Category Archives: Wage and Hour

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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 GiraudoBy 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

Alvarado v. Dart Container Corporation of California

Brett YoungBy Brett Young on Posted in Wage and Hour
On March 5, 2018, the California Supreme Court issued its decision in the Alvarado v. Dart Container Corporation of California case. The Court’s decision will have far reaching consequences for employers throughout the state by fundamentally changing how overtime is calculated. In short, the Court held that when calculating overtime in pay periods in which … Continue Reading

Department of Labor Announces New Payroll Audit Pilot Program

Danielle ThompsonBy Danielle Thompson on Posted in Department of Labor, Fair Labor Standards Act (FLSA), Minimum Wage, Wage and Hour
On Tuesday, March 6, 2018, the U.S. Department of Labor (“DOL”) announced its launch of the Payroll Audit Independent Determination (PAID) Program (“PAID” or the “Program”) – aimed at increasing employers’ FLSA compliance and timely payment of back wages to employees. The Program, which will start with a six-month pilot period prior to evaluation and … Continue Reading

PAGA Claim Defeated Based on Insufficient Notice to the LWDA

Ryan KruegerBy Ryan Krueger on Posted in PAGA, Wage and Hour
Last month, the California Court of Appeal determined in Khan v. Dunn-Edwards Corp., 2018 Cal.App. LEXIS 44 (Cal. App. 2d Dist. Jan. 4, 2018)(certified for publication), that a former employee’s claim under the Private Attorneys General Act (“PAGA”) failed due to insufficient notice to the California Labor and Workforce Development Agency (“LWDA”). Plaintiff’s Lawsuit & … Continue Reading

New Year, New Minimum Wage Rates in California

Matthew TobiasRyan KruegerBy Matthew Tobias and Ryan Krueger on Posted in California Employment Legislation, Minimum Wage, Wage and Hour
Beginning January 1, 2018, the new California minimum wage rate for employers with 26 or more employees will be $11.00 per hour and the new California minimum wage rate for employers with 25 or fewer employees will be $10.50 per hour. As we previously reported, effective January 1, 2017, the California state minimum wage began … Continue Reading

Second Circuit Court of Appeals Rules That Hearst Interns Are Not Employees

Ryan DuffyBy Ryan Duffy on Posted in Fair Labor Standards Act (FLSA), Other, Unpaid Volunteers, Wage and Hour
In a decision issued earlier this month, the Second Circuit Court of Appeals ruled that participants in unpaid internship programs offered by the Hearst Corporation could not be classified as “employees” of Hearst and therefore were not entitled to compensation for their internships under the Fair Labor Standards Act (FLSA). The Second Circuit’s decision in … Continue Reading

Jury Returns Verdict in Favor of Dollar Tree in Electronic Wage Statement Class Action

Reanne Swafford-HarrisBy Reanne Swafford-Harris on Posted in California Employment Legislation, Class Actions, Wage and Hour
On November 7, 2017, after a four-day trial, a federal jury in Los Angeles, California returned a verdict in favor of Dollar Tree Stores, Inc. in a class action filed against the company by former employee Francisca Guillen. The case was pending in the Central District of California before Hon. Michael W. Fitzgerald.… Continue Reading

Sixth Circuit Provides Clarification On Legality Of Draw-On-Commission Policy

Ryan KruegerMatthew TobiasBy Ryan Krueger and Matthew Tobias on Posted in Fair Labor Standards Act (FLSA), Wage and Hour
Last month, the Sixth Circuit revived a lawsuit brought under the Fair Labor Standards Act (“FLSA”) alleging that a retailer’s commission policy was unlawful in Stein v. hhgregg, Inc., 2017 U.S. App. LEXIS 19908 (6th Cir. Ohio Oct. 12, 2017). The decision provides support for the legality of taking a draw on an employee’s future … Continue Reading

Promoting Wellness, Not Litigation

Wesley SheltonBy Wesley Shelton on Posted in Disability, Reasonable Accommodation, Wage and Hour
With ever-increasing employer health care costs, it’s not surprising that Workplace Wellness Programs are becoming more common and comprehensive. According to Fidelity Investment’s fifth annual wellness survey, 95% of companies plan to offer some kind of health improvement program for their employees, and plan to spend an average of $594 per employee on wellness-based incentives. … Continue Reading
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