Andrew A. Napier
On December 6, the Philadelphia City Council passed two pieces of legislation that already are being touted as altering the landscape for workers in the city, especially those in the service industry.
“Fair Workweek” Bill
The “Fair Workweek” Bill, introduced by Councilwoman Helen Gym in June, applies to large chain businesses with more than 250 employees in the retail, food, or hospitality sectors, and at least 30 locations across the country or state (“Covered Employers”). If signed it would go into effect on January 1, 2020, and will require Covered Employers to give employees (including full-time, part-time, and seasonal and temporary workers) who work within the geographical boundaries of the City, 10 days’ advance notice of their work schedule. The amount of advance notice will increase to 14 days beginning January 1, 2021. An employee may decline, without penalty, any shift that occurs less than nine hours after the end of a shift, and if the employee agrees to work the shift, the employer must pay the employee an extra $40 per shift. Continue reading “Philadelphia City Council Passes “Fair Workweek” Bill and Votes to Increase Minimum Wage for City Workers and Contractors”
Thomas J. Szymanski
The Fair Credit Reporting Act (“FCRA”) provides federally-imposed limitations on all employers who seek information from a Consumer Reporting Agency about an applicant or employee for use in making an employment decision, such as a hiring or promotion. The FCRA contains specific notice, authorization, and reporting requirements related to obtaining a Consumer Report, including credit reports and criminal background checks, and potentially taking an adverse employment action based on that information.
Requirements before you request a Consumer Report: Continue reading “Requesting a Background Check to Make an Employment Decision? Read This First.”
Natalie Alameddine and Caroline Powell Donelan
Last week, in a significant blow to claims that gig economy workers are entitled to pursue disputes on a class or collective basis, and possibly whether those workers will be able to establish that they are employees and not independent contractors, a three-judge panel of the Ninth Circuit Court of Appeals unanimously decertified a class of 240,000 Uber drivers. The decision in O’Conner v. Uber is a victory for the ride-share company, which will now be able to defend claims that it misclassified employees as independent contractors on an individual basis—one arbitration at a time.
For the past five years, there has been an ongoing and contentious dispute over whether Uber drivers (and similarly, Lyft and other ride-share drivers) are independent contractors or employees. If the workers are deemed to be employees, Uber could face hundreds of millions of dollars in alleged California labor code violations and business expense claims. To combat the possibility of having to litigate this issue on a class-wide basis, Uber entered into arbitration agreements with each driver, requiring that any driver’s claims be arbitrated and that each case had to be arbitrated individually (rather than as a class action). Continue reading “Goodbye Uber Class Action, Hello Individual Arbitration”
Scott F. Cooper
A decision this week from the Ninth Circuit Court of Appeals has further fueled the debate over whether obesity is a protected impairment under federal and state law.
In Casey Taylor et al. v. Burlington Northern Railroad Holdings Inc. et al., Case No. 16-35205 (9th Cir. Sept. 17, 2018), Burlington rejected Taylor’s application to become an electronic technician because his Body Mass Index (“BMI”) placed him in the “severely” or “morbidly” obese category. Complicating this case is that the company’s chief medical officer otherwise found Taylor qualified for the position. The company also was willing to reconsider the application if Taylor undertook additional pre-hire medical screening at his own expense. The Ninth Circuit earlier this year held that shifting pre-hire medical examination costs to an applicant is unlawful.
The Ninth Circuit certified the issue and sent it to the Supreme Court of Washington to determine its application under Washington state law. Pending that ruling, the Ninth Circuit will then resolve the issue under the federal Americans with Disabilities Act (“ADA”). How these decisions come out could have sweeping implications for employers who have acted against obese job applicants and employees. Continue reading “Too Fat to Work Here?—Not So Fast”
Laura Reathaford, Caroline Powell Donelan, and Caitlin I. Sanders
On July 26, 2018, the California Supreme Court issued its long-awaited opinion in Troester v. Starbucks Corp., __ P.3d __ (2018). In the days that have followed, legal headlines have lamented the presumed “death” of the de minimis doctrine. But is Troester really that simple? And what does it mean for employer rounding policies?
The issue in Troester was whether the federal Fair Labor Standards Act’s (“FLSA”) de minimis doctrine applies to claims for unpaid wages under certain provisions of the California Labor Code. For the better half of the past century, the de minimis doctrine has been applied in the federal wage and hour context to excuse payment of wages under the FLSA for insubstantial or insignificant periods of time. Continue reading ““De Minimis” May Be Down, but It’s Not Out—And What Does It Mean for Employer Rounding Policies in California?”
Emery Gullickson Richards
The U.S. Supreme Court’s decision in Epic Systems Corp. v. Lewis has significant ramifications for the scope of class action waivers in employee arbitration agreements. In each of the three consolidated cases that the Court’s opinion addressed, the plaintiffs were pursuing class/collective actions with Fair Labor Standards Act (“FLSA”) claims for unpaid overtime. Plaintiff Sheila Hobson’s FLSA claim in the Murphy Oil case had been dismissed by the trial court as a result of the arbitration provision in the employment agreement she signed when she started work at a gas station in Alabama. By contrast, plaintiff Jacob Lewis, a technical communications employee, had overcome a motion to dismiss his FLSA overtime class action in the Epic Systems case by arguing that a class action waiver in an arbitration agreement that had been emailed to him by his employer was unenforceable. In the Ernst & Young case, plaintiff Stephen Morris sought unpaid overtime under the FLSA and the California Labor Code for working long hours during audit season. As a result of the Supreme Court’s ruling, after remand, all of these claims now appear destined for arbitration unless they are resolved. The Epic Systems decision represents a broader affirmation, however, that arbitration agreements are enforceable regardless of the nature of an employee’s claim, even if the claims are brought pursuant to employment statutes that explicitly provide for class or collective actions. Continue reading “The Epic Systems Decision: Where Do Employers Go from Here?”
Susan L. Bickley, Emery Gullickson Richards, and Jeanne M. Grasso
The #MeToo movement has shone new light on issues for employers in the maritime industry seeking to ensure that seafarers and shore-based personnel can participate in a work environment free of sexual harassment and assault, both shipboard and shoreside. Employees at sea, often for months at a time, can face special challenges associated with a work environment that can be thousands of miles away from any home office, and that can lead to feelings of isolation, make communications difficult, involve close proximity between work spaces and living quarters and generally require employees to remain at the workplace during rest periods.
In other sectors of the global maritime industry, companies engaged in international business can find themselves navigating scenarios that arise from expectations regarding workplace interactions between men and women that are as diverse as their workforces. We examine here the unique legal framework that applies to sexual harassment in the maritime context, what to keep in mind for addressing incidents and recent trends regarding steps employers are currently taking in response. Continue reading “What #MeToo Means for the Maritime Sector”