The Top 10 Labor and Employment Issues Keeping Retailers Up at Night in 2021

Now that the inauguration has passed and the Biden administration has begun its work, it is a good time for retailers to take stock of the labor and employment issues that are likely to assume prominence in 2021, and to consider preparing to meet the challenges each of these issues pose. In no particular order, below are the top 10 issues that are likely to keep retail employers up at night in 2021.

Massachusetts Amends Holiday Premium Pay Law and Tips Act as Part of Economic Stimulus Package

On January 14, 2021, Massachusetts Governor Charlie Baker signed into law an economic stimulus bill, H.5250, An Act Enabling Partnerships for Growth, which includes two significant changes to Massachusetts wage and hour laws. First, the new legislation amended the law pertaining to holiday premium pay on New Year’s Day, Columbus Day, and Veterans Day (M.G.L. c. 136 § 16) to phase out the premium pay requirement by 2023. Second, the legislation enacted a sweeping amendment to the Massachusetts Tips Act (M.G.L. c. 149 § 152A) to broaden significantly the definition of “wait staff employee.” These changes will offer significant economic relief to the retail and hospitality industries.

Massachusetts Federal Court Preliminarily Requires Employer to Allow Employee’s Teleworking

On September 16, 2020, in Peeples v. Clinical Support Options, Inc., No. 3:20-cv-30144, a federal district court in Massachusetts took the unusual step of precluding an employer from discharging an employee who claimed an inability to work in the office due to a disability, and ordered the employer to allow the employee to telework for at least 60 days.

Party of One: Collective Action Against Outback Steakhouse Denied due to Lack of Personal Jurisdiction

The U.S. District Court for the District of Massachusetts denied conditional class action certification in a case involving a front of house (FOH) manager suing Outback Steakhouse for unpaid overtime under the Fair Labor Standards Act (FLSA). The court applied the Supreme Court of the United States’ reasoning in its 2017 decision in Bristol-Myers Squibb v. Superior Court of California, which involved a class action in California state court by a purported class of more than 600 plaintiffs, most of whom were not California residents.

Massachusetts Attorney General Issues Guidance on New Equal Pay Law

On March 1, 2018, the Massachusetts Attorney General (AG) issued detailed guidance on the amendments to the Massachusetts Equal Pay Act (MEPA), which are set to go into effect on July 1, 2018. The amendments, which were enacted in 2016, will overhaul MEPA, a law that has been in effect for over 70 years, and make it one of the strictest pay equity laws in the nation.

Preparing for the New Massachusetts Equal Pay Law, Part I: Whether, When, and How to Conduct a Pay Equity Audit

The July 1, 2018, implementation date for the amendments to the Massachusetts Equal Pay Act (MEPA) is less than a year away. The amendments approved in 2016 will bring about substantial changes to the definition of “comparable work,” employer defenses, statutes of limitations, and prohibited employer practices, such as salary history inquiries.

Mind the (Pay) Gap: Retailers May Want to Prep for Pay Equity Inquiries From Investors

In 2016, several technology companies received or responded to proposals from investors that requested shareholder votes regarding whether the companies should be required to prepare reports addressing their policies and goals to reduce the gender pay gap. This year, shareholder activists are turning their sights on the retail industry, citing concerns with pay gaps across gender and racial lines. According to a January 10, 2017 report in Bloomberg News, pay equity-related shareholder resolutions have been submitted to several major retailers.

The Top 10 Labor and Employment Issues Retailers Will Face in 2017

The coming of a new year always presents uncertainty for retail employers on the labor and employment front, but particularly so this year with the coming of the Trump administration and Republican majority in Congress. Questions abound about whether and how the Trump administration will roll back the Obama administration’s executive orders and rulemaking in the employment arena, what the National Labor Relations Board (NLRB) will look like and do, and how the Trump administration’s new appointments to the federal bench may shape the interpretation of laws impacting retail employers into the future.

Retail and Hospitality Employers Grapple With the DOL’s Final FLSA Part 541 Regulations

For over a year, retail and hospitality employers have been anxiously awaiting the issuance of the U.S. Department of Labor’s (DOL) final overtime regulations—regulations which many had predicted would impact retail and hospitality employers more than most. Among their biggest fears was that the DOL would make changes to the duties test, increase the salary minimum to the highest level contemplated, and simultaneously disallow inclusion of bonuses to meet the salary minimum. Luckily, the DOL decided not to include any of those proposed changes in the final regulations. However, the changes that retail and hospitality employers will be required to implement by December 1, 2016 are expected to impact retail and hospitality businesses in a profound and negative way. According to David French, senior vice president for government relations at the National Retail Federation, a major industry group representing retailers and chain restaurants, “DOL’s new overtime rules are a massive failure. They are a failure of the regulatory process. They are a failure to listen. And, most of all, they are a failure to face reality.”

Retailers Share Struggles and Strategies in Preparing for Overtime Changes

The proposed changes to the Fair Labor Standards Act’s (FLSA) overtime rules were a hot topic on the minds of retailers at the National Retail Federation’s Committee on Employment Law meeting, which was held on April 21–22, 2016. At the conference, Elizabeth S. Washko, Office Managing Shareholder of Ogletree Deakins’ Nashville office, moderated a panel discussion on what retail companies are doing now to prepare for the coming changes to the FLSA’s overtime regulations. On the panel with Washko were in-house counsel from four major retailers with operations throughout the United States, representing both brick-and-mortar, as well as online, retailers. Representatives from other retailers in the audience also shared their concerns and tactics.

Attorney Generals From Nine States Cooperate on Predictable Scheduling Inquiries of Retailers

As we previously reported, “predictive scheduling” is one of the most closely watched issues by retailers today. In April 2015, New York State Attorney General Eric T. Schneiderman garnered national news headlines when he launched an inquiry into the on-call scheduling practices of a slew of large national retailers in New York, expressing public concern about the impact of such practices on workers and raising questions about the possible illegality of such practices under existing New York law requiring “reporting pay” for employees who report to work but are not required to perform any work due to events like the closure of the business because of inclement weather.

Equal Pay: A Growing Issue for Retail and Hospitality Employers to Watch in 2016

The equal pay movement gained significant ground in 2015, with new equal pay legislation enacted in two large states, new pay equity rules issued for federal contractors, and equal pay legislation introduced in several states. President Obama discussed the need for equal pay during his 2015 State of the Union address and Hollywood drew attention to the equal pay issue as well with two high-profile actors speaking out publicly against pay inequality.

Preparing for the Upcoming Amendments to the FLSA Overtime Regulations: A Toolkit for Retail and Hospitality Employers

As we have previously reported, the U.S. Department of Labor’s (DOL) proposed amendments to the Fair Labor Standards Act (FLSA), specifically as to the criteria for the Part 541 “white collar” exemptions, are projected to have an enormous impact on retail and hospitality employers. If these amendments are made final without revision, they will result in: (1) a dramatic increase to the minimum salary required for most of the employees who qualify for white collar exemptions; (2) a substantial increase in the minimum compensation required for an employee to qualify for the Highly Compensated Employee exemption; and (3) annual adjustments to these minimums tied to changes in the Consumer Price Index.

Ogletree Governmental Affairs State Round-Up

In the past few months, a number of state and local developments have emerged that are likely to resonate across the country. The following is a tour of some of the most recent and significant state-specific legislation, legal rulings, and other developments occurring around the United States.

The Minimum Wage Battle Is Heating Up and Retail Is Fighting Back

Over the past two years, we have seen minimum wage hikes in states and cities (such as St. Louis, Kansas City, Los Angeles, and Emeryville) across the country as labor groups push for a universal $15 per hour minimum wage. With the presidential elections coming, organized labor is reinvigorating its battle to increase the minimum wage and is targeting the retail industry through a national television advertising campaign criticizing retail jobs and retail employers. Retailers are not, however, sitting back passively. The largest industry group representing retailers—the National Retail Federation (NRF) —is fighting back on their behalf and has launched its own advertising counterattack on national television.

Predictive Scheduling: A Primer for Retail and Hospitality Employers

One of the most closely watched issues today among retail and hospitality employers is “predictive scheduling,” or as opponents call it, “restrictive scheduling.” Predictive scheduling has become the new cause célèbre among labor activists around the country who are pushing legislation at the federal, state, and local levels to restrict the ability of retailers and hospitality employers to use “on call” scheduling (i.e., requiring employees to call or text to learn on short notice whether they are needed for work). Predictive scheduling activists argue that on-call scheduling practices unreasonably interfere with the lives of workers who plan to work and then find out at the last minute that they are not needed. Retail and hospitality employers and industry groups argue that predictive scheduling measures would add unnecessary burdens on their businesses, remove their ability to be flexible in running their businesses, increase costs by requiring them to pay employees for cancelled shifts, and unreasonably interfere in their relationships with their employees—many of whom went into retail for the scheduling flexibility.

Massachusetts Policies and Procedures “Checkup”: The Top 10 Areas for Review

It’s a good time for Massachusetts employers to perform a “checkup” on their policies and procedures to make sure they are compliant with Massachusetts law before the start of the new year. There have been many changes to the laws governing the employer-employee relationship in Massachusetts recently, particularly in the area of employee leaves of absence. In addition, Massachusetts has a host of other quirky state law requirements that trip up both local and national employers on a frequent basis.

New Massachusetts Minimum Wage Regulations Contain Significant Changes

While the January 2015 increases in the Massachusetts minimum wage for regular and tipped employees have received considerable attention and publicity, the Massachusetts Department of Labor Standards (DLS) also issued new minimum wage regulations to little fanfare. The new regulations have been somewhat of a “sleeper,” even though they are a marked departure from existing law in some areas.

How Retailers Are Responding to the New “Ambush Election” Rules With Employee Engagement Strategies

On April 14, 2015, the National Labor Relations Board’s “ambush election” rules went into effect, making it easier for unions to organize in the retail setting and beyond. The next day, demonstrations against retailers and hospitality employers took place throughout the country, organized by several union-backed groups seeking to raise employee wages to $15 per hour.  According to the retailers who attended the National Retail Federation’s (NRF) spring meeting of the Committee on Employment Law last week, and based on feedback from our own retail clients, retailers have not yet seen a huge spike in the filing of union petitions in the wake of the implementation of the new rules. Retailers are, however, very concerned about the new ambush election rules and the possibility of more union campaigns, especially those seeking to certify smaller, discrete bargaining units.

Three Tips on Avoiding Summer Internship Headaches

Spring is here and retailers across the country are considering hiring summer interns in areas such as finance, communications, marketing, merchandising, production, and public relations.   Internships serve a valuable training role for students interested in retail careers, and they provide an important recruiting vehicle for retailers. According to the National Retail Federation, retailers in the United States hired approximately 9,400 college students for internships and filled more than 2,000 full-time jobs with 2014 graduates last summer.