The answer is not as much as you may think. Much of the recent media coverage of California’s Assembly Bill 5 (AB 5) suggests that the bill represents a sea change in California law with respect to the classification of independent contractors.
On September 11, 2019, the California Assembly passed a bill codifying last year’s Supreme Court of California decision establishing a new test to determine whether a worker is an independent contractor or an employee.
On August 29, 2019, legislators from the Michigan House of Representatives announced an ambitious package of 12 bills aimed at creating new criminal and civil penalties to combat employers that fail to properly pay wages and overtime pay. The legislation would also establish enhanced protections and penalties under Michigan’s whistleblower statute and create new civil remedies against employers for overzealous enforcement of noncompete agreements and for misclassifying employees as independent contractors.
In late July 2019, the Minnesota Department of Labor and Industry (DLI) released an update to its FAQ on Minnesota’s new wage theft law, including 37 new questions and answers to further clarify what is expected of employers under the statute. The new FAQ provides important guidance on several key points, while at the same time leaving other important questions unanswered. The following is a summary of several of the most commonly asked questions and DLI’s answers.
In July 2019, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued Opinion Letter FLSA2019-8 addressing whether paralegals are exempt from minimum wage and overtime requirements under Section 13(a)(1) of the Fair Labor Standards Act (FLSA).
A common challenge for employers of hourly or nonexempt employees who receive quarterly or annual nondiscretionary bonuses is how to factor such bonuses into the employees’ regular rates of pay and calculate the appropriate overtime premiums due to those employees who work more than 40 hours in a workweek. In July 2019, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued Opinion Letter FLSA2019-7, which discusses how employers may account for overtime pay as part of annual and quarterly nondiscretionary bonuses.
If you are a sports fan, then you might consider the regulatory agenda of the U.S. Department of Labor (DOL) in general, and the Wage and Hour Division (WHD) in particular, as winding down to the end of the third quarter of a football game or moving into the latter innings of a baseball game. In both sports, time and opportunity become critical for the team that wants to win but is not ahead. Regardless of your preferred game, as the November 3, 2020, elections draw closer (less than 440 days away), the WHD has been very busy in the regulatory realm under Wage and Hour Administrator Cheryl Stanton and Acting Secretary of Labor Patrick Pizzella.
On August 6, 2019, Acting Governor Sheila Oliver signed the New Jersey Wage Theft Act (WTA) into law. The law has been touted by proponents as the toughest wage theft statute in the country. Notwithstanding its name, the WTA goes far beyond attempting to prevent and punish intentional “wage theft” by significantly expanding the liability even the best-intentioned employers will face for state wage law violations.
Joining a chorus of cities and states addressing concerns involving employers’ failure to properly calculate employees’ pay, or to pay them at all, allowing employees to work “off the clock,” or take unauthorized or illegal deductions, on August 8, 2019, the City of Minneapolis enacted an ordinance prohibiting “wage theft,” which will go into effect on January 1, 2020.
On August 8, 2019, the U.S. Department of Labor announced that it issued three new opinion letters. The letters cover issues related to the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA).
On July 24, 2019, the Chicago City Council passed the most sweeping predictive scheduling ordinance in the country to date. Effective July 1, 2020 (January 1, 2021, for “safety-net” hospitals), the Chicago Fair Workweek Ordinance will require 10 days’ advance notice of work schedules for certain workers in the building services, healthcare, hotel, manufacturing, restaurant, retail, and warehouse services industries.
The U.S. District Court for the Eastern District of California recently ruled in an employment class action regarding misclassification of trucking industry owner-operators as independent contractors. The ruling is a win for numerous industries.
Last month, in Barbee v. Big River Steel, LLC, No. 18-2255 (June 20, 2019), the United States Court of Appeals for the Eighth Circuit held that an independent agreement for attorneys’ fees in connection with a Fair Labor Standards Act (FLSA) settlement does not require court approval—without intimating any position on the current circuit split as to whether FLSA settlements in general require judicial approval.
In our previous article, we summarized the key provisions of Minnesota’s new “wage theft” law. This article focuses specifically on the notices and disclosures employers are required to provide to their employees under the law, as well as new recordkeeping requirements.
Among the hardest-to-find workers in America today are restaurant and retail workers. The current labor market is the tightest in 49 years, and for the past year, there have been roughly a million more open positions in the United States than people looking for work. The hospitality sector always has faced recruitment challenges, but the recently shrinking applicant pool has forced employers to look for creative ways to lure workers to jobs in the food service and retail industries.
The Minnesota Legislature wrapped up its 2019 legislative session with a one-day special session last month that resulted in the passage of an omnibus appropriations bill, the Jobs and Economic Development Omnibus. The legislation includes new and surprising notice and recordkeeping mandates for Minnesota employers and creates new civil and criminal penalties for “wage theft.” In addition, it grants more authority to the Minnesota Department of Labor and Industry (DLI) to enforce compliance with the new statute.
On June 10, 2019, the Supreme Court of the United States unanimously ruled that state wage and hour laws do not apply to offshore drilling workers where federal law addresses the relevant issue. In Parker Drilling Management Services v. Newton, No. 18-389, the Supreme Court answered the question of whether California’s laws governing the minimum wage and payment for “standby time” applied to workers on oil rigs in federal waters off the coast of California.
On May 29, 2019, Assembly Bill No. 5 (AB 5) passed a California State Assembly floor vote and headed to the senate. The bill would codify the “ABC” test announced this past year by the Supreme Court of California.
On May 28, 2019, Governor Ned Lamont signed House Bill No. 5004 The bill, entitled “An Act Increasing the Minimum Fair Wage,” increases Connecticut’s minimum wage to $15.00 an hour over the next approximately four years.
In two recent companion cases, Andryeyeva v. New York Health Care, Inc. and Moreno v. Future Care Health Services, Inc., the New York Court of Appeals upheld the New York State Department of Labor’s (NYSDOL) 13-hour rule for the payment of home health aides working 24-hour shifts. Under this rule, an employer may pay home health aides for only 13 hours of a 24-hour shift if the aides receive at least 3 hours of meal break time and at least 8 hours of sleep (at least 5 of which must be uninterrupted).
On May 8, 2019, the Massachusetts Supreme Judicial Court (SJC) issued a unanimous opinion holding that salespeople who are paid solely on draws and commissions are entitled to separate and additional overtime and Sunday pay under Massachusetts law. The decision has far-reaching implications for most retailers, which have long relied on opinion letters from the Massachusetts Department of Labor Standards (DLS) suggesting that commissioned employees are not entitled to such additional compensation.
In what appears to be a first, the U.S. Department of Labor (DOL) has weighed in on the status of gig economy workers under the Fair Labor Standards Act (FLSA) in the form of an opinion letter.
After several years of failed attempts, the state of Washington passed a law on April 17, 2019 that will significantly limit the enforceability of noncompetition agreements under Washington law. Governor Jay Inslee has not yet signed the act into law, but it is expected that Governor Inslee will promptly do so.
On March 22, 2019, Governor Doug Ducey signed Arizona House Bill (HB) 2230 into law. As described in detail in our recent article, HB 2230 allows judgment creditors to serve writs of garnishment by certified mail, return receipt requested, in addition to traditional methods of service.
On April 1, 2019, the Department of Labor (DOL) announced that it will publish a notice of proposed rulemaking (NPRM) to amend its existing regulations regarding joint employment under the Fair Labor Standards Act (FLSA). This is no April Fools’ Day joke, as a joint employer is jointly and severally liable with the employer for all wages due to the employee under the FLSA.
On March 28, 2019, the U.S. Department of Labor (DOL) announced a proposed rule that would update and clarify regular rate requirements. Specifically, the proposed rule lists perks and benefits, such as unused paid leave and reimbursed expenses that employers can exclude when calculating an employee’s regular rate of pay. This article provides concise answers to employers’ frequently asked questions about the proposed rule.
On February 7, 2019, the Supreme Court of California issued its decision in Goonewardene v. ADP, LLC, holding that employees may not sue their employers’ payroll companies for wage claims in connection with their employment.
In part one of this series, we reported on several legislative developments in Minnesota that could impact employers. Now the Minnesota Legislature has proposed more bills affecting the workplace. These bills could alter the standard for sexual harassment, preempt local wage and sick leave laws, prohibit discrimination against unemployed job applicants, change the definition of “wage theft,” and further gender equality legislation.
Last year, a Wisconsin court of appeals held that it was unsettled under Wisconsin law whether employers may be required to pay employees for time spent driving between home and work in company vans if the vans are also transporting work tools and equipment.