Hunton Employment & Labor Perspectives

Late last week, the National Labor Relations Board (“Board” or “NLRB”) issued a decision in Siren Retail Corp. d/b/a Starbucks, 373 NLRB No. 135 (2024), which overruled the nearly 40-year-old decision in Tri-Cast, Inc., 274 NLRB 377 (1985).

On October 30, 2024, Judge Sim Lake of the U.S. District Court for the Southern District of Texas issued a preliminary injunction, halting the Office of Federal Contract Compliance Programs (“OFCCP”) from proceeding with its administrative action against ABM Industry Groups.

On October 29, 2024, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published a Freedom of Information Act (FOIA) notice, inviting federal contractors to respond to FOIA requests that the OFCCP received related to federal contractors’ 2021 Type 2 EEO-1 Consolidated Reports.

Last year, the EEOC revealed its Strategic Enforcement Plan (“SEP”) for Fiscal Years 2024-2028.  In the SEP, the EEOC stated that a subject matter priority was “the continued underrepresentation of women and workers of color in certain industries and sectors.”  One such industry focus is on workers in STEM (Science, Technology, Engineering, Mathematics) fields. 

The Supreme Court’s recent opinion in Securities and Exchange Commission v. Jarkesy (“Jarkesy”) was predicted to spur a wave of litigation challenging the constitutionality of various administrative agency’s civil enforcement powers. In our previous article, we noted that the Office of Federal Contract Compliance Programs (“OFCCP”) may be an agency that faces such a challenge. A complaint filed in the Southern District of Texas by ABM Industry Groups (“ABM”) does just that.

On April 23, 2024, the Federal Trade Commission (“FTC”) approved a final rule banning most non-compete agreements between employers and their workers (the “Final Rule”). However, in the afternoon of Tuesday, August 20, 2024, Judge Ada E. Brown of the United States District Court for the Northern District of Texas, followed her July preliminary injunction against the rule with a substantive ruling granting summary judgment in favor of the plaintiffs challenging the Final Rule and against the FTC (“Memorandum Opinion and Order”), explaining that “the Court concludes the text and the structure of the FTC Act reveal the FTC lacks substantive rulemaking authority with respect to unfair methods of competition, under Section 6(g). See generally 15 U.S.C. § 46(g); 15 U.S.C. § 57a. Thus, when considering the text, Section 6(g) specifically, the Court concludes the Commission has exceeded its statutory authority in promulgating the Non-Compete [Final] Rule.”  Memorandum Opinion and Order at 22. 

On July 26, 2024, the Office of Federal Contract Compliance Programs (“OFCCP”) released directive 2024-01 , which outlines updated procedures for expedited pre-enforcement conciliation. The directive provides guidance consistent with the OFCCP’s final rule titled Pre-Enforcement Notice and Conciliation Procedures which went into effect in September of 2023 (You can read our previous article regarding this final rule here).

As financial institutions consider their ever-growing list of compliance obligations, they would be remiss in not evaluating their employment-related obligations as a federal contractor.

On June 27, 2024, the Supreme Court released its opinion in Securities and Exchange Commission v. Jarkesy, which weakens the enforcement power of administrative agencies to adjudicate certain matters within the agency itself.

On May 24, 2024, the Federal Acquisition Regulatory Council (FAR Council) issued a notice and request for comments regarding a proposed information collection for federal contractors—FAR 52.204-10(d)(2) for first-tier subcontract information and FAR 52.204-10(d)(3) for executive compensation of first-tier subcontractors. The proposed rule notes this type of collection was previously approved, and there is now a renewed focus.

On June 13, 2024, the Supreme Court issued its opinion in Starbucks v. McKinney and, in doing so, clarified the standard applicable to the National Labor Relations Board’s (the “Board”) requests for preliminary injunctions under Section 10(j) of the National Labor Relations Act (the “Act”).

On Tuesday, April 23, 2024, the U.S. Department of Labor (“DOL”) published the final version of a rule originally proposed in September 2023, raising the salary threshold for the Fair Labor Standards Act’s (“FLSA”) exemption for executive, administrative, professional, and computer employees and the total annual compensation level for the highly compensated employee exemption. The final rule also provides for periodic, automatic increases going forward. So, what should employers know about the final rule, and how can they stay compliant with this shifting landscape?

The Federal Trade Commission (FTC) voted on April 23 to approve a final rule banning most non-compete agreements between employers and their workers (Final Rule). The Final Rule is scheduled to go into effect 120 days after it is published in the Federal Register, which will likely occur in the next few weeks, though legal challenges may delay the Final Rule’s effective date and FTC enforcement actions.

The start of spring has brought with it important deadlines and announcements from the EEOC, OFCCP, and the OMB regarding the reporting of employee demographic data to the federal government.

As announced by the Equal Employment Opportunity Commission (EEOC) earlier this year, the 2023 EEO-1 data collection process will open on April 30, 2024 with a deadline to file by Tuesday, June 4, 2024. Private employers with at least 100 employees and federal contractors with at least 50 employees can begin to report their data as of April 30, 2024 in order to meet the deadline.

On March 12, 2024, the United States Court of Appeals for the Sixth Circuit reversed two separate district court decisions addressing how pizza delivery drivers should be reimbursed for their vehicle-related expenses under the Fair Labor Standards Act (FLSA).

The underlying cases involved minimum wage claims under the FLSA.  In both cases, the drivers alleged that their employers had not sufficiently reimbursed them for the expenses they incurred while using their personal vehicles to make deliveries, resulting in the employees earning less than the minimum wage.  One employer ...

On December 23, 2023, a federal District Court in California issued an order compelling the OFCCP to produce formerly-withheld EEO-1 reports to a news organization who submitted Freedom of Information Act (FOIA) requests for the reports. This order is significant because it compels the OFCCP to produce the EEO-1 reports for all federal contractors between 2016 and 2020. The plaintiff news organization submitted four FOIA requests to the OFCCP between 2019 and 2022 requesting all EEO-1 reports submitted by all federal contractors from 2016 through 2020. OFCCP published a notice in the Federal Register informing all contractors of the requests and an opportunity to object. OFCCP released all EEO-1 reports from all non-objecting contractors. The instant litigation relates to the EEO-1 reports of the objecting contractors.

On December 14, 2023, the U.S. Department of Labor (DOL) published a final rule that restricts federal contractors in who they can employ when carrying out federal service contracts under the Service Contract Act (SCA).  The final rule implements President Biden’s Executive Order signed on November 18, 2021, and goes into effect on February 12, 2024.  The DOL estimates that this rule will affect 1.4 million workers on service contracts.

On September 29, 2023, the U.S. Supreme Court granted certiorari in Bissonnette v. LePage Bakeries Park St. LLC, a case from the Second Circuit Court of Appeals involving application of the Federal Arbitration Act’s (“FAA”) exemption for transportation workers.

In April 2021, President Biden issued Executive Order 14026, which increased the minimum wage for federal contractors to $15.00 per hour for contracts under the Service Contract Act and Davis-Bacon Act. The U.S. Department of Labor subsequently issued a final rule implementing the Executive Order, and the new $15.00 minimum wage for federal contractors took effect in January 2022, with annual increases thereafter.

On August 25, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) announced an updated Scheduling Letter and Itemized Listing that places a more onerous information disclosure burden on federal contractors in responding to a Supply and Service compliance audit. In particular the updated Scheduling Letter, OMB No. 1250-0003, now requires federal contractors to produce more documentation for a variety of Items and increases both the scope and breadth of requested compensation data.

The Office of Federal Contract Compliance Programs (OFCCP) recently published a final rule titled “Pre-enforcement Notice and Conciliation Procedures.”  This rule rescinds the evidentiary standards from the 2020 rule titled “Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination,” which required specific pre-determination notice requirements and certain evidentiary standards. In a blog post, the OFCCP explains that the “new final rule restores flexibility to OFCCP’s pre-enforcement and conciliation procedures, promotes efficiency in resolving cases, strengthens enforcement and promotes alignment of the standards of Title VII of the Civil Rights Act of 1964.”

Federal contractors have had a flurry of headlines to keep up with over the last few months. Most prominent among them is the Federal Acquisition Regulatory Council’s interim rule barring federal agencies and contractors from using TikTok or any other ByteDance product (the “Covered Applications”). 

As discussed in prior blog posts, here, here, and here, pay equity is a hot topic for employee retention and compliance. This principle of equal pay for equal work has been mandated since the Equal Pay Act of 1963 and reiterated in Title VII of the Civil Rights Act of 1964. More recently, legislators at the federal, state, and local level have increased their focus on pay equity and pay transparency initiatives. Because of this legislative activity, pay equity has also received increased attention from the Plaintiffs’ bar, and in recent years, pay equity lawsuits have been brought with increasing frequency. Against this backdrop, employers face the tough task of navigating a complex patchwork of pay equity laws in order to achieve fair and legally-compliant compensation practices, while ensuring that their compensation decisions can reflect the reality of a workforce with differing job positions, responsibilities, and performance outcomes.

As pay equity has drawn more attention in recent years, employers need to stay abreast of the patchwork of federal, state, and local laws related to pay equity issues. Importantly, employers should understand the varying standards for protected characteristics, appropriate comparators, and accepted defenses under the varying laws of different jurisdictions. At a high level, this post summarizes the federal and state legal frameworks for pay equity claims and highlights the important differences in analyzing such claims.

Virginia joined the list of states limiting employers’ ability to include confidentiality and non-disparagement provisions in employment agreements for matters related to sexual harassment.  But the law’s scope seems limited, and does not appear to apply to post-employment severance agreements.

As pay equity and transparency continues to trend in the news, states and localities have passed pay disclosure and transparency laws to further assist employees in evaluating whether they are being paid fairly. These laws vary in scope – some require the disclosure of pay ranges on job postings, others require employers to provide the pay scale for a position upon an applicant or employee’s request, and others require employers to automatically provide pay scale information at the time of hire. Despite their differences, all of these pay disclosure laws are aimed at adding transparency to conversations about pay.

OFCCP’s Director Leaves Agency For the White House

On March 29, 2023, the OFCCP announced Director of the Office of Federal Contract Compliance Programs (OFCCP), Jenny Yang, will leave her position to take on a new role at the White House. Specifically, Yang will join the White House Domestic Policy Council as a deputy assistant to the President for racial justice and equity.

Pay equity and transparency have become hot topics across the country as states and the federal government seek to ensure pay equity for employees, regardless of protected class. Federal anti-discrimination laws like the Equal Pay Act and Title VII provide legal recourse for employees who have experienced pay discrimination. As many employers know, federal law prohibits employers from demanding pay confidentiality from employees. Pay transparency laws go a step further and require employers to publish ranges for open positions, adding transparency to the conversations about ...

On December 21, 2022, New York Governor Kathy Hochul signed New York State’s pay transparency bill into law.  Effective September 17, 2023, the new law will require employers to disclose the anticipated compensation range for any advertised job posting.  See N.Y. Lab. Law § 194-b.

As we previously reported, the U.S. Supreme Court was poised to resolve a circuit court split in Robyn Morgan v. Sundance, Inc. (No. 21-328), regarding whether a party must prove that it was prejudiced when arguing that the other party waived its right to arbitration by failing to compel arbitration at the outset of litigation. 

In February, we examined newly passed New York City Local Law 32, which required employers to disclose salary ranges in job advertisements. The law was set to take effect on May 15, 2022, but, on April 28, 2022, the New York City Council passed an Amendment to Local Law 32 that pushed the effective date of the law back to November 1, 2022.

On April 11, 2022 Governor Glenn Youngkin signed HB 1173 into law, which replaces various provisions of the Virginia Overtime Wage Act (VOWA) with provisions largely consistent with the Fair Labor Standards Act (FLSA).

Following enactment of a similar law in Colorado in 2021, the New York City Council passed a bill on December 15, 2021 amending New York City’s Human Rights Law to require New York City employers to disclose the salary range of open positions in all advertised job postings. Mayor Eric Adams had until January 14, 2022 to veto the bill, but declined to do so, which means the law will take effect on May 15, 2022. The implications for New York City employers are far reaching.

On November 15, 2021, the U.S. Supreme Court agreed to hear Robyn Morgan v. Sundance, Inc. (No. 21-326), a lawsuit from a fast-food worker who asserts that her employer waived its right to compel arbitration by engaging in litigation conduct inconsistent with its purported contractual right to arbitration.  By granting review, the Court is poised to resolve a circuit split as to whether a party must prove prejudice when arguing that the other party waived its right to arbitration by acting in a manner inconsistent with the arbitration agreement.

In December of 2020, the DOL under President Trump issued a final rule dispensing with the longstanding “80/20” tip credit rule—whereby an employer was only required to pay a tipped-employee the full minimum wage rate for non-tip producing work if the employee spent in excess of 20% of their workweek performing such work. In early 2021, the DOL under President Biden delayed the effective date of the Trump-era rule (initially until April 30, 2021, then again until December 31, 2021).

On August 17, 2021, the Sixth Circuit Court of Appeals became the first federal appellate court to hold that where nonresident plaintiffs opt into a putative collective action under the FLSA, a court may not exercise specific personal jurisdiction over claims unrelated to the defendant’s conduct in the forum state.  Canaday v. The Anthem Companies, Inc. (Case No. 20-5947) (6th Cir).  The next day, the Eighth Circuit reached the same conclusion in a separate case.  Vallone v. CJS Solutions Group, LLC, d/b/a HCI Group (Case No. 20-2874) (8th Cir).

We previously blogged about how ...

On August 10, 2021, the Third Circuit in Travers v. Federal Express Corporation revived a class action lawsuit under the Uniformed Services Employment and Reemployment Act of 1994 (“USERRA”), holding that employers must provide servicemembers with pay during military leave when employers pay employees on “comparable types of leave.”

Since the Supreme Court’s 2018 Epic Systems ruling, employers increasingly rely on arbitration agreements for more efficient resolution of both single plaintiff and class action claims.  Prolonged judicial review of arbitration awards, however, can dilute that efficiency.  As a result, some employers include waivers of judicial review, in whole or in part, in their arbitration agreements.

But are such waivers permissible?  In a recent decision, the Fourth Circuit said “yes” as it relates to appellate review.

On March 25, 2021, Virginia Governor Ralph Northam signed into law new protections for employees related to the medicinal use of cannabis oil.  Effective July 1, 2021, the newly enacted § 40.1-27.4 will prohibit employers from disciplining, discharging, or discriminating against an employee for his or her lawful use of cannabis oil so long as the use is pursuant to a valid written certification issued by a health care practitioner for the treatment of the employee’s diagnosed condition or disease.

Following the flood of employee-friendly legislation during the Virginia General Assembly’s 2020 session, which included a significantly strengthened wage payment law that we previously discussed, the 2021 session resulted in the passage of yet another new wage-related law that employers need to be aware of.  This new law – the “Virginia Overtime Wage Act” – goes into effect on July 1, 2021 and will usher in the first overtime pay requirement in Virginia’s history.

The Seventh Circuit Court of Appeals recently decertified a class of female correctional facility employees who alleged gender discrimination based, in part, on a theory of “ambient” harassment.  The opinion underscores how the individualized nature of harassment claims can act as a barrier to class certification.

Nature of Claims

Female employees of the Cook County Jail Complex sued their employer for gender discrimination based on the County’s alleged failure to prevent and remedy male prison inmates’ sexual harassment of the plaintiffs.  Plaintiffs claimed that Cook County permitted this harassment to go unchecked and failed to maintain effective procedures to prevent and remedy the harassment.

While COVID-19 may have hit the business community like a hurricane, whether the pandemic, in fact, qualifies for a natural disaster exception under the federal law requiring businesses to warn employees of impending layoffs, remains an open question.

This February, a federal judge paved the way for the Eleventh Circuit to weigh in on whether a class action can proceed against an employer who was forced to lay off employees due to COVID-19.  That case, Benson v. Enter. Leasing Co. of Orlando, LLC, is one of the first to look at the application of pandemic-related layoffs to the Worker Adjustment Retraining Notification Act of 1988, 29 U.S.C. § 2100 et seq. (“WARN Act”). Underscoring the case’s importance to the business community, the U.S. Chamber of Commerce has just filed an amicus or “friend of the court” brief asking the Eleventh Circuit to take up the case and provide “much-needed guidance” to other courts across the country.

For over 30 years, most district courts throughout the country have used a two-step conditional certification process to govern certification of collective actions under the Fair Labor Standards Act (FLSA).  But in its recent and game-changing opinion, Swales v. KLLM Transport Services, LLC, the Fifth Circuit rejected that two-step process and laid out a stricter framework for FLSA collective actions.

For decades, most federal courts have held the view that private settlements of Fair Labor Standards Act (FLSA) claims are unenforceable unless they are approved by the Department of Labor or a court.  However, as we have reported in prior posts, some federal courts have recently begun to challenge this long-held view and have taken a more flexible approach that treats FLSA settlements no differently than settlements or releases involving other employment law claims.  In the recent decision of Stuntz v. Lion Elastomers, L.L.C., the Fifth Circuit Court of Appeals continued that trend and held that a union’s private settlement of FLSA claims on behalf of bargaining unit employees precludes individual bargaining unit employees from later bringing their own FLSA claims.

The Ninth Circuit Court of Appeals has joined several sister circuits in holding that courts should consider the amount of “possible” and not “probable” punitive damages in determining the $5 million amount-in-controversy for federal jurisdiction in class action cases.

The case of Greene v. Harley-Davidson, Inc. presented a technical, but unresolved issue for the court – determining the proper burden when the defendant removes a case from state court based on Class Action Fairness Act (“CAFA”) jurisdiction and relies on punitive damages to establish the $5 million CAFA amount-in-controversy requirement.

As we have previously reported here, here, and here, Virginia has enacted several new labor and employment laws that are poised to dramatically change the legal landscape for employers in Virginia.  In addition to the laws discussed above, Virginia has also enacted “ban the box” legislation for simple possession of marijuana.

A recent Fifth Circuit opinion held that a company’s arbitration agreement did not prevent employees from pursuing their claims as a collective arbitration, rather than individual claims.  As class claims related to COVID-19 begin to surge, the opinion provides occasion for companies to review their arbitration agreements to ensure that the companies’ aims are clearly drafted.

 COVID-19

The harm COVID-19 has wrecked on workplaces is no secret.  As employees and employers grapple with remote work, pay reductions, and record unemployment, it is reasonable to expect a surge of employment litigation in the months ahead.

The Seventh Circuit recently held that district courts should not send court-authorized notice of pending FLSA collective actions to employees who are party to a mandatory arbitration agreement.

In Bigger v. Facebook, Inc., the plaintiff-employee brought an FLSA collective action, alleging that she and a group of “similarly situated” employees were misclassified as exempt employees.  When the plaintiff-employee moved to conditionally certify the FLSA collective action and to send court-authorized notice of the action, the defendant-employer argued that notice was improper and inefficient because most putative members were bound by mandatory arbitration agreements that prohibited their participation in the case.  Despite being presented with a copy of the arbitration agreement, the district court granted conditional certification and ordered the parties to issue notice to all putative collective members, including those that had signed arbitration agreements.  The Seventh Circuit granted an interlocutory appeal.

On Saturday, April 11, 2020, Virginia Governor Ralph Northam officially signed the Virginia Values Act into law.  The bill’s headlining purpose—adding gender identity and sexual orientation to the list of classes protected under the Virginia Human Rights Act (VHRA)—is commendable and has garnered widespread support.  However, other, more technical changes in the bill that are unrelated to the headlining purpose are poised to change the landscape of employment litigation in Virginia and could lead to a significant increase in discrimination lawsuits filed in Virginia’s state courts.  Virginia employers are well served to begin preparing now for this new procedure in the handling of employment discrimination charges and litigation, as the bill’s new provisions go into effect on July 1^st.

The Department of Labor issued its Final Rule regarding implementation of the Families First Coronavirus Response Act on April 1, but it does not resolve all outstanding questions for employers.

The Final Rule provides points of clarity on issues such as the definitions of health care provider and emergency responders, the small business exemption to the Act, and the effect of state or local stay-at-home orders on an employee’s right to take leave.  But it also contains some apparent internal inconsistencies, including whether employers can require employees to use employer-provided paid time off and partially paid Emergency Family and Medical Leave Expansion Act leave (“Emergency Family Medical Leave”) concurrently.

The Ninth Circuit recently overturned a district court’s grant of class certification on a wage statement claim under California Labor Code §226 because there were no “real-world consequences” stemming from the alleged misidentification of the employer’s name on the wage statement. Lerna Mays, a former Wal-Mart employee, brought a putative wage and hour class action alleging various claims, including a claim that Wal-Mart violated Section 226 because her employer was Wal-Mart Stores, Inc., but her pay stubs listed “Wal-Mart Associates, Inc.” The district court granted certification of plaintiff’s wage statement claim, and Wal-Mart appealed.

On March 27, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (“CARES”), an unprecedented $2 trillion economic rescue plan in response to the COVID-19 pandemic.  Our firm has previously summarized the CARES Act’s tax and health and retirement benefits provisions here and here.  Below, we summarize additional aspects of the Act that impact the workplace.  It is important to note that there are a number of open questions presented by this legislation, which could impact employers’ structure for layoffs, furloughs, and pay reductions.  We anticipate the various governmental agencies charged with implementing the CARES Act will be issuing guidance soon, and we will provide updates as appropriate.

The Families First Coronavirus Response Act (the “Act”) is set to take effect on April 1, 2020.  As we previously reported, the Act requires that employers with fewer than 500 employees provide two new forms of paid leave.  First, covered employers must provide up to 80 hours of emergency paid sick leave to employees who are unable to work because of certain COVID-19 related reasons.  Second, covered employers must provide up to 10 weeks of paid FMLA leave (in addition to the 80 hours of emergency paid sick leave) to eligible employees who are unable to work or telework because they need to care for a child whose school or daycare is closed due to the COVID-19 pandemic.

Last month, a court in the N.D. of California denied class certification to a group of Chipotle workers who alleged that the burrito chain maintained unlawful English-only workplaces in the state of California.  Guzman v. Chipotle Mexican Grill, Inc., Case No. 17-cv-02606 (N.D. Cal. Jan. 15, 2020).  The opinion is a textbook example of how a lack of uniform written policies can, in some instances, benefit employers defending pattern and practice lawsuits.  Separately, the case also provides occasion to review the EEOC’s stance on English-Only policies.

A recent California appellate court decision has held that a banquet hall’s “mandatory service charge” could, under the right circumstances, be a “gratuity” that must be paid to employees under California Labor Code § 351. In O’Grady v. Merchant Exchange Productions, the defendant-employer added on a percentage service charge for all banquet contracts for food and beverages. Some, but not all, of the service charge was distributed to managers who did not serve food or beverages at the banquet. Plaintiff brought a putative class action alleging that the defendant’s practice of distributing the service charge proceeds to non-managerial banquet staff violated California Labor Code § 351, which states that gratuities are the sole property of the employees, and the employer (including managers) may not take any portion of the gratuity. The trial court held as a matter of law that a service charge cannot be a tip or gratuity under § 351 and dismissed the case.

In a unanimous decision in Rodriguez v. Nike Retail Srvs., the Ninth Circuit overturned a California district court’s ruling in a wage and hour class action under the California Labor Code that granted Nike’s motion for summary judgement after applying the federal de minimis doctrine.

As we previously detailed, the Virginia General Assembly enacted an employment records disclosure law requiring employers to furnish Virginia employees certain personnel documents upon request.  That law took effect on July 1, 2019.

A new Virginia law will require employers to provide current or former employees with copies of certain employment-related documents upon request.

Effective July 1, 2019, Virginia employers must provide a copy of a limited set of employment documents to employees upon receipt of a written request for such information from the employee, her attorney or an authorized insurer.  The law applies to current and former employees, and allows an employer 30 days to produce the documents after receipt of the request.

On May 2, 2019, the Ninth Circuit ruled in Vazquez v. Jan-Pro Franchising International, holding that the new independent contractor test established by the California Supreme Court in its 2018 decision in Dynamex v. Superior Court applies retroactively to franchisors. As a result of this decision, employers and franchisors who have classified workers as independent contractors may see an increase in wage and hour class actions alleging that the workers are or have been misclassified. Additionally, the decision has serious implications for any California companies that operate under a franchise business model.

Federal Rule of Civil Procedure 23(f) governs petitions for interlocutory appeals of orders that grant or deny class certification and requires that a petition for permission to appeal must be filed “within 14 days after the order is entered.” It makes no mention of motions for reconsideration.

The current trend at both the state and federal levels is moving in the direction of mandatory paid family leave.  For example, in recent years, 6 states (California, Massachusetts, New Jersey, New York, Rhode Island, and Washington) and the District of Columbia have enacted mandatory paid family leave benefits for employees.  Moreover, at least 18 other states are currently considering some form of paid family leave legislation.

The U.S. Department of Labor on Thursday issued its new proposal to amend the salary threshold for employees to qualify for the Fair Labor Standards Act’s white-collar exemptions from overtime pay requirements to $35,308 per year ($679 per week).

The much-anticipated proposed rule would raise the minimum annual salary requirement for the white-collar exemption to the Fair Labor Standards Act from $23,600, a level that has been in place since 2004.  The DOL estimates that the rule change will make just more than one million new employees eligible to earn overtime, assuming that employers do not increase employees’ salary levels to meet or exceed the new level.

Recently-introduced federal legislation could have a significant impact on equal pay class actions. On January 30, 2019, Democratic legislators reintroduced the Paycheck Fairness Act (H.R.7), which provides for various changes to the Equal Pay Act of 1963 (“EPA”).  Earlier versions of this bill, which was originally introduced in 1997, have all died in Congress. However, on February 26, 2019, the House Committee on Education and Labor voted in favor of H.R.7, which means the legislation will now be presented to the full House for a vote.

Some key features of the newly-proposed legislation include:

As detailed in our previous article on this issue, in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 137 S. Ct. 1773 (June 17, 2017), the U.S. Supreme Court established limitations on personal jurisdiction over non-resident defendants in “mass actions,” effectively supporting the view that plaintiffs cannot simply “forum shop” in large class and collective actions and instead must sue where the corporate defendant has significant contacts for purposes of general jurisdiction or limit the class definition to residents of the state where the lawsuit is filed.  Notably, the Supreme Court’s decision was limited to personal jurisdiction issues in state courts, which has led to a split on the question of whether, and to what extent, the Supreme Court’s analysis applies to class and collective actions pending in federal court.

The Supreme Court once again has shown its strong preference for enforcing the terms of arbitration agreements as written by the parties.  In Henry Schein Inc. v. Archer & White Sales Inc., Justice Kavanaugh’s first written opinion, the Court held that when an arbitration agreement delegates the threshold question of arbitrability to an arbitrator, the arbitrator, not a court, should decide the question, even if it is clear to a court that the dispute is not covered by the arbitration agreement.  This unanimous opinion adds to a growing body of recent Supreme Court case law making clear that the terms of arbitration agreements, like any other contract, should be enforced as written and without policy considerations or exceptions.  

Before the lame duck period of the 115^th Congress, Rep. Jerrold Nadler (D-NY) and a group of 58 Democrat co-sponsors, introduced the Restoring Justice for Workers Act (H.R. 7109), which would prohibit  employers from requiring employees to sign mandatory arbitration agreements.

As we previously reported, the United States Supreme Court held this past Term in Epic Systems Corp. v. Lewis that class action waivers in arbitration agreements do not violate the National Labor Relations Act.  In the wake of Epic Systems, courts have found that class action waivers are likewise permissible under the FLSA.  These cases make clear that class action waivers are here to stay.

The Supreme Court recently approved substantial changes to the Federal Rules of Civil Procedure, including amendments to Rule 23, which covers federal class actions.  The amendments to Rule 23 seek to modernize and standardize the notice, settlement, objection, and appeal procedures.  If Congress approves the amendments, they will become effective December 1, 2018.     

In China Agritech, Inc. v. Resh, the U.S. Supreme Court held that putative class members cannot rely on equitable tolling to file new class actions under Rule 23 of the Federal Rules of Civil Procedure.

Resh was the third shareholder class action suit filed against China Agritech, Inc. under the Securities Exchange Act of 1934. The plaintiffs in the two previous suits settled their claims after the court denied their motions for class certification.

In Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 137 S. Ct. 1773 (June 17, 2017), the U.S. Supreme Court established limitations on personal jurisdiction over non-resident defendants in “mass actions,” a litigation strategy often utilized by plaintiffs’ class action attorneys to sue corporations in plaintiff-friendly jurisdictions that have little to no connection with the underlying dispute.  The Supreme Court determined that the requisite connection between the corporate defendant and the litigation forum must be based on more than a combination of the company’s connections with the state and the similarity of the claims of the resident plaintiffs and the non-resident claimants.  The ruling directed the dismissal of 592 non-California claims from 33 other states.  As a result, the ruling supports the view that plaintiffs cannot simply “forum shop” in large class and collective actions and instead must sue where the corporate defendant has significant contacts for purposes of general jurisdiction or limit the class definition to residents of the state where the lawsuit is filed.

The practice of “tip-pooling,” which refers to the sharing of tips between “front-of-house” staff (servers, waiters, bartenders) and “back-of-house” staff (chefs and dishwashers), has been in the news recently as the Trump Department of Labor (“DOL”) seeks to roll back a 2011 Obama-era rule limiting the practice under the Fair Labor Standards Act (“FLSA”).

On January 8, 2018, the United States Supreme Court denied a petition for certiorari seeking to overturn the Fourth Circuit’s new joint employer test under the Fair Labor Standards Act.  As a result, employers will continue to be faced with differing joint employer standards in the various federal circuits.

On October 5, 2017, Attorney General Jeff Sessions released a formal letter on behalf of the United States Department of Justice stating the DOJ’s official position that Title VII “does not prohibit discrimination based on gender identity per se, including transgender status,” officially retracting the DOJ’s previous position under the Obama Administration and setting up a direct conflict with the EEOC’s current position on the scope of Title VII.

On September 15, the White House announced that President Trump will nominate Peter B. Robb, a longtime labor and employment attorney, to become the National Labor Relation Board’s next general counsel.  Assuming Robb is confirmed by the Senate, he would likely take over his position  hopefully in early November following the end of the incumbent’s General Counsel’s term and Robb’s swearing in.

On August 3, 2017, the U.S. Senate confirmed Marvin Kaplan, a former Occupational Safety and Health Review Commission attorney, to fill one of the two vacant seats on the National Labor Relations Board.  Kaplan’s confirmation moves the Board one step closer to a Republican majority.  Kaplan was confirmed on a 50-48 party-line vote by the Republican-controlled Senate.  Kaplan joins NLRB Board Chairman Philip Miscimarra on the Republican side of the NLRB.  Mark Gaston Pearce and Lauren McFerran are the Democrat Board members.

One of the most controversial regulatory actions from the US Department of Labor during the Obama administration was the DOL’s regulation significantly increasing the salary level under the Fair Labor Standards Act’s white-collar exemptions.  The regulation sought to more than double the current salary requirement of $23,660 per year, and it included an automatic updating requirement that would have accelerated future salary level increases at a rate well above the rate of inflation.

In a landmark ruling on April 4, 2017, the United States Court of Appeals for the Seventh Circuit, sitting en banc, became the first federal appellate court to officially recognize a discrimination claim under Title VII based solely on the plaintiff’s sexual orientation.  The Court’s decision in Hively v. Ivy Tech Community College of Indiana reflects a groundswell of recent cases questioning whether sexual orientation claims are viable under Title VII.  Although the Seventh Circuit is the only appellate court so far to hold that sexual orientation discrimination is a form of “sex” discrimination under Title VII, recent panel decisions from the Second and Eleventh Circuit Courts of Appeals signal that additional circuit courts might be poised to overrule existing case law to find similar protections.

Published in Law360

Much has been written about the National Labor Relations Board’s controversial Browning-Ferris decision that significantly expanded the scope of joint employer liability under the National Labor Relations Act. But virtually no attention has been given to the Fourth Circuit’s recent panel decision in Salinas v. Commercial Interiors, Inc., which creates an altogether new and incredibly broad joint employment standard under the Fair Labor Standards Act that makes the NLRB’s Browning-Ferris joint employment standard seem temperate at best.

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Much has been written about the National Labor Relations Board’s controversial Browning-Ferris decision that significantly expanded the scope of joint employer liability under the National Labor Relations Act. But virtually no attention has been given to the Fourth Circuit Court of Appeals’ recent panel decision in Salinas v. Commercial Interiors, Inc., No. 15-1915 (4th Cir. 2017), which creates an altogether new and incredibly broad joint employment standard under the Fair Labor Standards Act that makes the NLRB’s Browning-Ferris joint employment standard seem ...

On November 22, a federal judge in the Eastern District of Texas preliminarily enjoined the Department of Labor’s final overtime rule, which would have expanded overtime eligibility to executive, administrative, and professional employees making less than  $47,476 per year, who were previously exempt from the Fair Labor Standards Act’s requirements under its white collar exemption.  The final rule was scheduled to go into effect on December 1, 2016.

It is very common for employers to pay employees by direct deposit, and an increasing number pay employees with payroll debit cards.  Beginning March 7, 2017, employers in New York will have to deal with a new regulation regarding the use of direct deposit and payroll debit cards for payment of wages.  The new regulation, issued by the New York Department of Labor and titled “Methods of Payment of Wages,” imposes heightened notice and consent requirements on employers offering either service.

The recently enacted Defend Trade Secrets Act of 2016 (DTSA) provides a new form of expedited relief in federal court for owners of misappropriated trade secrets through an ex parte seizure of property. In “extraordinary circumstances,” DTSA permits a court to issue an order to authorize law enforcement officials to seize property – without advanced notice to the accused – in order to prevent the propagation or dissemination of the trade secret. The utilization of this ex parte seizure does not come without risk. Section 2(b)(2)(G) provides that in the case of wrongful or excessive seizure, a person who suffers damages has a cause of action against the applicant and can seek reasonable attorneys’ fees, damages for lost profits, cost of materials, loss of good will and punitive damages.

New York Attorney General Eric T. Schneiderman announced yesterday that he has filed a “wage theft” lawsuit against Domino’s Pizza Inc., and several of its New York area franchisees. The case is particularly notable in that Schneiderman is pursuing a joint employer liability theory, seeking to hold Domino’s liable for the alleged wage payment violations of its franchisees. This is the first time Schneiderman has pursued such a claim in a wage payment case, and the lawsuit potentially opens a new front in federal and state enforcement agency attempts to expand the definition of what it means to be a joint-employer.

As we previously reported, the newly-enacted Defend Trade Secrets Act (DTSA) represents a significant new weapon for companies to prosecute trade secret violations. Among other features, the DTSA’s nationwide reach and its provision for judicial seizure, double damages, and attorneys’ fees provide a much more robust enforcement and remedy scheme than is currently available under many state laws.

Today, the U.S. Department of Labor published its final rule increasing the salary requirement for the Fair Labor Standards Act’s white-collar exemptions to $47,476 per year ($913 per week). Though the new salary level is not as high as the $50,440 per year level predicted by the DOL in its July 2015 proposed rule, the final rule nonetheless more than doubles the current salary requirement of $23,660 per year ($455 per week). The reason the salary requirement is somewhat lower than initially predicted is that the final rule applies the proposed 40% threshold to the average full-time salary compensation paid in the lowest-wage Census region, as opposed to applying the 40% threshold to the national salary average.

Congress gave companies a new weapon to fight trade secret theft this week. President Obama signed a law that addresses several issues that often mire trade secret litigation – cross border battles when multiple states are involved, venue and choice of law disputes, and lack of ability to seize trade secrets before they escape a state or the United States. Companies now have a civil federal cause of action (original federal jurisdiction) for trade secret theft and the ability to seize trade secrets through an ex parte temporary injunction procedure that could prove to be incredibly costly for the unfortunate company whose newly hired employee stole trade secrets from a former employer. There will be more to come on these elements over the next few weeks.

On March 17, 2016, the U.S. Court of Appeals for the Second Circuit decided Graziadio v. Culinary Institute of America, holding that sufficient evidence existed to find that the Culinary Institute of America’s (“CIA”) human resources director was an “employer” under the Family and Medical Leave Act (“FMLA”) and could therefore be held individually liable for violations of the FMLA. In reaching this decision, the court found that the economic-realities test used to analyze whether an individual is an “employer” under the Fair Labor Standards Act (“FLSA”) should also be used to determine whether an individual is an “employer” under the FMLA. The Second Circuit vacated and remanded the Southern District of New York’s summary judgment decision on the question of individual liability for further consideration under the economic-realities standard. The application of this test likely means an increased risk of individual liability for human resources directors, supervisors, and other members of management charged with violating an employee’s rights under the FMLA.

Under the Fair Labor Standards Act (FLSA), employers who use a tip credit to satisfy their minimum wage obligations for tipped employees must follow certain rules related to those tips.  One of those rules relates to  the use of tip pools – i.e., pooling of tips received by multiple tipped employees and then dividing the total among the pool participants based on a specified formula.  Under Section 3(m) of the FLSA, employers who rely on the tip credit and who require their tipped employees to contribute their tips to a tip-pooling arrangement must ensure that the only employees who participate in the pool are those that “customarily and regularly” receive tips.  This typically means that managers, hostesses, cooks, dishwashers, and other non-tipped employees cannot participate in the tip pool if the employer wants to rely on the FLSA’s tip credit.

On January 20, 2016, the administrator of the Department of Labor’s Wage and Hour Division (WHD), David Weil, issued an “Administrator’s Interpretation” (AI) regarding the agency’s interpretation of joint employment under the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). The new AI purports to clarify the WHD’s position that joint employment under these statutes “should be defined expansively.” When considered alongside the National Labor Relations Board’s (NLRB or the Board) controversial ...

For years, there has been nearly universal agreement among the courts that managers do not engage in “protected activity” for retaliation claim purposes under most employment laws when they raise concerns about compliance issues in the regular course of performing their job duties. The traditional reasoning held that a manager whose job includes evaluating and/or reporting compliance issues, and who does so in furtherance of his or her job duties, should not become cloaked in anti-retaliation protection for merely doing the job he or she is employed to do. Instead, to engage in protected activity, the manager must step outside his or her role as a manager and become adversarial to the employer. The so-called “manager rule” has been consistently used by courts to reject retaliation claims under various employment statutes by human resources professionals and supervisors who report employment-related compliance issues related to other employees.

On April 14, the National Labor Relations Board changed its rules for processing union elections. The new rules stack the deck against employers by decreasing the time between the filing of a petition and the election, which means that an employer now has less time to educate its employees about the potential impacts of unionization. The new rules also add procedural requirements that employers must address, which can distract the employer from the more important task of running its campaign. Given the significant changes, many have questioned whether it is possible to win an ...