State Wage and Hour Laws

Our colleagues Jeffrey H. Ruzal, Adriana S. Kosovych, and Judah L. Rosenblatt, attorneys at Epstein Becker Green, co-authored an article in Club Director, titled “Recent Trends in State and Local Wage and Hour Laws.”

Following is an excerpt:

As the U.S. Department of Labor (DOL) appears to have relaxed its employee protective policy-making and enforcement efforts that grew during the Obama administration, increasingly states and localities have enacted their own, often more protective, employee-protective laws, rules and regulations. To ensure full wage and hour compliance, private clubs should consult their HR specialists and employment counsel and be mindful of all state and local requirements in each jurisdiction in which they operate and employ workers. Here are just some of the recent wage and hour requirements that have gained popularity among multiple jurisdictions.

Click here to download the full version in PDF format.

In 2012, we were proud to introduce our free wage and hour app.  Over the years, thousands of clients and potential clients have downloaded the app on their mobile phones and tablets.

For 2018, we are pleased to introduce a brand-new version of the app, available without charge for iPhoneiPad, and Android devices. See our press release here.

Importantly, the 2012 and 2014 versions of the app have been retired.  If you had downloaded them, you will need to download the new version.

The new version of the app includes wage-hour summaries for all 50 states, as well as D.C. and Puerto Rico.  And it includes updates for 2018, including new state minimum wages and tipped employee rates.

Now more than ever, we can say that the app truly makes nationwide wage-hour information available in seconds. At a time when wage-hour litigation and agency investigations are at an all-time high, we believe the app offers an invaluable resource for employers, human resources personnel, and in-house counsel.

Key features of the updated app include:

  • Summaries of wage and hour laws and regulations, including 53 jurisdictions (federal, all 50 states, the District of Columbia, and Puerto Rico)
  • Available without charge for iPhoneiPad, and Android devices
  • Quick access to, and a direct feed of, Epstein Becker Green’s award-winning Wage and Hour Defense Blog, which provides up-to-date commentary on wage and hour developments
  • Social media feeds from Twitter, Facebook, LinkedIn, and YouTube
  • Quick links to Epstein Becker Green’s attorneys and practices – and more!

If you haven’t done so already, we hope you will download the free app soon.  To do so, you can use these links for iPhoneiPad, and Android.

In Tze-Kit Mui v. Massachusetts Port Authority, Massachusetts’ highest court held that Massachusetts law does not require employers to pay departing employees for accrued, unused sick time within the timeframe prescribed for “wages,” as the term is defined by the Massachusetts Wage Act.

In reaching its decision, the Court analyzed the plain meaning of “wages” under the Act and concluded that the legislature did not intend that “wages” would include sick time. The decision removes a significant concern for Massachusetts employers who are strictly liable for treble damages — and can face criminal liability —  for failing to pay wages in a timely manner.

The case involved an employee Massachusetts Port Authority (“Massport”), who retired while disciplinary charges were pending against him.  Massport discharged the plaintiff for cause weeks after his retirement.  Following a grievance procedure, his discharge was overturned by an arbitrator who found that the plaintiff could not have been discharged because he had already retired.

The plaintiff had 2,232 hours of unused sick time at retirement. Since a discharged employee is not eligible for sick pay under Massport’s sick time policy, Massport did not pay the plaintiff for his unused sick time until after the arbitrator’s decision finding that he had retired prior to being discharged.  The payment occurred more than one year after the plaintiff’s retirement.

The plaintiff filed suit, seeking treble damages for alleged violations of the Massachusetts Wage Act. Under the act, an employer must pay wages or salary earned by a departing employee “in full on the following regular pay day.”  A discharged employee must be paid wages or salary earned “in full on the day of his [or her] discharge.”

The plaintiff argued that Massport had violated the act by failing to timely compensate him for his unused sick pay. The plaintiff’s motion for judgment on the pleadings in the Superior Court was granted.  Massport appealed, and the Massachusetts Supreme Judicial Court transferred the case from the Appeals Court.

In evaluating whether sick pay qualifies as wages under Massachusetts law, the Court looked to the plain language of the Act to discern legislative intent. The act defines “wages” to include “any holiday or vacation payments due an employee under an oral or written agreement,” but does not reference sick pay.  The Court declined to read sick pay into the definition where it had not been expressly included by the legislature.

In addition, the Court explained that vacation time is different from sick time. The crucial distinction is that sick time, as defined by Massachusetts law, can only be used if the employee or a family member is ill, whereas vacation time can be used for any reason.  The Court reasoned that, because employees do not have an absolute right to use sick time, Massachusetts law does not require employers to compensate employees for accrued, unused sick time, and employers can adopt “use it or lose it” sick time policies.  Since employers are not required by law compensate employees for unused sick time, the court concluded “such time is clearly not a wage under the act.”

Under its policy, Massport agreed to pay departing employees for accrued, unused sick time as long as the employee had worked at Massport for two years and had not been terminated for cause. The Court characterized this arrangement as a “contingent bonus.”  Commissions are the only contingent compensation considered wages under the act provided that they “ha[ve] been definitely determined and due and ha[ve] become payable to [the] employee.”  The Court declined to extend the definition of “wages” to include other types of contingent compensation.

Finally, the Court concluded that, under the circumstances of the case, it would have been impossible for Massport to comply with the Act. The issue of the plaintiff’s separation date was not resolved until the payment deadline provided by the Act had lapsed.  Because compliance would not have been possible in this case, interpreting the act to include sick pay as wages would lead to an absurd result.

While the decision is a favorable one for employers who do business in Massachusetts, given the significant liability that employers may incur for failing to comply with the Act, Massachusetts employers should confer with counsel when wage payment issues arise.

As we have discussed previously, in early September the U.S. Department of Labor (“DOL”) withdrew its appeal of last November’s ruling from the Eastern District of Texas preliminarily enjoining the Department’s 2016 Final Rule that, among other things, more than doubled the minimum salary required to satisfy the Fair Labor Standards Act’s executive, administrative, and professional exemptions from $455 per week ($23,660 per year) to $913 per week ($47,476 per year).  The DOL abandoned its appeal in light of the district court’s ruling on August 31, 2017 granting summary judgment and holding that the 2016 increase to the salary level conflicted with the statute and thus was invalid, a ruling that rendered the appeal of the injunction moot.

On October 30, 2017, to the surprise of many observers, the DOL filed a notice of appeal regarding the district court’s summary judgment ruling, taking the case back to the U.S. Court of Appeals for the Fifth Circuit.   Four days later, the DOL filed an unopposed motion asking the Fifth Circuit to stay the appeal in light of the Department’s pending rulemaking to update the salary requirement.  On November 6, 2017, the Fifth Circuit granted the motion, staying the appeal pending the outcome of the new rulemaking.

The DOL’s maneuvers may appear confusing. In short, the district court’s summary judgment ruling causes a certain amount of heartburn for the Department because the court in effect concluded that although the DOL has the authority to require a minimum salary for these exemptions, there is a point beyond which the Department cannot go without having the salary level deemed invalid.  The court did not, however, provide a clear standard for identifying the outer limit of the Department’s authority to impose a salary threshold, and this uncertainty creates confusion and a risk of time-consuming and expensive litigation for the Department — and for employees and employers throughout the country.

By appealing the summary judgment ruling, the DOL preserves the option of challenging the decision rather than simply allowing it to remain on the books as a precedent.  Once the Department completes the rulemaking process and issues an updated salary standard, the likely final move would be for the Department to move to dismiss the litigation and to vacate the district court’s order on the basis that the challenge to the 2016 Final Rule has become moot.  Once the new rule is in place and the district court’s summary judgment ruling is no longer on the books, it will be as though the 2016 Final Rule never happened.

We will keep you posted as this matter develops.

We have previously written in this space about the United States Supreme Court’s decision in Integrity Staffing Solutions, Inc. v. Busk, holding that time spent awaiting bag checks was not compensable time under the Fair Labor Standards Act (“FLSA”). But is such time compensable under California law, which differs from the FLSA in some regards? 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 bag checks or security screenings.

Faced with this issue, the Ninth Circuit Court of Appeals has turned to the California Supreme Court for guidance, as it has done on several other wage hour issues in recent years. The case before the Ninth Circuit is Frlekin v. Apple, Inc., a case about which we have written previously. In Frlekin, the district court entered summary judgment in favor of Apple with regard to the compensability of bag check time. 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.

On appeal, the U.S. Court of Appeals for the Ninth Circuit essentially threw up its hands, concluding that it did not have enough guidance on whether such time would be compensable under California law. Accordingly, it certified to the California Supreme Court the following question:

Is time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages or bags voluntarily brought to work purely for personal convenience by employees compensable as “hours worked” within the meaning of California Industrial Welfare Commission Wage Order No. 7?

In doing so, the Court recognized that California law differs in some respects from federal law on whether such time is compensable. The Court opined that the case seems to fall somewhere between decisions focusing on whether an employee has the ability to avoid the time, which could apply here because the employees have the option of avoiding a search by not bringing a bag to work in the first place, and decisions focusing on the control the employer exerts over the employees, which could apply here because the employees are under the employer’s control in the workplace.

As the Court noted, “[o]nce an employee has crossed the threshold of a work site where valuable goods are stored, an employer’s significant interest in preventing theft arises.” In light of the benefit to the employer in avoiding shrinkage, “[i]t is unclear . . . whether, in the context of on-site time during which an employee’s actions and movements are compelled, the antecedent choice of the employee obviates the compensation requirement.”  The Court suggested that the answer may turn on whether “as a practical matter” employees do not truly have the option of not bringing a bag to work.

Time will tell how the California Supreme Court elects to answer this question. It will likely take at least a year, if not substantially longer, for the Court to issue a ruling. In the meantime, employers in California should review their security practices and consider whether options exist to devise practices that obviate these concerns or at least reduce the associated risk.

Betty WhiteIt is often said that no employer is immune from a wage-hour lawsuit. That no matter how diligent an employer is about complying with wage-hour laws, there is nothing to prevent an employee from alleging that it did not comply in full with the law, leaving it to the attorneys and the court to sort things out. Perhaps the best evidence that no employer is immune from a wage-hour lawsuit came on Thursday, March 17, 2016. That is the date that history will always reflect that a wage-hour lawsuit was filed against Betty White.

Yes, that Betty White. Ninety-four year old Betty White. Sue Ann Nivens from The Mary Tyler Moore Show. Rose from The Golden Girls. Betty White from The Betty White Show, and hundreds of talk shows, game shows, and commercials. One of the most recognizable faces of television for the past 50 years.  And one of the most universally adored. That Betty White. Sued. For wage-hour violations.

On March 17, 2016, a former domestic named Anita Maynard filed suit against Betty White in state court in Los Angeles, alleging that she was not paid minimum wages or overtime, was not permitted to take meal and rest periods in compliance with the law, and was not paid all wages due to her when her employment ended. (The lawsuit is known as Anita Maynard v. Betty White Ludden.  Some will recall Ms. White’s late husband, Allen Ludden, who hosted Password in the 1960s and 1970s before succumbing to cancer.) Now, we have no idea whether the claims have any merit.  And, like many single-plaintiff wage suits, it may well be dismissed or settled quietly without anyone knowing much. But we do know this: if Betty White can be sued for wage-hour laws, then any employer can be.

And that is just another reminder of how important it is for employers to try to ensure compliance with wage-hour laws.

Oregon Creates Three New Minimum Wage Rates

On March 1, 2016, Oregon Governor Kate Brown signed a law raising the state’s minimum wage. The law is an unusual one, and it will create challenges for many employers with employees in the state, particularly those with operations or employees in multiple counties.

The first increase to the state’s minimum wage will take effect on July 1, 2016, with a new increase scheduled to take effect each July thereafter. The law provides a schedule of annual increases through 2022. Beginning in 2023, the minimum wage will be adjusted annually to account for inflation.

Oregon Minimum Wage Schedule

Starting July 1, 2016, the Oregon minimum wage will be $9.75 per hour in most—but not all—of the state. The minimum wage in 18 enumerated “nonurban counties” will be $9.50 per hour.

Oregon Nonurban Minimum Wage Counties

Beginning on July 1, 2017, Oregon will have three distinct minimum wage rates: $11.25 per hour in the Portland metropolitan area; $10.00 per hour in nonurban counties; and $10.25 in the remainder of the state. Annual statutory increases will continue through July 1, 2022 when the minimum wage rates will be: $14.75 per hour in the Portland metropolitan area; $12.50 per hour in nonurban counties; and $13.50 in the remainder of the state. The rates will be adjusted each July to reflect changes in the Consumer Price Index.

Oregon Minimum Wage Counties

Although the law provides three detailed schedules of the minimum wage rates for the next seven years, it provides little guidance to employers looking to determine which of the three rates will apply when they have operations in several geographic areas or where an individual works in several different areas. While the statute provides that the applicable minimum wage rate is determined based on the county where “the employer is located,” it is not unusual for an employer to have locations in multiple counties. And it also is not unusual for employees, such as home health aides or delivery drivers, to perform work in multiple geographic areas.

The Oregon Bureau of Labor and Industries is expected to provide guidance on these and other issues.

Download Epstein Becker Green’s complimentary app, Wage & Hour Guide for Employers, for iPhone, iPad, Android, and BlackBerry devices.

 

Vintage State Flag of California

On October 2, 2015, Governor Jerry Brown signed AB 1506, insulating employers from Private Attorneys General Act (“PAGA”)lawsuits based on employee wage statements if employers cure certain defects in the wage statements within 33 days of being put on notice of them.

The law is being celebrated by some as a major development that will significantly reduce the number of PAGA lawsuits filed against California employers.  Unfortunately, there may be a bit of a misunderstanding about what the new law does and how far it reaches.  While it is certainly a positive step for employers that will insulate them from some PAGA claims, its impact on PAGA lawsuits will likely be minimal, at best.

PAGA allows employees to file suit against their employers for alleged violations of the California Labor Code, and to do so on behalf of all “aggrieved employees.”  And it allows those employees to receive up to $200 per person per violation.  Because each pay period in which a violation occurs is generally considered to be a violation, the potential penalties under PAGA can be enormous depending on the number of different Labor Code violations alleged and the size of an employer’s workforce.

Importantly, PAGA claims are not considered “class actions.” While employers in California have been besieged by wage-hour class actions, they have also been besieged by PAGA claims addressing the same issues.  Sometimes the PAGA claims are filed in the same lawsuit with the class claims; sometimes they are filed as separate lawsuits. However they are filed, PAGA claims are often little more than strategic claims meant to drive up the settlement value of class actions or to force employers to settle claims on a classwide basis.

Most PAGA lawsuits would appear to include claims based on defective wage statements. That is not going to change, at least not in any significant way, with AB 1506.

The new law does not provide that employers must be permitted to cure all defects in wage statements before a PAGA claim can be filed.  Instead, it provides that employers must be provided a brief opportunity to cure a couple of specific defects in employee wage statements once put on notice of those defects through a letter to the state Labor Workforce and Development Agency (“LWDA”). It is limited to the failure to specify the pay period covered by the paycheck, and the failure to provide the employer’s name or address on the wage statement.  That’s it.

For employers whose wage statements don’t include one or both of those items, the new law is obviously a meaningful development.  Once put on notice of those defects, they can cure them by sending out compliant wage statements for the prior 3 years.

However, the impact of the new law on the filing of PAGA lawsuits, including those with wage statement components, will likely be tiny.

Very few PAGA lawsuits are based solely on claims that the wage statements did not include the pay period or the employer’s name or address.  Instead, to the extent individuals bring PAGA claims based on employees’ wage statements, they are typically tied to claims that employees were not paid for all time worked or did not receive premiums for missed meal or rest periods.  That is, the alleged wage statement violation is that the wage statement did not accurately record all of the wages that the employee should have received.  The new law will have no impact on those claims.

While AB 1506 may not have a huge impact on PAGA litigation, all employers with employees in California would be wise to take this opportunity to review their wage statements to ensure that they provide all of the items required by California law, including an identification of the pay period covered by the wage statements and inclusion of the employer’s name and address.  And should they ever receive notice of the defects, they would be wise not only to cure those defects, but to do so for the prior three-year period to avoid PAGA liability for that aspect of the wage statements.

 

 

By Jeffrey Ruzal

President Obama has spent much of his second term zealously pursuing an increase to the current $7.25 federal minimum hourly wage. While it is not clear whether a federal wage hike is in the offing, many states have recently taken measures to increase their own minimum wage rates. Effective January 1, 2014, Arizona, Colorado, Connecticut, Florida, Missouri, Montana, New Jersey, New York, Ohio, Oregon, Rhode Island, Vermont and Washington have all increased their minimum wage rates. There are also five additional states, California, Delaware, Michigan, Minnesota, West Virginia, plus the District of Columbia, which have passed legislation for future minimum wage increases that will take effect in 2014.

Employers, especially ones which operate in multiple states, must be vigilant in monitoring and planning for future state minimum wages increases. What is more, employers in specific industries, such as hospitality, must consider additional compliance measures, including changes in the maximum tip credit an employer may take against its tipped employees’ hourly wages.

The chart below provides each state’s previous and current minimum wage and maximum tip credit rates, as well as scheduled future increases through the end of 2014.

State

Previous Minimum Wage

Current Minimum Wage

Future Minimum Wage Increases in 2014

Previous Tip Credit

Current Tip Credit

Arizona

$7.80

$7.90

(effective 1/1/14)

$4.80

$4.90

(eff. 1/1/14)

California

$8.00

$9.00

(eff. 7/1/14)

No tip credit permitted

Colorado

$7.78

$8.00

(eff. 1/1/14)

$4.76

$4.98

(eff. 1/1/14)

Connecticut

$8.25

$8.70

(eff. 1/1/14)

$7.34 for bartenders; $5.69 all other tipped employees

Delaware

$7.25

$7.75

(eff. 6/1/14)

$2.23

D.C.

$8.25

$9.50

(eff. 7/1/14)

$2.77

Florida

$7.79

$7.93

(eff. 1/1/14)

$4.77

$4.91

(eff. 1/1/14)

Michigan

$7.40

$8.15

(eff. 9/1/14)

$2.65

Minnesota

$6.15 for employers w/ annual sales >$625,000; $5.25 for employers w/ < $625,000

$8.00 for employers w/ annual sales >$500,000; $6.50 for employers w/ < $500,000

(eff. 8/1/14)

$6.15 for employers w/ annual sales >$625,000; $5.25 for employers w/ < $625,000

Missouri

$7.35

$7.50

(eff. 1/1/14)

$3.68

$3.75

(eff. 1/1/14)

Montana

$7.80

$7.90

(eff. 1/1/14)

No tip credit permitted

New Jersey

$7.25

$8.25

(eff. 1/1/14)

$2.13

No change in tip credit

New York

$7.25

$8.00

(eff.12/31/13)

$8.75

(eff.12/31/14)

$5.00 for food service employees; $5.65 for service employees (delivery and coat check)

No change in tip credit

Ohio

$7.85

$7.95

(eff. 1/1/14)

$3.93

$3.98

(eff. 1/1/14)

Oregon

$8.95

$9.10

(eff. 1/1/14)

No tip credit permitted

Rhode Island

$7.75

$8.00

(eff. 1/1/14)

$2.89

No change in tip credit

Vermont

$8.60

$8.73

(eff. 1/1/14)

$4.17

$4.23

(eff. 1/1/14)

Washington

$9.19

$9.32

(eff. 1/1/14)

No tip credit permitted

West Virginia

$7.25

$8.00

(eff.12/31/14)

$5.80

By Michael Kun

Much has already been written about last week’s California Supreme Court decision in Duran v. U.S. Bank Nat’l Ass’n, a greatly anticipated ruling that will have a substantial impact upon wage-hour class actions in California for years to come.  Much more will be written about the decision as attorneys digest it, as parties rely on it in litigation, and as the courts attempt to apply it.

In a lengthy and unanimous opinion, the California Supreme Court affirmed the Court of Appeal’s decision to reverse a $15 million trial award in favor of a class of employees who claimed they had been misclassified as exempt, and to decertify the class.  How the$15 million award had been obtained in the first place has been the subject of much discussion and more than a bit of ridicule.  In short, the trial court had tried the case by essentially pulling names from a hat to determine which class members would be able to testify at trial, with the defendant precluded from presenting evidence as to other employees.  The California Supreme Court described this approach as a “miscarriage of justice.”   It then discussed in great length whether, when and how statistical sampling could be used in these cases, among other things.

Already, both the plaintiffs’ bar and the defense bar are claiming that the Supreme Court’s decision is a victory for them.

Because the Supreme Court did not foreclose the possibility that statistical evidence could be used to establish liability in these types of cases – instead, it recognized that “[s]tatistical sampling may provide an appropriate means of proving liability and damages in some wage and hour class actions” —  the plaintiffs’ bar is claiming victory.  To the extent they contend that Duran allows the use of statistical evidence to prove liability, they are ignoring the most important word in that sentence – “may” – along with the various caveats laid out by the Court.

Because the Supreme Court explained that the process must allow an employer to impeach the statistical model and litigate its affirmative defenses, and that there must be “glue” holding claims together beyond statistical evidence, the defense bar is likewise claiming victory.  But even they must admit that it is not the death blow to wage-hour class actions that they may have hoped for.

In truth, Duran is a unusual decision in that it provides more than a few quotes for plaintiffs’ lawyers and defense lawyers alike to rely on.

Ultimately, the most important language in Duran may be this: “A trial plan that relies on statistical sampling must be developed with expert input and must afford the defendant an opportunity to impeach the model or otherwise show its liability is reduced.”

What does this mean?

It means that some trial plans based on statistical sampling may be approved.

And it means that some trial plans based on statistical sampling may not be approved.

It means that a trial court’s analysis will turn, at least in part, on whether the employer will be able to impeach the model and show that it does not work.

And it means that, more than ever, these cases are going to require the parties to retain expert witnesses, and whether classes will be certified will turn on those expert witnesses.  Remember, the Court did not just say that a trial plan that relies on statistical sampling might be appropriate.  No, it said that such a trial plan “developed with expert input” might be appropriate.

The result of all of this is that, with the plaintiffs’ bar now emboldened because the door has not been shut on the use of statistical evidence on liability, employers may face even more wage-hour class actions in California than before.

And statistical experts can go buy those new houses, cars and boats they’ve been eyeing because their services will be in greater demand than ever.  They are the real victors in this decision.