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(1) DOL Overtime Exemption Thresholds

The Department of Labor’s (DOL’s) 2016 overtime rule has been permanently enjoined and appears to be dead in the water. With the comment period for the DOL’s new Request for Information ending last week, there will probably be a new overtime rule issued in the near future. Secretary of Labor Alexander Acosta has said that he believes the salary threshold for overtime exemptions should be around $33,000. Paul DeCamp, a former Administrator of the DOL’s Wage and Hour Division, now with Epstein Becker Green, gives us some context:

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(2) Recent Developments on Tip Pooling

The DOL has taken a hardline position that employers cannot dictate the distribution of customers’ tips. But the circuits are split on the issue. Under the new administration, the DOL has announced that it plans to rescind its controversial regulation restricting tip pooling and distribution. But even without a regulation from the DOL, states can still regulate the practice, and employees can still pursue private lawsuits. Until the DOL acts, employers should exercise caution, review applicable state law, and look at whether their circuit has taken a position on the existing regulations.

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(3) SCOTUS Hears Arguments on Class Action Waivers

The Supreme Court is kicking off its fall term with oral arguments in three related cases. The National Labor Relations Board (NLRB) has found that mandatory arbitration and class action waivers violate employees’ rights under the National Labor Relations Act (NLRA). The circuits are split on the issue and have disagreed as to whether the Federal Arbitration Act trumps the NLRA or vice versa. While the High Court has been highly supportive of mandatory arbitration in recent years, it has not yet ruled on class action waivers in an employment context.

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(4) “Time Rounding”: The Next Wave of Class and Collective Actions

Looking ahead to the next wave of class and collective actions, we're seeing a surge in lawsuits that focus on time-rounding policies. While rounding an employee’s time up or down is lawful as long as it’s evenhanded, the plaintiffs in these cases argue that employees are regularly disadvantaged by the practice. Facing increasing scrutiny over time-rounding policies and how they’re executed, it won’t be a surprise to see employers weighing the value of time rounding against the risk of litigation.

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(5) Authorities Wrestle with the Definition of “Employee”

Under the Obama administration, we saw significant attempts to expand the definition of “employee” to workers who previously had been treated as independent contractors. The Wage and Hour Division issued an Administrator’s Interpretation establishing a presumption that almost anyone doing work for an employer was an “employee.” But the White House and Republicans in Congress are working to reverse this trend under the Fair Labor Standards Act and the NLRA. The DOL has withdrawn the Administrator’s Interpretation and Congress is considering several options on the issue. Steve Swirsky, from Epstein Becker Green, tells us what’s on the horizon:

“In terms of the definition of ‘employer,’ ‘employee,’ ‘independent contractor,’ and ‘joint employer,’ all of which really fit together, we're watching several pieces of key ... litigation and legislation. In the courts, we are watching, waiting for the D.C. Circuit's decision in Browning-Ferris, which was the case where the NLRB redefined ‘joint employer’ and redefined the test. I think that there is a good chance the court will not agree with the Board’s standard. We have seen Congress try to use the power of the budget to limit the NLRB's ability to enforce ... the Browning-Ferris standard [and] apply that for the broader joint employer. We have seen now the Save Local Business Act that was introduced in the House earlier this year, hearings took place in September. That would add a definition of ‘joint employer’ to both the Fair Labor Standards Act and the National Labor Relations Act.”

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These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

New York City has new legislation about to take effect that will bar employers from asking about salary history. The law goes into effect on October 31, 2017. Dana Sussman, Deputy Commissioner for Policy and Intergovernmental Affairs for the New York City Commission on Human Rights, offers some best practices for complying with the city’s new salary history law.

This is a "Tip of the Week" segment from Employment Law This Week® (Episode 88: Week of September 25, 2017), an online series by Epstein Becker Green. youtube.com/watch?v=u9DMVmKHiEY

Visit EmploymentLawThisWeek.com.

These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

New York home care agencies typically pay sleep-in home health aides for 13 hours per day, relying on a 2010 opinion from the state Department of Labor. Two home health attendants who claimed they did not “live in” the homes of their clients filed suit against their employers, claiming that their patients’ need for 24-hour supervision required them to be working or on call for all 24 hours. They argued that they should have been paid the minimum wage for each hour. A state appellate court ruled in favor of the plaintiffs, finding that the 13-hour rule violates the state's minimum wage law. The Department of Health is currently reviewing the decision. Mike McGahan, from Epstein Becker Green, has more.

“The highest court in the state is the Court of Appeals, so appeals still may be taken to that court. Two federal courts in New York this year have ruled on the identical issue and found that the opinion letter of the Department of Labor was entitled to deference, because it did not conflict with the underlying minimum wage order. Now, those decisions may not be binding on the Court of Appeals, but perhaps the reasoning in them will influence the outcome of the case on appeal.”

For more, read Mr. McGahan’s recent blog post: ebglaw.com/eltw88-heal

This is an extended interview from Employment Law This Week® (Episode 88: Week of September 25, 2017), an online series by Epstein Becker Green. youtube.com/watch?v=u9DMVmKHiEY

Visit EmploymentLawThisWeek.com.

These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

Welcome to Employment Law This Week®! Subscribe to our channel for new episodes every Monday!

(1) Miscimarra Signals Surge in NLRB Rulings

Our top story: NLRB Chairman Philip Miscimarra signals an upcoming surge in decisions from the Labor Board as his term winds down. Speaking at Epstein Becker Green's Annual Workforce Management Briefing, Miscimarra noted the NLRB traditionally strives to issue its decisions in cases in which a departing Board has participated before the member’s term concludes. In Chairman Miscimarra’s case, that will be December 16th of this year.

(2) Another 24-Hour Wage Hour Decision for the Home Health Care Industry

New York home care agencies typically pay sleep-in home health aides for 13 hours per day, relying on a 2010 opinion from the state Department of Labor. Two home health attendants who claimed they did not “live in” the homes of their clients filed suit against their employers, claiming that their patients’ need for 24-hour supervision required them to be working or on call for all 24 hours. They argued that they should have been paid the minimum wage for each hour. A state appellate court ruled in favor of the plaintiffs, finding that the 13-hour rule violates the state's minimum wage law. The Department of Health is currently reviewing the decision. Mike McGahan, from Epstein Becker Green, has more:

“The highest court in the state is the Court of Appeals, so appeals still may be taken to that court. Two federal courts in New York this year have ruled on the identical issue and found that the opinion letter of the Department of Labor was entitled to deference, because it did not conflict with the underlying minimum wage order. Now, those decisions may not be binding on the Court of Appeals, but perhaps the reasoning in them will influence the outcome of the case on appeal.”

For more, read Mr. McGahan’s recent blog post: ebglaw.com/eltw88-heal

(3) California Lawmakers Pass Immigrant Worker Protection Act

New legislation in California around workplace ICE visits: State lawmakers recently passed the Immigrant Worker Protection Act, a series of regulations detailing employer obligations when dealing with Immigration and Customs Enforcement (ICE) agents. The law bars employers from allowing ICE officials to enter their workplaces without a warrant. It also requires employers to receive a subpoena before sharing confidential employee information with agents. The bill will now proceed to Governor Brown for his signature or veto.

For more, read our recent blog post: ebglaw.com/eltw88-mm

(4) California Nears Expansion of Equal Pay Protections

California's strict pay equity laws are about to get even stricter: Three bills that would build significantly on the California Fair Pay Act have just passed in the state legislature. One would clarify that the Act applies to both private and public employers; another would prohibit employers from asking applicants about their salary history; and the third bill focuses on gender pay differentials. It would require employers with 500 or more employees to submit pay data for overtime-exempt male and female employees and board members. The information must be submitted to the Secretary of State by July 2020 and then again every two years, and the results will be published on a public website. The Governor has yet to indicate whether he will sign the bills into law.

For more, read our recent Act Now Advisory: ebglaw.com/news/californias-proposed-wage-shaming-law-is-another-mess/

(5) Tip of the Week

New York City has new legislation about to take effect that will bar employers from asking about salary history. The law goes into effect on October 31, 2017. Dana Sussman, Deputy Commissioner for Policy and Intergovernmental Affairs for the New York City Commission on Human Rights, offers some best practices for complying with the city’s new salary history law.

Visit EmploymentLawThisWeek.com.

These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

Nausheen Rokerya, Associate General Counsel, Labor & Employment, for Visiting Nurse Service of New York, offers some advice on what to do in light of recent employee arbitration agreement decisions. This includes most recently the Gold decision in New York, which found class action waivers to be unenforceable:

“New York employers sitting in Manhattan and the Bronx are bound by the Gold decision, and so they should carefully consider the likely impact it will have on litigation strategy of plaintiffs' attorneys. First, plaintiffs' lawyers are unlikely to file FLSA complaints in federal court, where Second Circuit precedent finding class action waivers enforceable is still binding. At the same time, we do expect to see an uptick in state court filings, where plaintiffs' lawyers are likely to seek to nullify class action waivers, making it nearly impossible for employers to then rely on those waivers to defeat class certification. While the Gold decision is current law in Manhattan and the Bronx, the U.S. Supreme Court is actually scheduled to hear oral argument on this very issue on October 2. We do expect the [Supreme] Court's decision to resolve the current split among the federal courts sometime in early 2018.”

This is a "Tip of the Week" segment from Employment Law This Week® (Episode 87: Week of September 18, 2017), an online series by Epstein Becker Green. youtu.be/trXUq_taCAU

Visit EmploymentLawThisWeek.com.

These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The “Tip of the Week” offers one perspective on possible human resource ideas or business practices. It presents the perspective of an individual not affiliated with Epstein Becker Green and should not be considered legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.