage and Hour Division (“WHD”) issued two new opinion letters on Friday, December 21, 2018. The first opines on whether a home health aide service’s compensation plan, which pays an average hourly rate that may vary from workweek to workweek, complies with the Fair Labor Standards … Continue Reading

California Supreme Court clarifies rules regarding health care employees’ waiver of second meal breaks

In an important decision for California health care employers, the California Supreme Court recently confirmed that certain health care employees are allowed to waive their second meal breaks even if they work more than 12 hours in a shift. History of the Gerard litigation In 2015, the California Court of Appeal shocked health care employers … Continue Reading

Here’s a tip for you: DOL offers new tip credit guidance rescinding 80/20 rule

On November 8, 2018, the U.S. Department of Labor (DOL) re-issued an opinion letter rescinding the “80/20 Rule,” which prohibited employers from taking a tip credit if a tipped employee spent more than 20% of his or her working time on non-tipped work. The DOL’s new guidance provides restaurant and hospitality employers with clarity and … Continue Reading

Uber’s arbitration agreements break down drivers’ misclassification suits

Employers considering requiring their employees sign arbitration agreements with class waivers just got a real-world example of the effectiveness of such agreements. On September 25, 2018, the U.S. Court of Appeals for the Ninth Circuit upheld the enforceability of arbitration agreements signed by thousands of Uber drivers in California. In the underlying lawsuits, the Uber … Continue Reading

Reminder for NY employers: NYC’s Temporary Schedule Change Law is in effect

On July 18, 2018, New York City’s temporary scheduling provisions of the New York City Fair Workweek Law went into effect. As a reminder, this law requires covered employers to grant employees a maximum of two temporary work schedule changes per calendar year for qualifying personal events. Also, the law prohibits employers from retaliating against … Continue Reading

California Supreme Court finds mere minutes matter…sometimes

Today, the California Supreme Court issued its much-anticipated opinion in Troester v. Starbucks Corp., No. S234969 (Cal. July 26, 2018), regarding whether the long-standing de minimis doctrine adopted under the federal Fair Labor Standards Act (FLSA) applies to claims for unpaid wages for minute increments of time under the California Labor Code. The majority opinion … Continue Reading

California Supreme Court Holds Worker Classifications Easy As A-B-C

The California Supreme Court handed down its highly anticipated decision in Dynamex Operations West, Inc. v. The Superior Court of Los Angeles County, No. S222732 (Cal. April 30, 2018), adopting a new legal standard to be used in determining whether workers should be classified as employees or as independent contractors. Specifically, in the unanimous Dynamex … Continue Reading

Supreme Court: Auto Service Advisors Exempt from FLSA Overtime Requirements

Ruling has encouraging implications for all employers Earlier today, the U.S. Supreme Court ruled that auto service advisors—employees at car dealerships who advise customers about repair work—are exempt from the Fair Labor Standards Act’s (FLSA) overtime requirements. The ruling reverses unexpected decisions by the Department of Labor and the Ninth Circuit that upended what had … Continue Reading

Controlled Substances Act Does Not Shield Marijuana Businesses from FLSA or Other Claims

An employee of a marijuana dispensary in Colorado filed a claim in federal court alleging that he was not paid overtime in violation of the federal Fair Labor Standards Act (FLSA). The dispensary attempted to dismiss the case by arguing that its business is illegal under federal law and, therefore, typical legal protections are unavailable … Continue Reading

Third Circuit Affirms Bright-Line FLSA Rule on Short Breaks, and Rejects Employer’s ‘Good-Faith’ Absent Disclosure of Legal Advice

On October 13, 2017, the Court of Appeals for the Third Circuit held that short breaks during the work day of 20 minutes or fewer are compensable as a “bright-line rule” under the Fair Labor Standards Act (“FLSA”).  The case, DOL v. American Future Systems, et al., arose out of the employer’s policy of withholding … Continue Reading
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