Wage and Hour

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With the crowd’s chant of “equal pay” echoing at the Women’s World Cup soccer match and again as the champions float down the Canyon of Heroes, the issue of pay equality continues to be in the spotlight, and the New York legislature has jumped onto this moving train.

In addition to passing a powerhouse bill that strengthens protections for workers who claim workplace harassment, New York recently passed two pay equity bills that expand protections for current employees and job applicants.

Now, more than ever, employers in New York State should pay close attention to this rapidly changing legal landscape.

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Please join Kelley Drye’s Labor and Employment team for a virtual WORKing Lunch, a webinar series focused on bringing you the latest trends and developments in workplace law. If you or a colleague are interested in receiving an invitation to any of the webinars, please contact marketing@kelleydrye.com.

This webinar series is designed to provide in-house counsel, management and HR professionals with trends and developments related to workplace law. We can provide CLE, SHRM and HRCI credit if desired.

Employment Impact of Cannabis Legalization
Date: Tuesday, August 13, 2019
Time: 12:30 pm ET | 11:30 am CT

This webinar will discuss the variations (and conflicts) between state laws and federal laws, including those governing federally regulated industries, and provide guidance on how employers should address legalized marijuana.

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On Monday May 6, 2019, a Florida federal judge denied a strip club’s bid for sanctions against an exotic dancer and her lawyer who filed a so-called “cookie-cutter” Fair Labor Standards Act lawsuit, depriving the strip club of the chance to recoup.

The next day, on Tuesday, May 7, 2019, a Texas state jury awarded a plaintiff $80 million – of which $75,000,000 was in punitive damages – to a truck driver who fell asleep and crashed behind the wheel, when his supervisors forced him to alter his log book and drive without the required amount of rest.

What could these two cases possibly have in common? Both impart the same basic lesson: adherence to good record-keeping practices can save employers money.

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In July, the California Supreme Court issued its opinion in Troester v. Starbucks Corp., holding that the federal wage laws that excuse companies from paying workers for de minimis work, i.e. small amounts of time that are difficult to record, do not apply under the California wage and hour standards.

The de minimis rule…

On Monday, the California Supreme Court adopted a new standard for determining whether a worker qualifies as an employee for the purposes of wage-hour law. To the surprise of almost no one, the standard does not bode well for many companies operating in the Golden State.

In a highly-anticipated opinion, Dynamex Operations West, Inc. v. Superior Court, the California Supreme Court held that in order for a worker to be properly classified as an independent contractor rather than an employee, the company bears the burden to show that the individual is performing work that is “outside of the hiring entity’s business.” This standard threatens to put an end to much of the independent contractor workforce in California.

The Court adopted what is known as the “ABC” test of evaluating whether workers classified as independent contractors in fact qualify as employees. The test starts with the presumption that all workers are employees, and utilizes three factors, all of which must be satisfied for an independent contractor classification to pass muster. The first factor – whether the worker is “free from the control and direction” of the company – essentially reflects the current legal standard and is not controversial.…
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Employers, even with the most robust and well-intentioned human resources departments, can still face the dreaded misclassification lawsuit for their salaried employers. In many cases, exempt employees are properly classified as executive or administrative employees. A misclassification lawsuit, however, is difficult to dismiss early because plaintiffs are afforded great latitude in crafting factual disputes that can only be resolved at trial. On top of that, plaintiffs generally bring such claims as class or collective actions – making litigation costly as well. Further compounding the problem, settlement of wage and hour misclassification cases is the preferred mode of resolution – but only after a range of damages can be made with some degree of certainty.

What if I told you that if you included one simple sentence in your employment contracts, handbooks and policies for salaried employees, it would likely reduce your exposure by approximately two-thirds in FLSA cases? For starters, it would make it easier to settle at the right amount by avoiding unnecessarily inflated ceiling for damage calculations by plaintiffs. So what are the “magic words” in this simple sentence?

For exempt employees, your salary is intended to pay for all hours worked during each pay period, regardless of your scheduled or tracked hours.…
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As January draws to a close, New York employers are confronting the reality of many new laws and regulations that govern the employment relationship – from the new Paid Family Leave law, to the new federal tax law. We are also tracking several newly-signed and proposed pieces of legislation, which could further complicate the employment relationship in New York.

Here is what there is so far:

New York Paid Family Leave

As we previously reported, effective January 1, most employers in New York State will be covered by the new Paid Family Leave law (“PFL”). Under the PFL, employers will need to provide eligible employees with 8 weeks of family leave with salary reimbursement capped at 50% of the state’s average weekly wage. This will increase on an annual sliding schedule until 2021 when employees will be entitled to 12 weeks of family leave with salary reimbursement capped at 67% of the state’s average weekly wage.

Eligible employees will be permitted to take leave to care for a qualified family member’s serious medical condition, to care for the birth or placement of a child, or for a qualified military exigency. Leave under the PFL will overlap with an employee’s leave under the Family and Medical Leave Act under certain circumstances.

For a more extensive analysis of the PFL, its requirements (including employer notice requirements), and suggested steps for compliance, we encourage you to read our previous blog post on this law: “A New Headache – New York’s Paid Family Leave”…
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On Saturday, August 12, as the nation watched, protests in Charlottesville, Virginia regarding the anticipated removal of a statue of Confederate general Robert E. Lee turned deadly. In the days and weeks after, both the small city and the country wrestled to make sense of the events. In the aftermath, employers too were forced to make decisions and judgment calls as the online community identified specific individuals as white supremacists.

We suspect that most of our readers, like us, don’t like white supremacists. But even apart from the moral implications of Charlottesville, the public acts of employees can impact the public goodwill, brand and reputation of an employer—that is, the most valuable things a company has. So when an employee associated with a particular employer engages in distasteful, or hateful, or outrageous public conduct, what can an employer do? Should the employees be terminated? Disciplined? Allowed to do and say whatever they want while not at work?

Background

Soon after August 12, Twitter accounts, including one called @YesYoureRacist, began attempts to identify rally participants, requesting the following of Twitter users: “If you recognize any of the Nazis marching in #Charlottesville, send me their names/profiles and I’ll make them famous.” The viral and fast-moving world of social media helped the YesYoureRacist Twitter account and similar accounts identify rally participants, both with names and pictures.

The identifications resulted in one father’s public open letter response to his son’s participation, informing the public that the family “loudly repudiate[d] my son’s vile, hateful and racist rhetoric and actions” via a North Dakota newspaper. But the disclosures had workplace ramifications as well.

Following the identification of Cole White as a protester involved in the torch-lit march on Friday, August 11, the hot-dog restaurant in Berkley, California where White worked, Top Dog, reportedly displayed a sign on the restaurant’s exterior stating “Effective Saturday 12th August, Cole White no longer works at Top Dog. The actions of those in Charlottesville are not supported by Top Dog. We believe in individual freedom and voluntary association for everyone.” According to a statement issued by Top Dog to the Washington Post, White “voluntarily resigned” from his employment. The statement went on to note, “We do respect our employees’ right to their opinions. They are free to make their own choices but must accept the responsibilities of those choices.”

On the opposite coast, a cook at Uno Pizzeria and Grill in Vermont was reportedly terminated after his participation in the protests. Unlike Top Dog, the pizza chain’s Chief Marketing Office, Skip Weldon, issued a statement to the Burlington Free Press that “Ryan Roy has been terminated…We are committed to the fair treatment of all people and the safety of our guests and employees at our restaurants.”

News outlets similarly reported the termination of a welder and mechanic based in Charleston, South Carolina after he was photographed in Charlottesville beside the individual accused of killing one person and injuring others with his vehicle. Other rally-related terminations were reported.…
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Partner Mark Konkel was mentioned as Saks Fifth Avenue’s defense counsel in a newly-filed wage-and-hour class action in the Law360 article “Saks Hit With NY Wage Class Action Over Sales Commissions.” The high-end retailer has been accused of violating New York state labor law at its flagship department store in Manhattan. Mr. Konkel and a…