On Tuesday, the United States District Court for the Eastern District of Texas issued a decision enjoining the Department of Labor (DOL) from enforcing its new overtime rule. State of Nevada et al. v. U.S. Department of Labor et al., case number 16-cv-00731. The new rule, which was announced in May 2016 and was set to become effective on December 1, 2016, sent employers scrambling to comply with a substantial increase to the minimum salary requirements for the white collar exemptions. In his decision, the judge held that the DOL had exceeded its authority in issuing the rule.
Continue Reading

Another federal court of appeals has weighed in on the question of whether requiring employees to waive the right to bring a class action against their employer in arbitration or court as a condition of employment violates employees’ rights under Section 7 of the National Labor Relations Act (NLRA).
Continue Reading

Summer is almost here! With longer days and warmer nights on the horizon, many employers may be thinking about offering shortened or altered work weeks to their employees.  Such arrangements can boost employee morale, improve productivity and efficiency, and create an attractive recruiting tool.

A variety of approaches are available to employers interested in implementing a summer hours or flexible work schedule. For example, some employers compress the work week into four days, granting Fridays off; some allow employees to leave work early on certain days without making up the time; and others require employees to report to work earlier than normal, but permit them to leave early or take Friday afternoons off. While choosing which type of summer policy is right for your employees is important, it is also important to keep in mind the legal impact of such decisions.
Continue Reading

In a decision that creates a split with the 5th Circuit Court of Appeals, the 7th Circuit on May 26, 2016 adopted the National Labor Relations Board’s D.R. Horton rationale and held that a condition of employment requiring employees to waive the right to bring class or collective actions either in arbitration or in judicial forums runs afoul of Section 7 of the National Labor Relations Act, and is unenforceable as illegal.  Lewis v. Epic Systems Corporation, No.15-2997 (7th Cir. 2016).
Continue Reading

If you read most any national news feed this week you are likely to come across the federal government’s unveiling of the U.S. Department of Labor’s final overtime rule (the Final Rule), which approximately doubles the salary basis test for employees to be eligible for the overtime exemption under the Fair Labor Standards Act (FLSA). The Final Rule, which will become effective on December 1, 2016, will mean big changes for the way many employers structure personnel and compensation. It is not too late, and certainly not too soon, for employers to start preparing for the increased salary test to take effect.
Continue Reading

The U.S. Supreme Court has upheld the use of statistical sampling evidence to establish liability and damages in a “donning and doffing” overtime class action under the Fair Labor Standards Act (FLSA) and state wage law. Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, 2016 WL 1092414 (U.S. Mar. 22, 2016).

Business groups had urged the Court to prohibit the use of statistical or “representative” evidence in class actions, arguing that a “trial by formula” ignores differences among individual class members and violates a defendant’s due process right to litigate defenses to individual claims.
Continue Reading

March inevitably brings the “madness” associated with the NCAA basketball tournament and office betting pools. Sports gambling is illegal in almost every state, and the NCAA opposes all forms of legal and illegal sports wagering. The American Gaming Association estimated that $9 billion dollars was wagered illegally on the tournament last year alone, and office pools routinely contribute to that annual total. Still, it is a thinly-veiled secret in many organizations that office betting does go on from time to time.  Employers can and do take different approaches to the issue, from looking the other way to disseminating and strictly enforcing a prohibitive policy.  Whatever path management follows, they should do so with their eyes open to the risks—legal and non-legal—related to office gambling.
Continue Reading

There’s no dissent here.  Justice Scalia’s unexpected passing presents a potential blow to employers in two ways.  First, the Supreme Court lost one of its most staunchly conservative justices, who often sided with management in key employment-related decisions.  Second, his death has left the Supreme Court without a clear majority and no easy mechanism to reverse appellate court decisions favoring employees.  With the 2016 elections nearly eight months away, and the likelihood of a replacement shrinking with each news cycle, 4-4 decisions are probably the new norm until a replacement is confirmed after the election.
Continue Reading

We all know that employers do not receive “time off” from applicable employment laws during the holidays. To avoid unnecessary holiday headaches, be mindful of the following issues as you conduct your workplace holiday staffing and planning.

Comply with your Policies and Collective Bargaining Agreements

Remember to abide by the applicable holiday provisions of your policies, agreements, or collective bargaining agreements. Pay for unworked time on recognized holidays; how time worked on holidays is computed or paid; and eligibility requirements for receipt of holiday pay are often a matter of policy or contract. Breaching such provisions—or disparately enforcing them—can give rise to a claim, charge, or grievance.
Continue Reading

California’s new Fair Pay Act amends existing law to enact what is widely being considered as the most stringent equal pay law in the country.  The Fair Pay Act will amend existing law in a number of significant ways, making it easier for employees to bring equal pay suits against their employers.  Under previous law, an employee had to show that he or she was being paid less than an opposite sex colleague who was performing “equal work.”  The new law will allow employees to compare their pay with colleagues who hold different, but “similar” positions, regardless of job title. It goes into effect January 1, 2016.
Continue Reading