Hunton Employment & Labor Perspectives

Recently, in Restaurant Law Center, et al. v. U.S. Dep’t of Labor, the U.S. District Court for the Western District of Texas affirmed the validity of a new Department of Labor (DOL) rule, known as the “80-20-30” or “dual jobs” rule, which limits the ability of employers to satisfy a portion of tipped employees’ wages with earned tips.

In a recent decision in Perez v. Express Scripts, Inc., the U.S. District Court for the District of New Jersey determined that plaintiff and a conditionally certified class of 200 members in a misclassification class action were exempt given that they were highly compensated.

In a recent ruling, the U.S. District Court for the Northern District of Illinois determined that a bartender’s evidence – affidavits from herself and her supervisor – were insufficient to obtain conditional certification on her Fair Labor Standards Act (“FLSA”) claim. Plaintiff Alexa Roberts brought suit against One Off Hospitality Group and several of its restaurants and management personnel (“Defendants”) alleging that she was deprived of wages and overtime compensation in violation of the FLSA, the Illinois Minimum Wage Law (“IMWL”), and the Illinois Wage Payment and Collection Act (“IWPCA”). Plaintiff alleged that she was required to clock in and out at the times of her scheduled shift even if she worked in excess of those times so that Defendants would not have to pay overtime. She further alleged that Defendants were aware that other employees were also working off the clock.

The U.S. Equal Employment Commission (“EEOC”) has recently updated its Technical Assistance Questions and Answers, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” (“Q&A)  and taken the position that employers may only screen employees for COVID-19 if it is a business necessity that is justified by “current pandemic circumstances and individual workplace circumstances” because a COVID-19 viral test is a medical examination within the meaning of the ADA.

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).

On December 13, 2021, the Massachusetts Supreme Judicial Court (“SJC”) issued its long-awaited decision determining that the Massachusetts Independent Contractor Statute, G.L. c. 149, § 148B (“Independent Contractor Statute”), which establishes the three-pronged “ABC” test used to classify workers as independent contractors or employees – and provides for a rebuttable presumption that workers are employees unless the purported employer proves otherwise – is not the applicable standard to determine whether an entity is a joint employer.

On October 20, 2021, the California Department of Fair Employment and Housing (“DFEH”) issued a press release to announce its plans to use unspecified technology to conduct online searches for statements in job advertisements that violate the Fair Chance Act (“FCA”). According to the DFEH, during a one-day review, it was able to locate over 500 job advertisements that violated the FCA because they stated that the employer would not consider job applicants with criminal records.

In an April 28, 2021 decision, the Ninth Circuit determined that the application of California’s ABC test (also known as AB-5) to motor carriers is not preempted by the Federal Aviation Administration Authorization Act of 1994 (“F4A”). The ABC test is a judicially-created independent contractor test that was ultimately codified via AB-5. For a more in-depth discussion of AB 5, visit our previous blog post here.

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.

California Governor Gavin Newsom recently signed legislation, AB 2257, that provides a carve out to the state’s independent contractor law. Under Assembly Bill 5, all independent contractors are presumed to be employees unless the hiring business can meet the stringent requirements (known as the ABC test) that are set forth in the California Supreme Court’s Dynamex decision. AB 5 also provided for certain exemptions for certain categories of workers. For a more in depth discussion of AB 5, visit our previous blog post here.

On August 3, 2020, the United States District Court for the Southern District of New York struck down portions of the DOL’s Final Rule regarding who qualifies for COVID-19 emergency paid sick leave under the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”), collectively referred to at the Families First Coronavirus Response Act.

Of particular importance to employers, the Court invalidated two provisions of the DOL’s Final Rule pertaining to: (1) conditioning leave on the availability of work and (2) the need to obtain employer consent prior to taking leave on an intermittent basis.

The California Court of Appeals for the Second District evaluated the validity of unlimited vacation policies in a recent decision. Unlimited vacation policies operate how one might expect: instead of having a specific number of hours vest that the employee can use to take paid time off, an unlimited policy provides that the employee can take as much vacation per year as they would like to subject to company approval. In California, when vacation vests, it is treated as wages at termination and must be paid out. Since unlimited vacation does not vest, there is no payment due at termination.

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.

The California Department of Fair Employment and Housing (“DFEH”) recently updated its Sexual Harassment Prevention Training FAQ guidance to address some of the questions surrounding SB 1343, which requires employers with five or more employees to provide classroom or “other interactive training” for all California employees (not just supervisors) every two years. SB 1343 was initially set to go into effect on January 1, 2020. But in 2019, Governor Newsom signed two amendments to SB 1343 that push the effective date out to January 1, 2021. The deadline to comply with SB 1343 does not change the obligation of an employer with 50 or more employees to train new supervisory employees within six months of their promotion or hire.

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.

Imagine a future in which Artificial Intelligence (“AI”) does the recruiting and hiring at U.S. companies.  Every new hire will be the uniquely perfect candidate whose skills, personality, presence, temperament, and work habits are a flawless match for the job.  Performance management and poor performance become extinct, relics from an age in which humans brought primitive instincts, biases, and flawed intuition to hiring and employment decisions.  While there are risks and challenges to employers in introducing this technology, manufacturers of AI software say that some version of that future may not be too far off.  AI software such as Mya, HireVue, and Gecko are among the numerous platforms that employers are now leveraging to hone in on and hire the best candidates more quickly. Generally speaking, AI interviewing products combine mobile video interviews with game-based assessments. The AI platform then analyzes the candidate’s facial expressions, word choice, and gestures in conjunction with game assessment results to determine the candidate’s work style, cognitive ability, and interpersonal skills.

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.

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.

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: