Employment Law This Week

Featured on Employment Law This Week:  The Ninth Circuit held that certain auto service advisors were not exempt because their position is not specifically listed in the FLSA auto dealership exemption.

The 9th relied on the principle that such exemptions should be interpreted narrowly. In a 5-4 decision last week, the Supreme Court found no “textual indication” in the FLSA for narrow construction. Applying a “fair interpretation” standard instead, the Court ruled that the exemption applies to service advisors because of the nature of the work.

Watch the segment below and read our recent post.

Featured on Employment Law This Week:  A California federal judge has ruled that a former GrubHub delivery driver was an independent contractor, not an employee.

The judge found that the company did not have the required control over its drivers for the plaintiff to establish that he is an employee. This decision comes as companies like Uber and Lyft are also facing lawsuits that accuse them of misclassifying employees as independent contractors. Carlos Becerra, from Epstein Becker Green, has more.

Watch the segment below and read our recent post.

Featured on Employment Law This Week: The California Supreme Court has clarified the state’s ambiguous “day of rest” provisions.

The provisions state that, with certain exceptions, employers will not cause “employees to work more than six days in seven.” The state’s high court addressed three questions about this law that had been certified by the U.S. Court of Appeals for the Ninth Circuit. The court determined that employees are entitled to one day of rest per workweek. So, every Sunday marks the beginning of a new seven-day period. Additionally, the court clarified that employees who work six hours or less during each day of the week are not entitled to a day of rest and that employees can choose not to take the day of rest if they are fully aware of the entitlement.

Watch the segment below, with commentary from our colleague Kevin Sullivan, and read our recent post.

Featured on Employment Law This Week – “For Want of a Comma.” It seems that punctuation was a key factor in a recent class action suit from a group of dairy delivery drivers in Maine.

The U.S. Court of Appeals for the First Circuit ruled that an exemption in the states overtime law is ambiguous enough to support the drivers’ overtime claim. The drivers argued that the exemption applies only to workers who pack perishable food products for distribution—and not those who actually distribute the products. On appeal, the First Circuit agreed that a missing “Oxford” comma makes the drivers’ reading of the exemption a reasonable one.

Watch the segment below and see our recent post.

Featured on Employment Law This Week – California health care workers can still waive some breaks.

In February 2015, a California appeals court invalidated an order from the Industrial Welfare Commission (IWC) that allowed health care workers to waive certain meal breaks. The court found the order, which allowed the workers to miss one of their two meal periods when working over eight hours, was in direct conflict with the California Labor Code. The state legislature then passed a new law giving the IWC authority to craft exceptions going forward for health care workers. This month, the appeals court concluded that its 2015 decision was based on a misreading of the statute and that even waivers occurring before the new law are valid.

Watch the segment below and see our recent post on this topic.

Featured on Employment Law This Week: The U.S. Supreme Court takes on class action waivers.

In 2012, the National Labor Relations Board (NLRB) ruled that class action waivers in arbitration agreements violate employees’ rights under the National Labor Relations Act (NLRA). The U.S. Court of Appeals for the Second, Fifth, and Eighth Circuits disagreed, finding that these waivers do not violate the NLRA and are enforceable under the Federal Arbitration Act. More recently, the Seventh and Ninth Circuits sided with the NLRB on the issue. The Supreme Court will consider three cases in order to resolve this split, but any resolution could depend on the timing of the hearing. If the case is heard this term, before President Trump’s nominee for the vacancy on the Supreme Court is confirmed, it could end in a 4-4 tie. That would leave the law as it stands, and the split would continue.

Watch the segment below and see our recent blog post by Michael Kun.

Featured on Employment Law This Week:  Another Department of Labor action currently in limbo is the new federal salary thresholds for the overtime exemption. But New York went ahead with its own increased thresholds, sealing the deal at the end of 2016.

In New York City, the threshold is now $825 a week, or $42,950 annually, for an executive or administrative worker at a company with 11 or more employees. The salary thresholds will increase each year, topping out at $1,125 per week in New York City and in Nassau, Suffolk, and Westchester counties.

Watch the segment below and see our colleagues’ advisory.

The new episode of Employment Law This Week offers a year-end roundup of the biggest employment, workforce, and management issues in 2016:

  • Impact of the Defend Trade Secrets Act
  • States Called to Ban Non-Compete Agreements
  • Paid Sick Leave Laws Expand
  • Transgender Employment Law
  • Uncertainty Over the DOL’s Overtime Rule and Salary Thresholds
  • NLRB Addresses Joint Employment
  • NLRB Rules on Union Organizing

Watch the episode below and read EBG’s Take 5 newsletter, “Top Five Employment, Labor & Workforce Management Issues of 2016.”

In a “Tip of the Week” segment on Employment Law This Week, Will Hansen, Senior Vice President of Retirement Policy for The ERISA Industry Committee (ERIC), offers some advice on preparing a benefits program in advance of the Department of Labor’s overtime rule:

“The Department of Labor’s Final Rule increasing the overtime exemption threshold to $47,476 dollars will not only have an impact on the wages an employee receives, but also the benefits that they receive. In advance of these changes taking effect on December 1st, it’s important for companies to review their benefit programs. First, they should determine whether there will be any increase or decrease in the overtime wages provided, as well as an increase or decrease in salaried over hourly employees. Next, they should examine the financial impact any change in their workforce will have on the company. . . . Lastly, the company should look at other benefits, such as paid sick leave or commuter transit benefits to see if there will be a change in participation which would have an impact on costs.”

View the segment below and see Michael Kun’s recent post on the overtime exemption rule.

Featured on Employment Law This Week: Employers in the city of Chicago will soon be required to offer up to 40 hours of paid sick leave a year.

The City Council unanimously approved the paid sick leave ordinance, which will apply to all individuals and businesses with at least one employee. Chicago will now join more than two dozen other U.S. cities that require employers to provide paid sick leave. The mayor is expected to sign the ordinance, which is scheduled to go into effect July 1, 2017.

View the episode below or read more about this ordnance in an Epstein Becker Green Act Now Advisory by Julie Badel and Mark M. Trapp.