De Minimis” May Be Down, but It’s Not Out—And What Does It Mean for Employer Rounding Policies in California?

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?”

PA Raising Salary Threshold for White Collar Exemptions—Déjà Vu All Over Again … or Worse?

Jason E. Reisman

Here we go again, Pennsylvania employers, but this time on the local front, rather than nationally. Following up on Governor Wolf’s announcement in January that Pennsylvania needed to “modernize” its outdated wage and hour regulations—last updated in 1977—governing the executive, administrative, and professional exemptions under the Pennsylvania Minimum Wage Act, the Pennsylvania Department of Labor and Industry (“DOLI”) published proposed new regulations at the end of June.

The DOLI’s proposal includes significantly raising the minimum salary threshold required for these “white collar exemptions”—sound familiar? Worse yet, these proposed changes will ultimately increase the new salary minimum above the threshold originally proposed for the Fair Labor Standards Act (“FLSA”) by the U.S. Department of Labor (which, as you undoubtedly recall, was enjoined and then struck as over-reaching by an Obama-appointed federal judge in Texas). Continue reading “PA Raising Salary Threshold for White Collar Exemptions—Déjà Vu All Over Again … or Worse?”

Competitive Hiring Tool—Paying Off Employees’ Student Loans—Gains Traction

Daniel L. Morgan

According to the Pew Research Center, as of June 2017, the total amount of U.S. student debt was $1.3 trillion; and 53 percent of all Americans under the age of 30 with a bachelor’s degree or higher had an outstanding student loan.

Why the Large Uptick in Student Debt Has Caught the Attention of Employers

Many employers are discovering that benefit programs such as 401(k) plans, with employer matching contributions, hold little attraction for recent grads, who are burdened by student loans.

As the unemployment rate continues to drop, and the competition among employers for professional workers has begun to heat up, a trend appears to be developing among accounting firms, financial investment firms, and other businesses that hire recent grads: they offer to provide “student loan repayment benefits.” Continue reading “Competitive Hiring Tool—Paying Off Employees’ Student Loans—Gains Traction”

What #MeToo Means for the Maritime Sector

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”

Independent Contractors in California—Misclassification Is Now “Easy as ABC”

Caroline Powell Donelan

California employers are facing a harsh new reality as a result of the state Supreme Court’s recent decision adopting a new test for determining whether a worker can properly be classified as an independent contractor (versus an employee) “for purposes of California wage orders,” which generally impose obligations on employers relating to non-exempt employees’ wages, hours, and working conditions like meal periods and rest breaks.

The underlying claims were brought by two delivery drivers alleging Dynamex, a nationwide same-day courier and delivery service, had improperly classified them and other “similarly situated” drivers as independent contractors. In relevant part, these drivers:

  • were paid a flat fee or percentage of the delivery fee received from the customer;
  • were generally free to set their own schedules;
  • were free to reject or accept jobs assigned by Dynamex;
  • used their own cell phones and vehicles for work;
  • were free to choose their own routes;
  • could perform work for other companies; and
  • were hired for an indefinite period of time.

Under most tests distinguishing independent contractors from employees, these facts would have weighed toward an independent contractor determination. However, in a densely-academic, 82-page opinion, the Court held that the “suffer or permit to work” definition of “employ” contained in the wage orders should replace the more flexible “right of control” test which has been used in California since 1989. Specifically, the Court adopted the “ABC” test as the proper way to distinguish employees from independent contractors. Continue reading “Independent Contractors in California—Misclassification Is Now “Easy as ABC””

New Maryland #MeToo Bill Sets Up Public Shaming and Restrictions

Asima J. Ahmad

Maryland’s legislature recently passed Senate Bill 1010 in an effort to provide victims of sexual harassment additional workplace protections. The Bill awaits the governor’s signature.

Set to be effective October 1, 2018, and titled “Disclosing Sexual Harassment in the Workplace Act of 2018” (the “Act”), the Act voids any provision in an employment contract, policy, or agreement that waives substantive or procedural rights or remedies relating to a sexual harassment claim that accrues in the future, or to a retaliation claim for reporting or asserting a right or remedy based on sexual harassment (unless prohibited by federal law). Any employer who enforces, or attempts to enforce, such a provision will be liable for the employee’s attorney’s fees and costs. The Act will apply to any employment contract, policy, or agreement executed, “implicitly or explicitly extended,” or renewed on or after the effective date; so, it seems to cover policies and agreements implemented prior to October 1, 2018 that continue in place after that date. Continue reading “New Maryland #MeToo Bill Sets Up Public Shaming and Restrictions”

New York Says “#MeToo” as It Enacts Strict Anti-Harassment Measures

Anna Svensson

On April 12, New York Governor Andrew Cuomo signed into law a budget bill that includes significant changes in the obligations of New York employers related to sexual harassment (the “Anti-Harassment Law”). According to the Governor, the Anti-Harassment Law provides the “strongest and most comprehensive anti-sexual harassment protections in the nation,” as part of a hefty $168 billion budget deal for the 2019 fiscal year (which started April 1, 2018). The Anti-Harassment Law is consistent with a recent push by states and localities to expand employee protections against unlawful harassment in response to the #MeToo movement.

The Anti-Harassment Law includes both immediate and ongoing implications. Here are some of the highlights: Continue reading “New York Says “#MeToo” as It Enacts Strict Anti-Harassment Measures”