On August 14, 2023, the U.S. Court of Appeals for the First Circuit issued a decision—Marcus v. American Contract Bridge League—clarifying and applying the standards for determining whether an employee qualifies for the Fair Labor Standards Act’s (FLSA) administrative exemption, and thus whether the employee is entitled to overtime payments under the FLSA.
The city of Evanston, Illinois, recently enacted the Fair Workweek Ordinance (24-O-23), expanding hourly workers’ rights to predictable scheduling across multiple industries, including hospitality, food service and restaurants, retail, warehouse services, manufacturing, and building services.
As the September 14, 2023, deadline to pass bills during the current session of the California Legislature fast approaches, the California Senate and Assembly are considering several employment law bills. Many are likely to pass. Below is a summary of some of the more significant bills.
On August 30, 2023, the U.S. Department of Labor (DOL) released a Notice of Proposed Rulemaking (NPRM) that would significantly raise the minimum weekly salary to qualify for one of the Fair Labor Standards Act’s (FLSA) three white-collar exemptions. If the changes go into effect, they would have a significant impact on how employers pay their employees and who is or is not entitled to overtime pay.
On August 23, 2023, the Minnesota Department of Labor and Industry (DLI) announced that minimum wage rates will be adjusted for inflation and increase 2.5 percent on January 1, 2024.
The Hawaiian island of Maui has been ravaged by unprecedented and quickly moving wildfires, which have taken a particular toll on hospitality employers. As the U.S. enters peak hurricane season, the Hawaiian and Canadian wildfires and the flooding caused by the recent California tropical storm serve as a reminder for employers to consider implementation or revision of their disaster plans, among other legal and practical considerations.
On July 21, 2023, the U.S. Court of Appeals for the Ninth Circuit kept in place a ruling that local delivery drivers who made deliveries completely inside California are still engaged in interstate commerce and exempt from the Federal Arbitration Act (FAA).
Amendments to New Jersey’s Unemployment Compensation Law (UCL) are scheduled to take effect on July 31, 2023. One of the most significant changes to the UCL is that employers will now need to electronically report certain “separation information” to the New Jersey Department of Labor and Workforce Development (NJDOL) immediately after an employee is separated. The NJDOL has explained that the purpose of the new law is to expedite claim processing.
On May 24, 2023, Governor Tim Walz signed into law omnibus legislation that includes an amendment to Minnesota’s labor law that protects employees’ right to discuss the employees’ own wages. This amendment further defines the types of adverse action that an employer may not take against employees for exercising that right. The effective date of this amendment is July 1, 2023.
The pay transparency trend has reached Illinois. House Bill 3129 amends the Illinois Equal Pay Act of 2003 by requiring employers with at least fifteen employees to include the pay scale and benefits in any job posting by January 1, 2025.
Employers across the country have grappled with the requirements of Colorado’s Equal Pay for Equal Work Act (EPEWA), since it went into effect on January 1, 2021. The act was the only one of its kind at the time, and has spawned similar legislative efforts around the country, including in California, New York, and Washington. Yet the Centennial State has stood alone in its requirement that employers notify their Colorado employees of “promotional opportunities” available to them, no matter where those opportunities exist in the organization or whether those employees might be qualified for or interested in such jobs.
On May 19, 2023, in Clark v. A&L Home Care and Training Center, LLC., the U.S. Court of Appeals for the Sixth Circuit rejected the familiar two-step certification procedure in collective actions under the Fair Labor Standards Act (FLSA), instead requiring lead plaintiffs to demonstrate a “strong likelihood” that other employees they seek to represent are “similarly situated” to the original plaintiffs. In so ruling, the Sixth Circuit became just the second circuit court to expressly reject the familiar two-step certification procedure in FLSA collective actions.
On 10 May 2023, the United Kingdom’s Department for Business and Trade published its policy paper, “Smarter Regulation to Grow the Economy.” The proposals contained therein are intended to “improve regulation across the board to reduce burdens, push down the cost of living, and drive economic growth.”
On April 14, 2023, the United States District Court for the Eastern District of Virginia (Ellis, J.) declined to conditionally certify a collective of USA Today sports website editors, ruling that the familiar two-step Fair Labor Standards Act (FLSA) collective certification process would lead to irrelevant parties learning of and potentially joining the lawsuit. The decision in Mathews represents a growing trend against the familiar two-step approach to certification of collective actions under the FLSA.
On November 3, 2022, Governor Phil Murphy signed into law a number of changes to New Jersey’s Unemployment Compensation Law (UCL) that will take effect on July 31, 2023.
Maryland’s 2023 legislative session has concluded with new legislation impacting Maryland employers. Governor Wes Moore (D) has already signed into law the Fair Wage Act of 2023, and legislation modifying Maryland’s Family and Medical Leave Program currently awaits his signature.
On March 29, 2023, the California Supreme Court put the final nail in the coffin of an employee’s claim that California Labor Code Section 204 requires employees to be paid on weekends. The California high court declined to review the case Parsons v. Estenson Logistics, LLC, in which an employee had sought to pursue claims under California’s Private Attorneys General Act (PAGA) alleging he was consistently paid two days late each week because his employer paid wages due on Saturday on the following Monday.
On April 7, 2023, the Los Angeles City Council proposed an ordinance to increase the minimum wage for both hotel workers and Los Angeles International Airport (LAX) workers.
In January 2023, Denver Mayor Michael Hancock approved an ordinance (File No. 22-1614) passed by the Denver City Council that provided new avenues for workers in the City and County of Denver to pursue claims for wage theft. Denver Labor, a division of the Auditor’s Office, recently adopted rules regarding enforcement of the new ordinance, providing important clarification on several aspects of the ordinance.
In addition to issuing annual statements showing the total compensation paid and income tax withheld for the preceding calendar year, Colorado employers are now required to notify employees in writing of the availability of income tax credits.
Employers are increasingly offering periods of leave as a benefit for employees to combat burnout and retain high-quality workers. Employees are also asking for leave more frequently.
On March 15, 2023, in a case of first impression, the United States Court of Appeals for the Third Circuit held that paid time off is not part of an employee’s salary. Therefore, the employer did not compromise employees’ exempt status under the Fair Labor Standards Act when it reduced their accumulated PTO for failing to meet performance objectives.
On February 16, 2023, Manhattan District Attorney Alvin L. Bragg Jr. announced the creation of a special unit to “investigate and prosecute” wage theft, harassment, and exploitation of workers. He also announced the establishment, in partnership with the New York State Department of Labor, of a fund to repay victims of such crimes. D.A. Bragg and his office further declared support for a proposed bill in the New York state legislature that would expand the existing crime of larceny to include wage theft.
Part of a recently passed pay predictability ordinance in Los Angeles is already causing some confusion for employers over a provision requiring retail employers to pay workers a premium for working a second shift within ten hours of the first shift. Such tightly scheduled shifts often occur when a worker is needed to close and then open the next day, referred to as “clopening” shifts.
On February 22, 2023, the Superior Court of New Jersey Appellate Division ruled that a hospital employee discharged for disciplinary reasons was not entitled to payment of accrued paid time off (PTO) because the hospital had an express policy that PTO would not be paid out after a disciplinary discharge.
February 20, 2023, was Presidents’ Day, one of several federal holidays occurring throughout the year in the United States. Private-sector employers are not required by federal law to give employees any federal holidays off. Nevertheless, many private companies provide at least some federal holidays off for their employees. Are those private-sector employers that choose to provide their employees with holidays off required to pay employees for that time?
On February 22, 2023, the Supreme Court of the United States ruled that a former oil rig employee who was paid a daily rate that totaled more than $200,000 annually is entitled to overtime pay under the Fair Labor Standards Act (FLSA).
Retail employers in Los Angeles will soon be required to provide employees with written, good faith estimates of their schedules and offer extra hours to current employees before hiring new workers under a new ordinance that takes effect on April 1, 2023. The “Los Angeles Fair Work Week Ordinance” makes the city the latest jurisdiction to pass a predictable scheduling law,
On February 2, 2023, the New York City Council introduced a bill (Int. No. 907) that proposes changes to Local Law 32, New York City’s current salary disclosure law, which became effective on November 1, 2022.
The Louisiana Court of Appeal, First Circuit, in DiVittorio v. Seale & Ross, PLC, affirmed a trial court’s judgment in favor of associate attorneys, granting them certain bonus compensation but denying another bonus claim. The appellate court held that the trial court had correctly ruled that the former associate attorneys earned their production bonuses, which were improperly withheld in bad faith.
