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In November 2017, four convenience store franchisees brought suit in federal court against 7-Eleven, Inc., alleging that they and all other franchisees were employees of 7-Eleven. The case was filed in the United States District Court for the Central District of California, entitled Haitayan, et al. v. 7-Eleven, Inc., case no. CV 17-7454-JFW (JPRx).

In alleging that they were 7-Eleven’s employees, the franchisees brought claims for violation of the federal Fair Labor Standards Act (“FLSA”) and the California Labor Code, alleging overtime and expense reimbursement violations. The trial court granted judgment in 7-Eleven’s favor, concluding that 7-Eleven was not the four franchisees’ employer under California law or federal law.

The court noted that the franchisees’ “basic legal theory underlying [their] claims [wa]s that 7-Eleven’s restrictive policies and practices created an employment relationship between the parties.” The court concluded that because the franchisees could not establish an employment relationship, each of their claims failed.

For example, while 7-Eleven required the franchisees to keep their stores open 24 hours per day, 364 days per year, the court was persuaded by the fact that the franchisees themselves were not “actually required to work at the stores a particular number of hours or on particular days” – they could hire employees to meet these requirements. And while the franchisees argued that 7-Eleven controls the payment of all wages and instructs franchisee on pay practices, performance appraisals, and disciplinary actions, including worker terminations, that did not persuade the court because “the fact that a franchisor pays a franchisees’ employees’ wages does not create an employment relationship,” and the franchisees admitted that they have unfettered discretion to hire and fire employees and set wages.

Because the franchise agreements explicitly provided that franchisees “control the manner and means of the operation” of their stores and “exercise complete control over and all responsibility for all labor relations and the conduct of [franchisees’] agents and employees, including the day-to-day operations” of franchisees’ stores and employees, the court concluded that such minimal control was insufficient to make franchisees common law employees of 7-Eleven.

The federal court’s decision is a welcome one for franchisors that have sound franchise agreements and practices in place. It is certainly possible that the court would have reached a different conclusion had 7-Eleven’s franchise agreement or practices provided for 7-Eleven to have a greater right to exercise control over franchisees.  In light of this decision, franchisors should review their agreements and practices to ensure they do not have a right to control the wages, hours, or working conditions of franchisees.

Depending on the jurisdictions within which they operate, certain employers and their counsel will soon see a significant change in early mandatory discovery requirements in individual wage-hour cases brought under the Fair Labor Standards Act (“FLSA”).

A new set of initial discovery protocols recently published by the Federal Judicial Center (“FJC”), entitled Initial Discovery Protocols For Fair Labor Standards Act Cases Not Pleaded As Collective Actions (“FLSA Protocols”), available here, expands a party’s initial disclosure requirements to include additional documents and information relevant to FLSA cases. These Protocols apply, however, only to FLSA lawsuits that have been filed in participating courts that have implemented the Protocols by local rule or by standing, general, or individual case order. (At least one court has already adopted the Initial FLSA Protocols — the Southern District of Texas, Houston Division.) Also, as the title of this initiative makes clear, these protocols do not apply to FLSA actions styled as collective actions.

The goal of the FLSA Protocols in requiring an up-front exchange of information is to help frame issues to be resolved in the case, minimize potential opportunities for gamesmanship, and enable the court and parties to plan for more efficient and targeted discovery.  To that end, the Protocols focus on the type of information that is most likely to be useful in narrowing the issues in such cases.

Specifically, both parties must produce materials such as employment agreements, compensation agreements, and offer letters; documents recording the plaintiff’s wages and/or hours worked; written complaints from the plaintiff regarding the wages or overtime and any response; and documents showing the defendant’s good faith or willfulness.  The employer must also produce its wage and hour-related policies, procedures, or guidelines, as well as relevant portions of any employee handbook.  Additionally, both parties must identify the plaintiff’s start and end dates of employment, job title and duties, supervisors and managers, and any individuals having knowledge of the relevant facts.  The relevant time period for the FLSA Protocols mirrors the FLSA’s statute of limitations, which is two years before the date the Complaint was filed, or three years if the plaintiff’s complaint alleges a willful violation.

If adopted by a court, the FLSA Protocols will supersede the initial disclosure requirements set forth in Rule 26(a)(1) of the Federal Rules of Civil Procedure (“FRCP”); however, they will not supplant parties’ subsequent discovery obligations under the FRCP.   To address potential concerns by either party regarding the confidentiality of any documents or information to be exchanged, the FLSA Protocols include a model interim protective order allowing a party to designate documents or information as “confidential,” limiting their use to the particular case.

The FLSA Protocols are the second set of case-specific discovery protocols to be developed and implemented in the federal courts.  The FJC published the first set of protocols, the Initial Discovery Protocols for Employment Cases Alleging Adverse Action (“Employment Protocols”), in November 2011, and they have since been adopted by over 50 judges and on a district-wide basis in multiple jurisdictions around the country.

According to a FJC report issued in October 2015, cases filed in courts that adopted the Employment Protocols had less motion practice (both discovery-related and dispositive motions) than comparison cases, and they were more likely to settle. In a follow-up memorandum published a year later, the FJC found that the Employment Protocols had been more widely accepted by the federal judiciary than expected, despite the fact they specifically carve out from their application specific employment-related cases such as those arising under the FLSA and Family Medical Leave Act.

Like the Employment Protocols, the FLSA Protocols may very well become a helpful tool for employers being sued in FLSA litigations because they require early disclosure of relevant information that will help the parties to a litigation assess the strength of the plaintiff’s claims and employer’s defenses quickly and allow them to make informed decisions as to best strategies, including whether potential early resolution is appropriate.  Query, however, whether such potential early disclosure could alternatively be achieved by requiring federal district courts to maintain more rigorous case management plan deadlines.

Whether the FLSA Protocols will ultimately result in greater efficiency in the discovery process or an increase in early case resolution remains to be seen.  The FJC has announced that it will monitor their use, including by evaluating cases conducted in accordance with the Protocols’ early discovery requirements. Because many plaintiff-employees and their counsel file lawsuits as a collective action, rather than on an individual basis, as a matter of course, it is unclear how big of an impact the FLSA Protocols will actually have on non-collective FLSA litigation.  In fact, it is possible the FLSA Protocols could actually incentivize plaintiff’s counsel to file actions on a collective basis, rather than as individual plaintiff lawsuits, in order to avoid the additional work at the outset of a case.  If so, then expanding the Protocols to include collective actions would likely have a more resounding impact.  Should the Protocols find success with the participating federal judiciary, then perhaps they will be expanded, in both jurisdiction and scope, to include collective actions.  Only time will tell, and we will be sure to keep you apprised of all developments with this new initiative.

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.

Our colleagues, Susan Gross Sholinsky, Dean L. Silverberg, Jeffrey M. Landes, Jeffrey H. Ruzal, Nancy L. Gunzenhauser, and Marc-Joseph Gansah have written an Act Now Advisory that will be of interest to many of our readers: “New York State Department of Labor Implements New Salary Basis Thresholds for Exempt Employees.”

Following is an excerpt:

The New York State Department of Labor (“NYSDOL”) has adopted its previously proposed amendments to the state’s minimum wage orders to increase the salary basis threshold for executive and administrative employees (“Amendments”). The final version of the Amendments contains no changes from the proposals set forth by the NYSDOL on October 19, 2016. The Amendments become effective in only three days—on December 31, 2016.

While the status of the new salary basis threshold for exempt employees pursuant to the Fair Labor Standards Act (“FLSA”) is still unclear following the nationwide preliminary injunction enjoining the U.S. Department of Labor (“USDOL”) from implementing its new regulations,this state-wide change requires immediate action for employers that did not increase exempt employees’ salaries or convert employees to non-exempt positions in light of the proposed federal overtime rule.

Read the full post here.

Berger v. National Collegiate Athletic Association,
No. 14-cv-1710 (7th Cir. Dec. 5, 2016)

Colleges and universities, at least in the jurisdiction of the Seventh Circuit Court of Appeals, surely breathed a collective sigh of relief earlier this month when the Court held that student athletes were not employees under the Fair Labor Standards Act (“FLSA”) and thus were not entitled to minimum wage.

Former student athletes at the University of Pennsylvania sued Penn, the National Collegiate Athletic Association (“NCAA”) and over 120 other colleges and universities that have Division I (the division that covers the largest schools) athletic programs, arguing that student athletes were employees entitled to the minimum wage. Interestingly, the court declined to use any of the multi-factor tests to resolve the issue because those tests would not capture the true nature of the relationship.

Instead, the court relied on the U.S. Department of Labor’s Field Operations Handbook, which indicates that students who participate in extracurricular activities are not employees of the school. In addition, the court took a common sense approach and recognized that college athletes participate in these programs for reasons wholly unrelated to immediate compensation and without any expectation of earning an income. Viewing student athletes as employees also would undermine what the court recognized as a “revered tradition of amateurism in college sports.”

Thus, the Seventh Circuit has added one more nail to the coffin of student athletes as employees. While some may argue that large colleges and universities should share some of the significant income they receive from football and other well attended games with the student athletes, that could signal a slide down a slippery slope. If student athletes were considered employees, what about student actors, orchestra members and any other students involved in extracurricular activities where performances mandate an admission fee? And in the last analysis, students receive a variety of non-economic benefits that distinguish these activities from “employment” within the meaning of the FLSA.

Over the past year, there has been an increased discussion of Fair Labor Standards Act (“FLSA”) requirements for tipped employees. The courts have focused on a number of issues related to tipped employees, including addressing who can participate in tip pools and whether certain deductions may be made from tips. While the FLSA requires employers to pay a minimum wage of $7.25 per hour in most cases, Section 203(m) of the FLSA provides that employers may take a “tip credit” and pay as little as $2.13 per hour to employees who customarily and regularly receive tips, so long as two criteria are satisfied:

  • the employee’s wages and tips are at least equal to the minimum wage, and
  • all tips “received” by a tipped employee are actually retained by the employee or added into a tip pool that aggregates the tips of a group of tipped employees.

Notably, 29 CFR § 531.55 states that a “compulsory charge for service . . . imposed on a customer by an employer’s establishment, is not a tip . . . .” However, some states (such as New York) have their own requirements for determining whether a service charge will be considered a “tip.”

Who Can Be Treated as a Tipped Employee?

When a tip pool is covered by Section 203(m) of the FLSA, an employer may not divert tips from tipped employees by including “non-customarily tipped employees” in the tip pools. But whether an employee customarily (and regularly) receives tips may be unclear.

In Montano v. Montrose Restaurant, the U.S. Court of Appeals for the Fifth Circuit considered a tip pool in which the employer included a “coffeeman,” and the parties submitted conflicting evidence regarding the coffeeman’s duties. The Fifth Circuit concluded that an employee can be part of a tip pool if it can be expected that the customer intended the employee to receive a portion of the tip. Satisfying that requirement depends on such factors as whether the employee had more than a de minimis interaction with the customers who leave the undesignated tips and whether the employee is engaging in customer service functions.

In Schaefer v. Walker Bros. Enterprises, the Seventh Circuit evaluated a plaintiff’s contention that he and other employees at his restaurant (who primarily worked in a tipped capacity) had to be paid the full minimum wage during any time spent performing non-tipped work. The Seventh Circuit noted that the DOL’s Field Operations Handbook states that an employer may pay the tip-credit rate for time that tipped employees spend on non-tipped duties “related to” their tipped work. According to the Seventh Circuit, making coffee, cleaning tables, and “ensuring that hot cocoa is ready to serve” and that “strawberries are spread on the waffles” are activities related to a tipped server’s work. The Seventh Circuit characterized other duties, however, such as wiping down burners and woodwork and dusting picture frames, as “problematic” because they did not seem to be “closely related to tipped duties.” But the time spent on those duties was “negligible” and therefore did not require the restaurants to pay the normal minimum wage rather than the tip-credit rate for those minutes.

Can Credit Card Fees Be Deducted from “All Tips”?

In Steele v. Leasing Enterprises, Ltd., the Fifth Circuit considered whether an employee is receiving “all tips” when an employer deducts the costs and fees associated with collecting tips that are paid through a customer’s credit card.

To offset costs associated with credit card tips, the defendant retained 3.25 percent of any tips paid by credit card. According to the defendant, the costs included not only fees charged by the card issuer, but also the cost of cash deliveries made by an armored vehicle three times per week to ensure that the employees could be paid their tips on a daily basis (as the employees had requested).

Based on prior authority from the Sixth Circuit and a DOL opinion letter, the Fifth Circuit agreed that the defendant could offset credit card tips by the amount of the credit card issuer fees and still satisfy the requirements of Section 203(m). One week later, the Southern District of Ohio reached a similar conclusion in Craig v. Landry’s, Inc., ruling that “controlling precedent specifically permits” the deduction of credit card processing fees as long as the amount of the deduction “reasonably approximates the charge incurred by the employer.”

What Other Fees or Costs Can Be Deducted from “All Tips”?

After approving the deduction of credit card issuer fees from the gross tips in Steele, the Fifth Circuit turned to the question of whether an employer violates Section 203(m)’s requirements if the employer deducts costs other than direct fees charged by the credit card issuers. The defendant argued that employers could deduct the additional expenditures associated with paying credit card tips and still maintain the tip credit. Specifically, the defendant argued that the additional costs that it was incurring in arranging for the payment of tips paid via credit card, such as the cost of the armored car deliveries to its restaurants, could be deducted from the gross tips.

The Fifth Circuit concluded that “an employer only has a legal right to deduct those costs that are required to make such a collection.” While the defendant had no choice but to pay to credit card issuer fees, the costs relating to its thrice-weekly armored car deliveries were discretionary costs resulting from internal business decisions by the defendant. Therefore, deducting those amounts from employees’ tips was a violation of Section 203(m).

It is worth noting the Eastern District of New York added an interesting twist to this principle in Widjaja v. Kang Yue USA Corp. The court had previously ruled that the defendant violated the minimum wage as a result of, among other things, improperly withholding 11.5 percent of credit card tips. In a late-2015 ruling on damages, the court found that the defendant was liable for the difference between the minimum wage and the hourly wage that it actually paid its tipped employees. Moreover, the court in Widjaja held that the wage deficiency could not be offset by the tips actually received by the tipped employees because those tips were not an hourly wage. Consequently, because it improperly applied the tip-credit rule, the employer received no credit against the minimum wage for the tips actually received by its tipped employees.

Is There a Cause of Action for Withheld Tips If the Employer Does Not Take a Tip Credit?

Several years ago, the DOL revised 29 C.F.R. § 531.52 to provide that all tips are the property of the employee and, thus, must be passed along to the tipped employee or a pool of tipped employees regardless of whether the employer has taken a tip credit under Section 203(m). Because the FLSA, on its face, does not specifically prohibit or address wage deductions that do not result in minimum-wage violations, there has been substantial controversy regarding the DOL’s authority to issue this regulation.

Earlier this year, in Oregon Rest. & Lodging Ass’n v. Perez, the Ninth Circuit noted that Section 203(m) of the FLSA is silent as to employers that do not take a tip credit. Therefore, the Ninth Circuit concluded that the DOL has the authority to regulate “tip pooling” practices even if employers do not take tip credits. Conversely, this past summer, federal courts in Florida and Georgia arguably joined with the position taken by the Fourth Circuit and courts in Maryland, New York, and Utah that Section 203(m) of the FLSA does not create a cause of action for improperly withheld tips unless the employer is taking a tip credit.

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

Employment Law This Week – Epstein Becker Green’s new video program – has a story this week on off-the-clock security screenings, which are under scrutiny around the country. Two federal class actions challenging them have reached different outcomes.

Bath & Body Works recently agreed to settle a suit in California over unpaid overtime and off-the-clock security inspections. But a federal judge in the same state dismissed a similar class action against Apple in which retail workers claimed that they should be compensated for time spent having their bags checked. The judge concluded that the employees were not performing job duties and could avoid the screenings by not bringing a bag or cell phone to work.

See below to view the episode and read our recent blog post “Have We Now Seen the Last of ‘Bag Check’ Class Actions?”

 

Bag Security CheckIn recent years, employers across the country have faced a great many class action and collective action lawsuits in which employees have alleged they are entitled to be paid for the time spent in security screenings before they leave their employers’ premises – but after they have already clocked out for the day.  Retailers have been particularly susceptible to these claims as many require employees to undergo “bag checks” before they depart their stores to ensure that employees are not attempting to carry merchandise out in their bags or coats.

In late 2014, in Integrity Staffing Solutions, Inc. v. Busk, the United States Supreme Court held that time spent in security screenings was not compensable under the federal Fair Labor Standards Act (“FLSA”).

While Busk would seem to leave few circumstances under which employees could bring viable “bag check” claims under the FLSA, it did not put an end to the claims.  Among other things, the compensability of such time under California state law, which defines compensable time differently than the FLSA, remained unaddressed.  Indeed, late last week, Bath & Body Works Inc. reportedly agreed to pay $2.25 million to settle a putative class action asserting claims under the California Labor Code for unpaid work hours that included claims that employees were not paid for time spent in security screenings.  The critical difference between the FLSA and California laws is that California law requires that employees be paid for all time when they are “subject to the control of the employer” or for all time that they are “suffered or permitted to work.” And, not surprisingly, plaintiffs’ lawyers in California have argued that employees are “subject to the control of the employer” and “suffered” to work while they wait for and participate in security screenings.

In many, if not most, security screenings, employees who do not have a bag or a coat are not subject to a screening. They simply leave without being checked.  Under those circumstances, we have always argued that time spent in security screenings is not compensable precisely because the employee can avoid the screening altogether by not bringing a bag or coat.

Earlier this week, in what appears to be the first published opinion on the issue, District Court Judge William Alsup reached that very conclusion.  In Frlekin v. Apple Inc., the Court dismissed a class-action lawsuit brought by Apple store employees seeking compensation under California law for time spent waiting for their bags to be searched before they left the stores where they worked.  Granting summary judgment to Apple, the Court concluded that the time was not “hours worked” because the searches were peripheral to the employees’ job duties and could be avoided if the employees chose not to bring bags to work.

The history of Frlekin largely describes the development of the law on “bag checks” this decade. The Frlekin plaintiffs initially pursued their “bag check” claims under the FLSA and various states laws, including California law.  The FLSA and non-California claims were dismissed following the Supreme Court’s decision in Busk, leaving just the California claims.

On those California claims, the District Court explained that, to prove that they were subject to the control of Apple during the bag checks, the plaintiffs had to show that:

  • Apple restrained their actions during the bag checks; and
  • the plaintiffs could not choose to avoid the activity.

The District Court found that the first element was met because, once a worker wished to leave with a bag, the worker was required to stand in line for the security screening. However, the District Court found that the second element was not met because a plaintiff could choose not to bring bags to work and thereby avoid the “bag check” altogether.  Distinguishing cases cited by the plaintiffs, the District Court further held that “employee choice” is a dispositive element in determining whether an employee is subject to the control of the employer.

The District Court then addressed whether the employees were “suffered or permitted to work” during the time they were awaiting security screenings.  The Court stated that liability arises when an employer knows that someone is performing work for its benefit, and allows that work to proceed.  Therefore, “the touchstone is the failure to prevent work.”

On this issue, the District Court then held that time spent waiting for security screenings was not “work” because it had no relationship to plaintiffs’ job responsibilities; the plaintiffs merely waited passively as managers or security guards conducted the searches.  Accordingly, time spent waiting for bag checks was not time during which the plaintiffs were “suffered or permitted to work.”

In light of its conclusions that the time spent in security screenings was not time during which the plaintiffs were “subject to the control” of Apple or “suffered or permitted to work,” the District Court held that the time was not compensable under California law and granted summary judgment to Apple.

While the District Court’s ruling is, of course, a significant victory for Apple and for employers in California, it does not necessarily spell the end of class actions in California alleging that employees are entitled to compensation for time spent in security screenings.

First, the Frlekin plaintiffs are likely to appeal this decision.  It would be surprising if they did not.

Second, the decision is not binding on other courts, and in particular is not binding on California state courts.

Third, the decision will not be helpful to those employers who require all employees to undergo screenings regardless of whether they brought a bag or a coat.

For these reasons, it is too early to declare “bag check” lawsuits dead.

But, based on this decision, plaintiffs’ lawyers may think twice about bringing “bag check” class actions, and employers that have security screenings similar to Apple’s can take comfort that the first court to address the practice in a published decision has found that time spent in “bag checks” is not compensable time.

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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.

Our colleague Jeffrey H. Ruzal recently wrote an article entitled “Offset as Defense to FLSA Suit May Mitigate Unpaid Wage Claims,” which appears in the June 2014 issue of Hospitality Law.

Following is an excerpt:

A federal district court in Michigan recently preserved for trial the question of whether a defendant employer may mitigate its back wage liability by offsetting paid break time, which would effectively extinguish plaintiff employees’ claims under the Fair Labor Standards Act.

In Hayes, et al., v. Greektown Casino, LLC, et al., No. 12-1552 (E.D. Mich. 03/31/14), a group of current and former security officers who were employed by Greektown Casino alleged that their employer violated the FLSA by failing to compensate them for all hours worked.

Read the full article here.

Reprinted with permission from Hospitality Law. Copyright 2014 by LRP Publications. Palm Beach Gardens, FL 33418. All rights reserved. For details on this or other related products, visit www.shoplrp.com/hospitality.html or call toll free 1-800-341-7874.