Category Archives: Wage and Hour

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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 SedlockBy Theanna Sedlock 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 HowardBy Richard J. Simmons and Rachel 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

New Jersey Department of Labor and Workforce Development Issues Proposed Regulations For the New Jersey Sick Leave Act

Sean KirbyBy Sean Kirby and Jamie Moelis* on Posted in New Jersey Legislative Update, Paid Sick Leave, Wage and Hour
As detailed previously here, the New Jersey Paid Sick Leave Act (the “Act”), goes into effect October 29, 2018. In general, the Act allows New Jersey employees to accrue one (1) hour of sick leave time per thirty (30) hours worked, and allows New Jersey employees to use earned sick leave time for: (i) diagnosis, … Continue Reading

California Supreme Court Issues Narrow Holding In De Minimis Case, Leaving Many Issues Unresolved

John EllisBy John Ellis on Posted in Employment Lawyers, Employment Work, Fair Labor Standards Act (FLSA), Labor and Employment, Wage and Hour
On July 26, 2018, the California Supreme Court issued its long awaited decision in Troester v. Starbucks Corporation (S234969) on whether California wage and hour law recognizes the de minimis doctrine established by the United States Supreme Court in Anderson v. Mt. Clemens Pottery Co. 328 U.S. 680 (1946) for wage claims arising under federal … Continue Reading

California Court Reaffirms And Extends Rounding Rules

Thomas KaufmanMichael CampbellBy Thomas Kaufman and Michael Campbell on Posted in Class Actions, Wage and Hour
In AHMC Healthcare, Inc. v. Superior Court, the California Court of Appeal, Second Appellate District, Division Four, extended a prior line of California cases holding that California law follows federal law with respect to evaluating the lawfulness of time clock rounding systems. You can read our prior article about See’s Candy Shops I here. Specifically, … Continue Reading

Minimum Wage Inches Closer to Reality for Tipped Workers in the District of Columbia

Denise GiraudoJenna MennonaBy Denise Giraudo and Jenna Mennona on Posted in Minimum Wage, Wage and Hour
On June 19, 2018, District of Columbia residents voted to pass (by a 55.14% to 44.86% margin) Initiative 77, providing for a single minimum wage for all employees, including tipped workers. The restaurant industry led the opposition to the Initiative noting that the additional labor costs of the minimum wage will need to be sourced … Continue Reading

Court Expands Reach of California PAGA Representative Actions

Wesley SheltonThomas KaufmanBy Wesley Shelton and Thomas Kaufman on Posted in California Employment Legislation, PAGA, Wage and Hour
The California Court of Appeals recently decided a new case potentially expanding the scope and impact of Private Attorneys General Act (PAGA) claims brought by an employee against his employer. In Huff v. Securitas Security Services USA, Inc., the court posed the question of “whether a plaintiff who brings a representative action under PAGA may … Continue Reading

U.S. Supreme Court Upholds Enforceability of Mandatory Employment Class Action Waivers

Thomas KaufmanJoni L. NoggleBy Thomas Kaufman and Joni L. Noggle on Posted in Arbitration Agreements, Class Actions, National Labor Relations Act, National Labor Relations Board, SCOTUS, Wage and Hour
On May 21, 2018, the United States Supreme Court upheld the legality of arbitration agreements containing class action waivers. In a 5-4 decision written by Justice Gorsuch, the Court held that arbitration agreements providing for individualized proceedings were valid, and neither the Federal Arbitration Act’s (“FAA”) savings clause, nor the National Labor Relations Act (“NLRA”) suggest otherwise.… Continue Reading

Court Rejects Plaintiffs’ Attempt to Double-Dip in Settlement Pool

Kimpo NgoiBy Kimpo Ngoi on Posted in Class Actions, Joint Employment, Wage and Hour
It is a rare occasion that the phrase “joint employer” has positive implications for any business. However, a panel sitting on the California Court of Appeals recently gave one party in a joint employer arrangement cause to celebrate when it held in Castillo v. Glenair, Inc., 22 Cal. App. 5th 348 (2018) [1], that the settlement … Continue Reading

The Dynamex Decision: The California Supreme Court Restricts Use of Independent Contractors

Timothy KimBy Timothy Kim on Posted in Class Actions, Employment Work, Independent Contractors, Labor and Employment, Wage and Hour
On Monday, April 30, 2018, the California Supreme Court issued a landmark decision in the matter of Dynamex Operations West, Inc. v. Superior Court of Los Angeles. In a voluminous, 82-page decision, the California Supreme Court reinterpreted and ultimately rejected the Borello test for determining whether workers should be classified as either employees or independent … Continue Reading

California Legislature Introduces Bill That Could Result In Massive Penalties For Employers For Late Payment of Wages

Rachel HowardBy Rachel Howard on Posted in California Employment Legislation, California Legislative Update, Wage and Hour
Currently working its way through the California Legislature is AB 2613, a potentially massive expansion of liability on employers and individuals for underpayment of wages. AB 2613 seeks to amend the California Labor Code in three separate ways. First, Labor Code Section 210 would be amended to provide that an employer “or other person acting … Continue Reading

Department of Labor Offers Employers Clarity By Resuming Its Practice of Issuing Opinion Letters

Denise GiraudoBrooke PurcellBy Denise Giraudo and Brooke Purcell on Posted in Department of Labor, Fair Labor Standards Act (FLSA), Wage and Hour
In a welcome departure from its recent practice, the U.S. Department of Labor’s Wage and Hour Division (WHD) recently issued its first new opinion letters in almost ten years. In addition to issuing three new opinion letters earlier this month, on January 5, 2018, WHD reissued seventeen opinion letters previously withdrawn under the Obama administration. … Continue Reading

Chicago Considering Predictive Scheduling: What Employers Need to Know

Amy HarwathBy Amy Harwath on Posted in Employer Scheduling Practices, Wage and Hour
Following a growing nationwide trend, the Chicago City Council is considering new legislation that would require employers to pay employees for any scheduling changes made with less than two weeks’ notice.  If passed, the Chicago Fair Workweek Ordinance will go into effect on July 1, 2018, and the city will join the likes of San … Continue Reading

Ninth Circuit Holds Prior Salary Cannot Justify Wage Differences

Kelly HensleyBrian FongBy Kelly Hensley and Brian Fong on Posted in Equal Pay, Fair Pay and Safe Workplaces, Wage and Hour
Enacted in 1963, the Equal Pay Act prohibits differential payments between male and female employees doing equal work except when made pursuant to a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a fourth, catch-all exception for “a differential based on any other factor other than … Continue Reading

New Tip Pooling Guidelines For Employers

Keith GoodwinGreg LabateBy Keith Goodwin and Greg Labate on Posted in Fair Labor Standards Act (FLSA), Tip Pooling, Wage and Hour
The recent passage of the Consolidated Appropriations Act of 2018 (“H.R. 1625”), an 878-page omnibus spending bill, significantly changes the rules for tip pooling under the Fair Labor Standards Act (the “FLSA”). While the conditions for taking a tip credit toward federal minimum wage obligations remain essentially unchanged, H.R. 1625 appears to permit the inclusion … Continue Reading
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