On April 3, 2017, a federal district court in New Jersey rejected the National Labor Relation Board’s (“NLRB”) D.R. Horton and Murphy Oil holdings and upheld employee waivers of class and collective arbitration. In dismissing wage and overtime claims brought by an employee of Chili’s Grill & Bar, District Judge Noel Hillman ruled that such mandatory arbitration agreements do not violate the National Labor Relations Act. Cicero v. Quality Dining, Inc., et al, 1:16-cv-05806 (April 3, 2017).

Judge Hillman noted the issue was pending before the U.S. Supreme Court, and that the Third Circuit had yet to rule on the issue. However, he also noted a related action, Joseph v. Quality Dining, in the Eastern District of Pennsylvania and a similar case decided by another federal district judge in New Jersey in Kobren v. A-1 Limousine Inc., both of which also rejected the NLRB’s position.

The NLRB has acquiesced in employers requiring employees to waive court action and agree to submit to arbitration wage and overtime and other employment related claims. However the Board has insisted that employees may not be required to arbitrate each employee’s claims separately, in individual arbitration. This, the Board contends, interferes with employees’ rights to participate in concerted activities for their mutual aid and benefit, otherwise protected under Sections 7 and 8 (a) (1) of the NLRA. In making this argument, commentators point out that the Board appears to be neglecting the second part of Section 7 which expressly reserves to employees the right to refrain from participating in any and all concerted activity.   NLRB opponents contend that waivers of class and collective arbitration are an exercise of that right.

The Supreme Court will hear arguments in the Fall in Murphy Oil and consolidated cases as to whether the NLRA prohibits an employer from requiring employees to agree to waive their rights to arbitrate employment disputes on a class or collective basis, or whether the Federal Arbitration Act favoring arbitration controls. Conservative Judge Neil Gorsuch of the Tenth Circuit has recently been sworn in as a Justice of the United States Supreme Court and will take the seat of Justice Scalia, who passed away a year ago. It remains to be seen how the Court will rule on this very important employment law issue.

One of the most controversial issues in employment law these days involves the position of the National Labor Relations Board (“NLRB” or “Board”) that an employer violates the National Labor Relations Act (“NLRA”) when it requires employees to pursue any dispute they have with their employer on an individual, rather than on a class or collective action, basis with other employees. It is a position that has been adopted by two circuit courts and rejected by three—a conflict that suggests that the issue is ripe for U.S. Supreme Court review.

The NLRB has contended that when an employer requires employees to sign an agreement precluding them from bringing or joining a concerted legal claim regarding wages, hours, and other terms and conditions of employment, the employer deprives them of rights guaranteed under Section 7 of the NLRA to engage in concerted activities for employees’ mutual aid or protection. That right, the proponents argue, includes the right to join together in class and collective litigation to pursue workplace grievances in court or in arbitration.

In making that argument, the NLRB appears to be neglecting the second part of Section 7 (added to the NLRA by the 1947 Taft-Hartley Amendments), which guarantees to employees an equal right to refrain from engaging in concerted activities for their mutual aid and protection. It would seem to follow that, if they have the right to refrain from engaging in concerted activities, employees could waive their right to participate in class and collective actions.

While the NLRB’s argument appears flawed, the Seventh and Ninth Circuits have agreed with the NLRB that where such agreements are a condition of employment, they deprived employees of their rights to engage in “concerted activities” for their mutual aid and benefit guaranteed to them under Section 7 of the NLRA. These decisions conflict with earlier decisions of the Fifth, Eighth, and, most recently, Second Circuits rejecting the Board’s position.

At least one dissenting judge, Sandra Ikuta of the Ninth Circuit, stated that the majority decision was “breathtaking in its scope and in its error.” She noted that the majority decision was directly contrary to Supreme Court Federal Arbitration Act (“FAA”) precedent and that the individual arbitration mandate should have been enforced according to its terms under the FAA. The Ninth Circuit, it should be noted, previously held that an arbitration agreement with a class and collective action waiver did not violate the NLRA when the employee could opt out of the individual arbitration agreement but chose not to do so.

In those jurisdictions covered by the Seventh and Ninth Circuits, class and collective action waivers are likely unenforceable to the extent they are a condition of employment. In jurisdictions covered by the Second, Fifth, and Eighth Circuits, class and collective action waivers would appear to be enforceable. Other circuits have yet to rule on the issue, leaving district courts within those circuits to weigh conflicting arguments on both sides.

The Supreme Court may well step in to resolve the conflict between the circuits on this important issue. Petitions for certiorari have been filed recently in four different cases. The issue before the Supreme Court in all four of these cases is whether the NLRA prohibits an employer from requiring employees to agree to waive their rights to arbitrate class and collective disputes or whether the FAA, which favors arbitration, controls; in short, whether class and collective waivers in arbitration agreements are enforceable. As there is clearly a conflict among the circuits, it would appear that there is a significant chance that the Supreme Court will grant certiorari and resolve this conflict.

As a practical matter, U.S. Supreme Court Justice Anthony Scalia’s death earlier this year, his still-unfilled seat, and the upcoming presidential election may play significant roles in resolving this issue if the Supreme Court grants certiorari. As many will recall, it was Justice Scalia who wrote the majority opinions in AT&T Mobility v. Concepcion and American Express v. Italian Colors. In those cases, the Supreme Court upheld class action waivers, albeit in the commercial setting, not in an employment, setting. With Justice Scalia’s seat unfilled and only eight current justices, a four-to-four split at the Supreme Court would leave all of the circuit decisions standing, including both the Seventh and Ninth Circuit decisions in favor of the NLRB’s position, as well as the Second, Fifth, and Eighth Circuit decisions rejecting the NLRB’s position. Depending upon which party wins the upcoming presidential elections, the makeup of the Supreme Court justices (and of the five-member NLRB) may play a significant role in the outcome of this issue.

A version of this article originally appeared in the Take 5 newsletter Five Critical Wage and Hour Issues Impacting Employers.”

Evan J. Spelfogel
Evan J. Spelfogel

On March 31, 2016, New York Governor Andrew Cuomo signed into law a bill increasing the statewide minimum wage on a phased in basis over the next five years, to $15.00 per hour in some, but not all New York counties (“Minimum Wage Law”).  This is in addition to a bill enacted on December 31, 2015, that increased the subminimum wage for tipped employees in the hospitality industry from $5 to $7.50 per hour.

The Minimum Wage Law now provides for a tiered increase from the current statewide rate of $9.00, to $11, $13, and $15 per hour effective December 31, 2016, 2017, and 2018 respectively, for work performed in New York City for employers with more than 10 employees.  A slightly longer phase in period, running to December 2019, is provided for New York City employers with 10 or fewer employees and for Westchester, Nassau, and Suffolk counties. For these counties, the minimum wage is set to increase to $10.00 per hour by December 31, 2016, and then $1 every year until reaching $15.00 per hour on December 31, 2021.

For work performed in other counties throughout NY State, the minimum wage increase will be more gradual, increasing to $9.70 per hour on December 31, 2016, followed by a 70 cent increase every year until December 31, 2020, when the minimum wage will reach $12.50 per hour.  After December 31, 2020, the minimum wage in these counties will continue to increase on an indexed schedule to be set by the Director of the Division of Budget (“DOB”) in consultation with the Commissioner of Labor.

On September 11, 2015 the U.S. Court of Appeals for the Eleventh Circuit announced that it joined the Second Circuit in rejecting the U.S. Department of Labor’s (“DOL”) rigid six part test for determining whether unpaid interns were employees and should have been paid minimum wages and overtime for their services. Schumann and Abraham et al v Collier Anesthesia, P.A., Wolford College, LLC, Thomas Cook and Lynda Waterhouse, No. 14-13169, 2015 BL 294459 (11th Cir. Sept. 11, 2015), citing to Glatt v. Fox Searchlight Pictures, Inc., Nos. 13-4478-cv, 13-4481-cv (2d Cir. July 2, 2015)

As did the Second Circuit, the Eleventh Circuit found the factors considered by the DOL in its “guidance” on interns and trainees and the DOL’s  interpretation of the U.S. Supreme Court’s 1947 holding in Walling v. Portland Terminal Co., 330 U.S. 148 (1947) to be “useful” but refused to defer to that guidance.  Noting that the DOL has no special expertise in interpreting court decisions, the Eleventh Circuit instead followed the Second Circuit in holding that seven non-exclusive factors should be considered to determine whether the intern or the putative employer was the primary beneficiary of the services being rendered:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including clinical and other hands‐on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

The Eleventh Circuit expressly stated that in applying these factors to determine whether the intern or the putative employer was the primary beneficiary of the interns’ services, no one factor is determinative and every factor need not point in the same direction.  Further, courts may consider other relevant evidence beyond the specified factors in appropriate cases.

Because the District Court had applied the old DOL six factor test in determining that the interns here were not employees, the Court of Appeals vacated and remanded the case back to the District Court to apply the correct test.  In doing so, the Appeals Court went to great lengths to discuss each of the seven factors as applied to the facts at hand and to describe the road map that the District Court should follow, while carefully stating: “we do not take a position at this time regarding whether the students in this case were “employees” for purposes of the FLSA.”

Wage and Hour Image 3

On August 7, 2015 the Second Circuit held that parties cannot enter into private settlements of Fair Labor Standards Act (“FLSA” or the “Act”) claims without  the approval of either the district court or the Department of Labor. Cheeks v. Freeport Pancake House, Inc., No. 14-299 (2nd Cir. 2015).

Although other circuits are split on the issue of whether pre-suit agreements to settle FLSA claims are enforceable, this is the first appellate decision to address the issue of whether judicial approval is required to terminate an FLSA lawsuit once it has been filed. See Lynn’s Food Stores, Inc. v. US., 679 F. 2d 1350 (11th Cir. 1982); Martin v. Spring Break’83 Productions, LLC, 688 F. 3d 247 (5th Cir. 2012). Despite holding that district courts must approve the settlement, the court expressed no opinion regarding “what the district court must consider in deciding whether to approve the putative settlement.”

Unlike most causes of action, which may be settled merely by filing a stipulation of dismissal, courts apply extra scrutiny to FLSA settlements to prevent workers from waiving the protections of the Act. To ensure workers maintain their rights under the FLSA, courts will only enforce FLSA settlements if the settlement amount is for the full amount claimed, or if less, there is “a bona fide dispute between the parties” regarding the amount owed. See Brooklyn Savings Bank v. O’Neil, 324 13 U.S. 697 (1945) and D.A. Schulte, Inc. v. Gangi, 328 U.S. 108 (1946).

The court rested its holding on the argument that judicial approval was necessary to ensure that private settlements furthered the policy goals underlying the Act. The concern is that plaintiffs may agree to compromise settlement amounts that do not achieve the goal of deterring employers from violating the Act.

Plaintiffs in need of immediate cash may value an immediate settlement at a discounted amount over the potential for a larger judgment at some future date. Although this resolution may be agreeable to both parties, it does not achieve the goal of preventing employers from deriving a competitive advantage by violating the Act.

In dicta, the decision went on to add that “to prevent abuses by unscrupulous employers, and remedy the disparate bargaining power between employers and employees” courts must scrutinize settlement agreements to ensure “employee protections, even where the employees are represented by counsel.”

Other than seeking court approval of all settlement agreements resolving cases with FLSA claims, it remains to be seen how this decision will be used in litigation. Employers should pay particular attention as to whether judges reserve their role to ensuring that the settlement resolves a bona fide dispute, or whether they instead use their power to second guess plaintiff’s counsel and demand more favorable settlement terms.

A question that remains unanswered is whether the federal courts will defer to a decision of an arbitrator in resolving FLSA claims.

By Evan J. Spelfogel

On Feb. 12, 2014 President Obama signed Executive Order 13,658 to raise the minimum wage for workers on federal service and construction contracts from the current $7.25 to $10.10 per hour.  On June 12, 2014 the United States Department of Labor announced proposed implementation of the Executive Order with respect to all new and renegotiated federal contracts starting Jan. 1, 2015.

This increased minimum wage would apply to the approximately 200,000 employees working for government contractors and subcontractors, and is another salvo in the President’s push for an increase in the federal minimum wage in the private sector nationwide. 

The Office of Management and Budget is reviewing the proposed rule which is expected to be published in the Federal Register in the near future.  Once published the public will have 30 days to submit comments. The final version of the rule is scheduled to be issued by October 1.

The proposed rule would apply to all construction contracts covered by the Davis-Bacon Act; service contracts covered by the Service Contract Act; concessions contracts to furnish food and lodging on federal property; and contracts to provide child care and dry cleaning, in federal buildings.  It would require government agencies to ensure that all contractors and subcontractors with whom they do business pay their employees at least $10.10 per hour starting in 2015. The amount of the minimum wage would be adjusted each year to account for inflation. 

The proposed rule would also eliminate under government contracts and subcontracts the right of employers to pay workers with disabilities who are in specialized certificate programs, less than other workers.

The proposed rule also contains special provisions for tipped employees working on federal contracts and subcontracts.  Beginning in January 2015, tipped workers would have to be paid a minimum hourly wage of $4.90 (in addition to the amount they earn in tips)…more than double the current federal tipped minimum wage of $2.13 per hour. Starting in 2016, the new $4.90 minimum for tipped workers would increase by 95 cents per year until it equals 70 percent of the minimum wage for non-tipped workers under government contracts.

In addition to all of the usual penalties including back pay, liquidated damages and attorneys’ fees, employers in violation of federal contract requirements also face debarment from being able to perform federal contracts.

Simultaneously with the announcement of the proposed rule, the Labor Department issued guidance to federal agencies on steps they should take now to begin implementing the increased minimum wage before the final rule is issued, so workers on federal contracts and sub contracts would be able to receive the anticipated wage increases as soon as possible after Jan. 1, 2015.

More information about the proposed rule and the joint guidance to federal agencies is available at http://www.dol.gov/whd/flsa/nprm-eo13658/.