Category Archives: Wage and Hour

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Expanding Independent Contractors in California: New Law Awaits Governor’s Signature

Timothy KimJonathan P. BarkerJustine PhillipsBy Timothy Kim, Jonathan P. Barker and Justine Phillips on Posted in Class Actions, Employment Work, Independent Contractors, Labor and Employment, Wage and Hour
As we have previously reported, California law utilizes the “ABC” test to determine if workers are employees or independent contractors for purposes of the Labor Code, the Unemployment Insurance Code, and the wage orders of the Industrial Welfare Commission.… Continue Reading

California Court of Appeal Addresses Unlimited Vacation Policies for the First Time in McPherson v. EF Intercultural Foundation, Inc.

Babak YousefzadehLucky MeinzBy Babak Yousefzadeh and Lucky Meinz on Posted in Vacation or PTO, Wage and Hour
On April 1, 2020, the California Court of Appeal issued the first published decision addressing unlimited vacation policies under California law.  “Unlimited” vacation policies in which employees have no minimum and no maximum vacation and do not accrue any vacation time have become increasingly popular in recent years.  However, without guidance from the courts, employers … Continue Reading

New York Targets Members of Out-of-State LLCs in New Wage Theft Bill

James HaysSean KirbyBy James Hays, Sean Kirby and Myles Moran* on Posted in New York Employment Legislation, Wage and Hour
Effective February 10, 2020, the top ten members of an out-of-state limited liability company (“LLC”) can be held personally liable for violations of New York’s wage and hour laws. The bill, signed on December 12 by Governor Andrew Cuomo, amends New York’s LLC Law which previously only extended individual liability for unpaid wages to owners … Continue Reading

Department of Labor Issues Final Rule on Calculating the Regular Rate of Pay Under the Fair Labor Standards Act

James HaysSean KirbyJamie Moelis*By James Hays, Sean Kirby and Jamie Moelis* on Posted in Fair Labor Standards Act (FLSA), Wage and Hour
On December 12, 2019, for the first time in 60 years, the U.S. Department of Labor (DOL) announced a final rule clarifying the types of benefits that must be included in determining an employee’s “regular rate of pay” when calculating overtime wages. This new rule becomes effective January 15, 2020.… Continue Reading

Pay Day, Every Day? Instant Pay Apps and Their Wage and Hour Implications

Tyler BernsteinBy Tyler Bernstein on Posted in Employee Benefits, Payroll, Wage and Hour
As peer-to-peer payment applications proliferate and on-demand technologies reach new facets of people’s lives, it is only natural that these programs now offer services geared particularly for employees. On-demand, daily pay apps, also known as “instant pay” or “earned wage access” are the outgrowth of two fundamental truths: (1) millions of Americans live paycheck to … Continue Reading

Back to the Joint Employer: Having Changed the Classification Test for Independent Contractors, Will the California Legislature Target the Joint Employer Test Next?

Y. Douglas YangBy Y. Douglas Yang on Posted in California Employment Legislation, California Legislative Update, Employment Agreements, Employment Lawyers, Employment Work, FEHA, Independent Contractors, Joint Employment, Labor and Employment, Legal Info, Minimum Wage, Wage and Hour
As reported here and here, California recently enacted new legislation – Assembly Bill 5 – that expanded the scope of an “employee” under state law.  Beginning January 1, 2020, the answer to whether a person providing services in California is an independent contractor (as opposed to an employee) under the California Labor Code, the Industrial … Continue Reading

Second Circuit Holds That FLSA Settlements Pursuant To An Offer of Judgment Do Not Need Court Approval

Eric RaphanJamie Moelis*By Eric Raphan and Jamie Moelis* on Posted in Fair Labor Standards Act (FLSA), Wage and Hour
On December 6, 2019, the Second Circuit issued a decision that will have a strong impact on the settlement of wage and hour actions under the Fair Labor Standards Act (FLSA). In Yu v. Hasaki Restaurant, Inc., the U.S. Court of Appeals for the Second Circuit reversed a district court ruling and held that FLSA … Continue Reading

2020 Vision: California’s New Employment Laws

Melissa SmithBy Melissa Smith on Posted in Arbitration Agreements, California Employment Legislation, California Legislative Update, FEHA, Minimum Wage, Privacy, Sexual Harassment, Wage and Hour
To close out the 2019 legislative season, Governor Gavin Newsom signed dozens of bills into law, which will have lasting impacts for California employers. In addition to the summaries and clarifications from prior blog posts, below is an overview of key new employment laws.… Continue Reading

It’s Here: The DOL’s Final Overtime Rule has Been Released

Jenna MennonaBy Jenna Mennona on Posted in Department of Labor, Fair Labor Standards Act (FLSA), Wage and Hour
After years of uncertainty, on September 24, 2019, the Department of Labor released a Final Rule making changes to the Fair Labor Standards Act (“FLSA”) overtime regulations. BACKGROUND Since 2004, there had been no significant changes in the overtime salary thresholds under the FLSA. In 2016, the Obama administration attempted to make significant increases to … Continue Reading

It’s Official: Newsom Expands The Definition of “Employee” Under California Law

Timothy KimBy Timothy Kim on Posted in Arbitration Agreements, California Legislative Update, Class Actions, Discrimination, FEHA, Independent Contractors, Wage and Hour
On September 18 2019, Governor Gavin Newsom signed into law AB-5, which codified the California Supreme Court’s Dynamex v. Superior Court decision.  In Dynamex, the California Supreme Court adopted the so-called “ABC” test to determine coverage under the Industrial Welfare Commission (“IWC”) Wage Orders.  AB-5 expands the application of the ABC test to the entire … Continue Reading

Peace for Piece-Rate Employers in Washington

John EllisPaul CowieBy John Ellis and Paul Cowie on Posted in Class Actions, Minimum Wage, Wage and Hour
On September 5, 2019, the Washington Supreme Court issued a huge win for all non-agricultural employers who pay commission or piece-rate pay to their employees in Washington state. In a 6-3 decision, the Washington Supreme Court held in Sampson v. Knight Transportation (No. 96264-2) that a non-agricultural piece-rate employer complies with the Washington Minimum Wage … Continue Reading

Three Major Workplace Bills to Land on Gov. Gavin Newsom’s Desk

Timothy KimBy Timothy Kim on Posted in Arbitration Agreements, California Legislative Update, Class Actions, Discrimination, FEHA, Independent Contractors, Wage and Hour
Following the launch of the so-called “MeToo” movement, the California Legislature (controlled by a Democratic supermajority) has aggressively churned out new bills that further strengthen the ability for workers to sue their employers and increase the already-significant regulatory burden on these companies. This fall, the California Legislature is geared to send three significant bills to … Continue Reading

Employers Can Now Stand Firmly On Not Paying Employees For The Cost Of Slip-Resistant Shoes

Jason GuyserBy Jason Guyser on Posted in Expense Reimbursement, Labor and Employment, PAGA, Wage and Hour
On June 4, 2019, the Court of Appeal, Third Appellate District issued an unpublished opinion in Krista Townley v. BJ’s Restaurants, Inc. holding that BJ’s Restaurants was not required to reimburse its employees for the cost of black, slip-resistant, closed-toe shoes that BJ’s required its restaurant employees to wear. Due to the lack of California … Continue Reading

July 1, 2019 Minimum Wage Increases in California Counties and Municipalities

Wesley SheltonBy Wesley Shelton on Posted in Labor and Employment, Minimum Wage, Wage and Hour
Many California employees received a raise on January 1, 2019 when the state increased the minimum wage to $12 per hour for large employers (26 employees or more) and $11 per hour for small employers (25 employees or fewer). Effective July 1, 2019, several counties and municipalities in California are adding to these minimum wage … Continue Reading

California’s Meal and Rest Break Rules for Commercial Motor Vehicle Drivers Remain Preempted by Federal Law . . . For Now

Corrine HaysPaul CowieBy Corrine Hays and Paul Cowie on Posted in California Employment Legislation, Class Actions, Meal Periods, Rest Breaks, Wage and Hour
Signaling another positive development for interstate motor carriers operating in California, the United States District Court for the Central District of California (the “Central District”) recently dismissed a truck driver’s claims that motor carrier U.S. Xpress failed to provide a class of drivers with legally required meal and rest periods compliant with California law. See, … Continue Reading

The Future of Independent Contractors: Ninth Circuit Applies Dynamex Retroactively and the DLSE Issues Opinion Letter Expanding Its Scope

Justine PhillipsTimothy KimAndrea IsaacsBy Justine Phillips, Timothy Kim and Andrea Isaacs on Posted in Class Actions, Employment Work, Independent Contractors, Wage and Hour
Last year, the California Supreme Court decided Dynamex Operations West, Inc. v. Superior Court of Los Angeles, a landmark decision that dramatically increased the risk of misclassifying individuals as independent contractors. As previously reported, although Dynamex replaced the longstanding Borello standard with the “ABC” test, it also left two critical questions unaddressed. First, Dynamex did … Continue Reading

Equal Pay Act Amendment Passes House of Representatives

Eric RaphanLindsay Colvin StoneBy Eric Raphan and Lindsay Colvin Stone on Posted in Discrimination, ERISA, Fair Labor Standards Act (FLSA), Fair Pay and Safe Workplaces, Payroll, Reporting Requirements, Wage and Hour
On March 27, 2019, the U.S. House of Representatives voted to pass the Paycheck Fairness Act, an act designed to amend and strengthen the existing federal Equal Pay Act (“EPA”), 29 U.S.C. § 206(d). The Paycheck Fairness Act, which passed the House by a vote of 242-187 on a largely party-line basis, is sponsored by … Continue Reading

California Supreme Court Announces a Win for Payroll Outsourcing Industry

Theanna BezneyBy Theanna Bezney on Posted in Class Actions, Fair Labor Standards Act (FLSA), Labor and Employment, Minimum Wage, Payroll, Reporting Requirements, Wage and Hour
Last week, the California State Supreme Court struck a decisive victory in favor of payroll companies, issuing a unanimous opinion that an employee is not a third-party beneficiary of the contract between her employer and its payroll service provider. The court held that an employee-plaintiff has no standing to sue her employer’s payroll company for … Continue Reading

Ward v. Tilly’s, Inc.: California Employers Should Dial Back On-Call Shift Policies

Thomas KaufmanJoseph PeacockBy Thomas Kaufman and Joseph Peacock on Posted in Employer Scheduling Practices, Payroll, Wage and Hour
On February 4, 2019, the California Court of Appeal, Second District issued a 2-1 decision in Ward v. Tilly’s, Inc. in which it held employees must be given “reporting time pay” under Wage Order No. 7-2001 when an employer requires its employees to call in two hours before a potential shift to learn whether the … Continue Reading

SCOTUS Holds Independent Contractor Truck Drivers Exempt from Arbitration Under FAA

Amy HarwathBy Amy Harwath on Posted in Arbitration Agreements, Federal Arbitration Act (FAA), Independent Contractors, Labor and Employment, SCOTUS, Wage and Hour
On January 15, 2019, the Supreme Court issued its decision in New Prime Inc. v. Oliveira, where it decided independent contractor truck drivers cannot be forced into arbitration.  The Court’s decision is based on Federal Arbitration Act § 1, which excepts from coverage disputes involving “contracts of employment” with “workers engaged in foreign or interstate … Continue Reading

Managers Beware: Can you be held personally liable for wage and hour violations?

Michaela GoldsteinMichael CampbellBy Michaela Goldstein and Michael Campbell on Posted in California Employment Legislation, Minimum Wage, Wage and Hour
After two years, California courts are finally putting California’s “A Fair Day’s Pay Act” (the “Act”) to the test. While intended to help employees collect judgments against employers that are judgment proof, the Act created potential personal liability for an employer’s owners, directors, officers, and managing agents. Indeed, the Act added Labor Code Section 558.1, … Continue Reading

California Supreme Court Confirms Validity Of Meal Period Waivers For Healthcare Employees

Richard J. SimmonsRachel Patta HowardBy Richard J. Simmons and Rachel Patta Howard on Posted in Class Actions, Labor and Employment, Wage and Hour
On December 10, 2018, the California Supreme Court handed down its unanimous decision in Gerard, et al. v. Orange Coast Memorial Medical Center, affirming the Court of Appeal ruling that voluntary meal period waivers are permissible for healthcare employees who work long shifts, even if they work more than 12 hours. By allowing healthcare employees … Continue Reading

California Court of Appeal Affirms That Dynamex’s ABC Independent Contract Test Is Limited To Claims Arising Under Wage Orders

Patricia JengBy Patricia Jeng on Posted in Independent Contractors, Labor and Employment, Wage and Hour
In Jesus Cuitlahuac Garcia v. Border Transportation Group, LLC, et al, the California Court of Appeal, Fourth Appellate District has held that the ABC test set forth in Dynamex Operations West, Inc. v. Superior Court, 4 Cal.5th 903 (2018) applies only to causes of action brought under wage orders. Plaintiff Garcia was a taxicab driver … Continue Reading
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