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?

Adams, Julie 300dpi
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

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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

What Issues May Employers Be Required to Address as Hurricane Florence Threatens?

florenceExecutive Summary: As the East Coast of the U.S. braces for Hurricane Florence, the approaching storm serves as a reminder that employers should be prepared to address storm-related issues if they are required to close their businesses and as they prepare to resume normal operations. For example, employers need to determine whether closing the office means having to pay workers who stay home, being on the hook for unemployment compensation, and whether workers’ compensation applies to weather-related injuries. Continue reading

Tip Credits and Florida Minimum Wage Laws

Gomez, Rudy - 300dpi
Rudy Gomez

Background: The Fair Labor Standards Act (“FLSA”) and Florida minimum wage law allow an employer to take a tip credit toward its minimum wage obligation for “tipped employees”. A “tipped employee” is an employee who customarily and regularly receives more than $30 per month in tips. 29 U.S.C. § 203(t). An employer is permitted to take a tip credit equal to the difference between the minimum wage (currently $8.25 in Florida) and the required cash wage (currently must be at least $5.23 in Florida). Thus, the maximum tip credit that an employer can currently claim under the FLSA and Florida law is $3.02 per hour ($8.25 – $5.23).  Continue reading