Settlement Talk Over Sushi: The Second Circuit Set to Decide Key FLSA Settlement Issue

Ryan, Patrick - 300dpi
Pat Ryan

Executive Summary:    Earlier this week, the Second Circuit Court of Appeals heard oral arguments regarding whether judicial review of a Fair Labor Standards Act (“FLSA”) settlement is required before entry of an offer of judgment pursuant to Rule 68 of the Federal Rules of Civil Procedure (“FRCP”).  While there is longstanding history mandating court approval of FLSA settlements, the majority of district courts in the Second Circuit—unlike most other Circuits—have allowed Rule 68 settlements absent judicial approval.  As such, employers in this Circuit have increasingly tried to use Rule 68 to avoid judicial scrutiny of settlement agreements.  After hearing oral arguments in Yu v. Hasaki Restaurant, Inc., 319 F.R.D. 111 (S.D.N.Y. 2017) this week, the Second Circuit appears primed to weigh in on this unsettled and controversial issue—which will determine whether judicial review or a system resembling private party contracting will govern in the Second Circuit.  Continue reading

New Illinois Laws Require Employers to Reevaluate Policies and Practices

Wage Hour - social, smallBreaks for Expressing Breastmilk Must Be Paid

Effective August 21, 2018, Illinois amended its Nursing Mothers in the Workplace Act (820 ILCS 260/10). The prior law, which went into effect in 2001, required employers who have more than five employees to provide unpaid break time to an employee who needed to express breast milk for her nursing infant child. The amendment now requires employers to pay for “reasonable” break time spent expressing breast milk, no matter how long it takes or how often it needs to occur. A limit of up to one year after the birth has now replaced a previously undefined period.  Continue reading

California Governor Signs Wave Of New Gender/Sex Related Bills Into Law In The Wake Of #MeToo

Wage Hour - social, smallExecutive Summary: On September 30, 2018, California Governor Edmund J. Brown, Jr. signed into law eight new bills involving gender and sexual harassment training and related issues. The Governor also signed into law two bills amending California’s lactation accommodation requirements. These laws were submitted by the legislature on the heels of the #MeToo movement, and the majority of these new laws were largely written to address workplace issues with respect to sexual harassment in particular.  Continue reading

Recent Case Provides Food for Thought on “Primary Duty” of FLSA Overtime-Exempt Managers

Prendergast, Mike - 300dpi
Mike Prendergast

In Clendenen v. Steak N Shake Operations, Inc., Case No. 4:17-cv-01506-JAR, 2018 U.S. Dist. LEXIS 167101 (E.D. Mo. Sept. 28, 2018), the U.S. District Court for the Eastern District of Missouri recently granted conditional class certification under the Fair Labor Standards Act (“FLSA”) to Steak ‘n Shake restaurant managers challenging their classification as overtime-exempt under the FLSA’s executive and administrative exemptions.  Conditional certification is the first step toward maintaining an FLSA collective action.  The Clendenen court found evidence to support conditional certification, including evidence that the managers’ duties were “largely the same as the non-exempt employees they supervised.”  Continue reading

Inching Closer to a New Overtime Rule?

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Julie Adams

In 2016, the U.S. Department of Labor (“DOL”) modified 29 C.F.R. § 541 – which regulates  the Fair Labor Standards Act’s (“FLSA”) white-collar exemptions (administrative, executive, professional, computer, and outside sales) – often referred to as the “Overtime Rule.”  Among other changes, the new Overtime Rule increased the salary threshold for white-collar employees from $23,660 to $47,476.  Before the new Overtime Rule took effect, Judge Amos Mazzant, a federal district judge in Texas, temporarily blocked the rule by entering an injunction in Nevada v. United States Dep’t of Labor, 227 F. Supp. 3d 696 (E.D. Tex. 2017).  Rather than appeal Judge Mazzant’s decision and pursue implementation of the revised 2016 rule, the DOL elected, instead, to proceed with a new rulemaking.  Continue reading

NLRB Proposes Rulemaking to End Rollercoaster of Joint-Employer Decisions

Gray, Kristin - 300dpi
Kristin Gray

On September 14, 2018, the National Labor Relations Board (NLRB) published a Notice of Proposed Rulemaking aiming to clarify the joint-employer standard and, as discussed in the NLRB’s September 13th announcement, “foster predictability, consistency and sustainability in the determination of joint-employer status.”  The Proposed Rulemaking would put an end to the dizzying twists and turns of recent decisions on the standard for determining when two businesses are joint-employers.  Continue reading

Ninth Circuit Holds That The FAAA Does Not Preempt California’s Common Law Independent Contractor Test, But Holds The Door Open For Preemption Of The More Restrictive “ABC” Test

Boughton, Ross - 300dpi
Ross Boughton

Executive Summary:  In recent years, courts throughout the nation have grappled with the interplay and potential conflict between state employment laws and the Federal Aviation Administration Authorization Act (“FAAAA”), which generally prohibits states from enforcing any law  “related to” a motor carrier’s “price, route, or service. . . with respect to the transportation of property.”  49 U.S.C. § 14501(c)(1).  The issue typically arises when a state employment law imposes employee requirements or restrictions that have an actual or potential impact on how a motor carriers operate or the price they charge.    Continue reading