Tag Archives: wage hour defense

Time Is Money: A Quick Wage-Hour Tip on … Ensuring You Don’t Inadvertently Convert Mandatory Charges into Gratuities for Staff

Many employers may—understandably—view gratuities as discretionary payments that customers leave in exchange for superior service.  After all, federal wage and hour regulations define “tips” as “sum[s] presented by a customer as a gift or gratuity in recognition of some service performed.”  29 C.F.R. § 531.52 (emphasis supplied).  The regulations also state that “compulsory charge[s] for service” are not tips.  29 C.F.R. § 531.55 (emphasis supplied).

But in some cases, a mandatory charge may qualify as a tip that employers must distribute to staff under state or local law.

Read full article

Court Invalidates Portion of U.S. DOL’S Business-Friendly Joint Employer Final Rule

On September 8, 2020, a federal district court struck down the U.S. Department of Labor’s (“DOL”) Final Rule on joint employer liability, concluding that the Rule violated the Administrative Procedure Act (“APA”) by impermissibly narrowing the definition of joint employment under the Fair Labor Standards Act (“FLSA”), departing from the DOL’s prior interpretations on joint employment without adequate explanation, and otherwise being arbitrary and capricious.  We previously blogged about the details of the Final Rule here.  The DOL published the Final Rule in the Federal Register on January 16, 2020 with an effective date of March 16, 2020.

Read full article

Ninth Circuit Concludes That Apple Retail Employees Are Entitled to Summary Judgment on Exit Search Claim Continue Reading…

Many employers with operations in California may already be familiar with Frlekin v. Apple, Inc.  The heavily litigated case, first filed in 2013, involves claims that Apple retail employees are entitled to compensation for time spent waiting for and undergoing mandatory exit searches.

The Ninth Circuit has now concluded that those employees are entitled to be paid for that time, holding that they are entitled to an award of summary judgment in their favor.  That is a far cry from the original 2015 ruling in the case in which United States District Court Judge William Alsup denied the plaintiffs’ motion for summary judgment and granted summary judgment to Apple, concluding that such time did not qualify as “hours worked” under California law because the searches were peripheral to the employees’ job duties, and could be avoided if the employees chose not to bring bags to work.

Read full article

Webinar Video: Wage & Hour – Returning to Work – Class Action Avoidance Series

In this installment of Epstein Becker Green’s “Class Action Avoidance” webinar series, attorney Paul DeCamp discusses wage and hour issues that could arise from transitioning out of the work-from-home reality so many businesses have faced and into the return-to-work phase.

Employers across the country should focus on creating a safe working environment. Certain states and localities have required that employers bringing employees back to the workspace provide or pay for any mandatory personal protective equipment (PPE), including thermometers, gloves, and masks. Additionally, employers should be aware of the time employees take for self-screening and employer-provided screening, such as temperature checks, questionnaires, and handwashing upon arrival.

Read full article

California Adds More Exemptions to Controversial Independent Contractor Statute

We have written frequently here about AB5, California’s controversial law that creates an “ABC” test that must be satisfied in order for a worker to be treated as an independent contractor.  As we explained here, AB5 codified and expanded the “ABC” test adopted by the California Supreme Court in Dynamex Operations West, Inc. v. Superior Court for determining whether workers in California should be classified as employees or as independent contractors.

While the statute was unambiguously aimed at ride share and food delivery companies that treat drivers as independent contractors, it was broadly written and was passed with little discussion.  Confusingly, it contained a mishmash of last-minute exemptions from the “ABC” test that, from a distance, seemed to be based on little more than which industry groups were able to get legislators’ ears in the hours before the statute was passed.

Read full article

Webinar Video: Wage & Hour – Expense Reimbursement – Class Action Avoidance Series

In this installment of Epstein Becker Green’s “Class Action Avoidance” webinar series, attorney Michael S. Kun addresses potential wage and hour class actions related to expense reimbursement for employees working from home during the COVID-19 pandemic.

Many employers may have employees working from home for the first time—or at least have employees in certain job categories doing so for the first time. Even employees who sometimes worked from home previously may be doing so for much more time now and, arguably, incurring greater expenses as a result.

Read full article

Webinar Video: Wage & Hour – Working from Home – Class Action Avoidance Series Continue Reading…

In this installment of Epstein Becker Green’s “Class Action Avoidance” webinar series, attorney Jeffrey H. Ruzal discusses wage and hour issues that could result from “work from home” policies and practices on account of the ongoing COVID-19 pandemic.

As fall approaches, businesses are deciding whether to fully reopen, maintain a largely remote workplace, or provide employees with the option of working in the workplace or at home through a hybrid approach. Recent reports and surveys have shown that many remote workers throughout the United States have been, on balance, satisfied with their current work-from-home arrangements. While these arrangements might prove mutually beneficial to employers and their employees, employers must be mindful of the potential wage and hour issues attendant to work-from-home scenarios.

Read full article

Ninth Circuit Conclusion That Amazon Delivery Drivers Don’t Need To Arbitrate Their Claims Under FAA’s “Transportation Worker” Exemption Highlights Conflict Among Courts

Given the ever increasing number of wage-hour class and collective actions being filed against employers, it is no surprise that may employers have turned to arbitration agreements with class and collective action waivers as a first line of defense, particularly after the United States Supreme Court’s landmark 2018 Epic Systems v. Lewis decision.

If there is a common misconception about Epic Systems, however, it is that the Supreme Court concluded that all arbitration agreements with all employees are enforceable under all circumstances.  The Court reached no such conclusion. In fact, the Court went out of its way to explain that arbitration agreements remain susceptible to challenges, including challenges that would be available as to other contracts.

Read full article

Emergency Stay of TRO Against Ride Share Companies Means Californians Won’t Have To Live Without Services

As we wrote here just several days ago, Californians were facing the seemingly unimaginable this week– the possibility of living without ride share services for the foreseeable future.

In short, a state court judge issue a temporary restraining order (“TRO”) requiring ride share companies to treat their drivers as employees in purported compliance with  AB 5, California’s controversial new law that only permits workers to be classified as independent contractors in most industries if they satisfy an “ABC” test.

Read full article

Californians May Have to Live Without Ride Share Services During Appeal of Temporary Restraining Order

To some, it may feel like it was a lifetime ago when ride share companies did not even exist.  In those seemingly long-ago days, people relied upon friends to drive them to or from the airport, or assigned designated drivers for those nights when they attended events where alcohol would be served, or used other methods of transportation to travel the roadways to their various destinations.

Californians may soon be living like that again.

Read full article