Tag Archives: wage and hour

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

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

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

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

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

Uber Drivers’ Class Action Lawsuit Hits Permanent Red Light

Stephen FoxJonathan ClarkBy Stephen Fox and Jonathan Clark on Posted in Class Actions, Fair Labor Standards Act (FLSA), Independent Contractors
Last week, the ridesharing giant, Uber, secured a resounding legal win when a federal judge dismissed a putative class action lawsuit alleging the company violated the Fair Labor Standards Act by failing to pay drivers overtime. The ruling is enormously important, not simply for Uber, but for the growing rideshare technology industry as a whole. … 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

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

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

Bay Area Local Law Update: Emeryville’s “Fair Workweek Ordinance”; San Francisco Bans Salary History Inquiries; And Additional Accommodations For Lactating Employees

Keith GoodwinBy Keith Goodwin on Posted in Wage and Hour
Over the past few years, one of the biggest trends in employment law has been the proliferation of local ordinances imposing workplace standards beyond those mandated by state and federal laws. While many state governments have moved to preempt such regulations, California’s legislature has openly encouraged them, particularly in the wage and hour context. Unsurprisingly, … Continue Reading

Sheppard Mullin Secures Major Victory for Chipotle in Nationwide Misclassification Action By Demonstrating Variations Among Proposed Class Members

Richard J. SimmonsBrian MurphyLisa LewisMatthew TobiasBy Richard J. Simmons, Brian Murphy, Lisa Lewis and Matthew Tobias on Posted in Class Actions, Wage and Hour
The Court’s opinion in Scott v. Chipotle Mexican Grill demonstrates how employers can successfully combat class action claims that employees were misclassified as exempt. The successful defense of the class certification motion relied chiefly on deposition and declaration testimony to highlight inconsistencies, variations, and individualized inquiries that prevented resolution of the claims at issue on … Continue Reading

California Court of Appeal Affirms Validity of Hospital Meal Period Waivers

Richard J. SimmonsBy Richard J. Simmons on Posted in Class Actions, Meal Periods, Wage and Hour
The ability of hospitals to use meal period waivers was called into question by a 2015 Court of Appeal decision in Gerard v. Orange Coast Memorial Medical Center (Gerard I), which held that the provision in Wage Order 5 allowing waivers even when employees work over 12 hours was invalid.  Following two more years of … Continue Reading

U.S. Supreme Court to Decide Class Action Waiver Divide

Jason KearnaghanJoni L. NoggleBy Jason Kearnaghan and Joni L. Noggle on Posted in Class Actions, NLRB, Wage and Hour
On January 13, 2017, the United States Supreme Court consolidated and granted review of the three following cases involving the legality of arbitration agreements which contain class action waivers:  National Labor Relations Board v. Murphy Oil USA, Inc., from the 5th Circuit, Epic Systems Corp. v. Lewis, from the 7th Circuit, and Ernst & Young … Continue Reading

Supreme Court Holds That Rest Periods Must Be Free From Duties And Employer Control

Richard J. SimmonsJason KearnaghanBy Richard J. Simmons and Jason Kearnaghan on Posted in California Employment Legislation, Rest Breaks, Wage and Hour
On December 22, 2016, the California Supreme Court issued a critical decision in Augustus v. ABM Security Services, Inc., 2016 D.J. 12608 (2016), relating to California’s rest period obligations.  The California Supreme Court declared that state law prohibits on-duty and on-call rest periods.  It stated that employers must (1) relieve their employees of all duties … Continue Reading

California Employers – New Year, New Rules in 2017

Bryanne LewisKevin HoungAshley HiranoBy Bryanne Lewis, Kevin Houng and Ashley Hirano on Posted in California Employment Legislation, California Legislative Update, Discipline, Discrimination, E-verify, Educational Updates, Employee Benefits, Employment Authorization Verification, FEHA, Hiring, Retaliation, Termination, Wage and Hour
The new year will bring along a variety of new obligations for California employers.  Although some of the new laws clarify existing law and provide helpful guidance, several impose additional requirements.  This update highlights key provisions of some of the more notable changes taking effect in 2017.  Links to the statutes and/or prior updates regarding … Continue Reading

Texas Federal Court Blocks New Salary Restrictions for Exempt Employees

Evan MixThomas KaufmanBy Evan Mix and Thomas Kaufman on Posted in Exempt, Fair Labor Standards Act (FLSA), Wage and Hour
On November 22, 2016, a federal court in the Eastern District of Texas issued a preliminary injunction blocking the Department of Labor from enforcing new regulations that would have drastically reduced the number of white collar employees who are exempt from overtime.  The disputed regulations were set to take effect on December 1.… Continue Reading

New York State Department of Labor Proposes Increases to Overtime Exempt Salary Threshold

Lisa LewisDanielle ThompsonBy Lisa Lewis and Danielle Thompson on Posted in Exempt, New York Employment Legislation, Wage and Hour
[UPDATE] On December 29, 2016, the New York State Department of Labor (“NYSDOL”) adopted its proposed rule increasing overtime exempt salary thresholds for New York employees. The new rule is set to take effect in just two days on December 31, 2016. The NYSDOL made no changes to the version of the proposed rule published … Continue Reading

New York State Department of Labor Issues Final Wage Regulations Imposing New Notice and Consent Requirements on Direct Deposit and Debit Card Wage Payments

By Sheppard Mullin on Posted in Minimum Wage, New York Employment Legislation, Payroll, Wage and Hour
Effective March 7, 2017, employers who pay wages via direct deposit and/or payroll debit card will need to comply with more stringent requirements.  The New York State Department of Labor (the “NYSDOL”) recently issued final regulations governing the methods that New York employers may use to pay most “non-exempt” employees.  The regulations impose a number … Continue Reading

Ninth Circuit Invalidates Arbitration Agreement

Jason KearnaghanMelanie M. HamiltonThomas KaufmanBy Jason Kearnaghan, Melanie M. Hamilton and Thomas Kaufman on Posted in Arbitration Agreements, Class Actions, Federal Arbitration Act (FAA), National Labor Relations Act, National Labor Relations Board
On August 22, 2016, the Ninth Circuit joined the Seventh Circuit in the split amongst U.S. Circuit Courts of Appeal on the issue of enforceability of employment arbitration agreements precluding class actions. The Ninth Circuit, similar to the Seventh Circuit in Lewis v. Epic Sys. Corp., held in 2-1 decision that an employer violates the … Continue Reading

Governor Brown Signs Bill Clarifying Wage Statement Requirements for Exempt Employees

Paul BerkowitzBy Paul Berkowitz on Posted in California Employment Legislation, California Legislative Update, Exempt, Payroll, Wage and Hour
On July 22, 2015, Governor Brown signed AB 2535 that clarifies which employees for whom an employer must track hours worked and record those hours on their wage statements.  The bill will become effective January 1, 2017. Prior to this amendment, Labor Code section 226 required that an employee’s paystub include hours worked for all … Continue Reading

New PAGA Amendments Fail to Substantively Address Employers’ Concerns

Kelley BolarMichael CampbellBy Kelley Bolar and Michael Campbell on Posted in California Employment Legislation, Wage and Hour
Governor Brown recently approved Senate Bill No. 836, which amends the Private Attorneys General Act (“PAGA”) in a few minor technical ways, including new filing and notice requirements.  Although employers had hoped for substantive changes following the Governor’s initial budget proposal which expressly acknowledged that “employers are being sued and incurring substantial costs defending against … Continue Reading
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