Under a new DOL pilot program, employers can self-report wage violations and potentially avoid costly litigation.

Last week, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) launched a six-month pilot program to resolve FLSA violations.  Under the Payroll Audit Independent Determination (PAID) program, employers may self-report potential overtime or minimum wage violations to the WHD, which will then resolve the matter by supervising payments to employees if the employees accept the settlement.  Importantly, the WHD will not impose penalties or liquidated damages on employers that participate in the program and proactively work with the WHD to resolve the compensation errors.  Further, if an employee accepts a supervised settlement through PAID, s/he waives his or her right to file an action to recover damages and fees for the violations and time period identified by the employer.  To participate in the PAID program, an employer must identify: (1) the wage violation(s); (2) the impacted employee(s); (3) the time period(s) in which the violation(s) occurred; and (4) the amount of back wages owed to the impacted employee(s).  However, employers may not participate if they are in litigation or under investigation by the WHD for the practices at issue, or to repeatedly resolve the same potential violations.

Continue Reading DOL Launches Pilot Program for Self-Reporting FLSA Violations

Recently the National Labor Relations Board invited interested parties and amici to submit briefs in Velox Express, Inc. (15-CA-184006) to address under what circumstances, if any, the Board should deem an employer’s misclassifying statutory employees as independent contractors constitutes a violation of Section 8(a)(1) of the National Labor Relations Act (“the Act”).  Briefs from parties and interested amici must be submitted on or before April 16, 2018.

Continue Reading NLRB Invites Briefs Regarding Whether Worker Misclassification Violates The NLRA

The California Supreme Court issued a decision Monday in a case that is sure to cause headaches for employers when compensating employees through flat sum bonuses.  In Alvarado v. Dart Container Corporation of California (S232607) the Court held that for purposes of calculating the regular rate, a flat sum bonus is to be allocated only to the nonovertime hours worked. This holding departs from the calculation methods broadly considered compliant outside of California under the Fair Labor Standards Act (“FLSA”) and regulations issued by the U.S. Department of Labor.

Continue Reading New Headaches For California Employers On Overtime Calculations

The Sixth Circuit recently affirmed a district court’s summary judgment decision finding that an employer, Plastipak Holdings, Inc., Plastipak Packaging, Inc., Plastipak Technologies, LLC, Plastipak, and William C. Young (collectively, “Plastipak”) properly had paid employees using the “fluctuating workweek” method and dismissing plaintiffs’ claims for underpayment of wages under the Fair Labor Standards Act (“FLSA”).

Continue Reading Sixth Circuit Affirms Employer’s Use of Fluctuating Workweek

The National Labor Relations Board continues to undo its actions overruling the joint employer test of Browning-Ferris Industries, 362 NLRB No. 186 (2015).  Earlier this week the Board vacated its decision in Hy-Brand Industries, the case which had overruled Browning-Ferris.

Shortly after the original Hy-Brand decision, the Board had asked the U.S. Court of Appeals for the District of Columbia Circuit to remand the Browning-Ferris case to the Board.  At the time, the Browning-Ferris case was pending before the court of appeals on the Board’s petition for enforcement and Browning-Ferris’s petition for review, and had been fully briefed and argued.

Continue Reading NLRB Seeks to Return Browning-Ferris Case to DC Circuit

This week the LGBT community and its supporters won an important case in the Second Circuit Court of Appeals.  In Zarda v. Altitude Express, the Court ruled that Title VII’s ban on sex discrimination extends to same-sex, or “anti-gay,” discrimination.  In that case, Donald Zarda, a gay skydiving instructor, alleged he was unlawfully fired after a customer complained about him disclosing his same-sex orientation.

Continue Reading Federal Victory For LGBT Rights

We previously informed you of the National Labor Relations Board’s decision in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., 365 NLRB No. 156 (2017), in which the Board  overruled the controversial joint employer test which it had announced in Browning-Ferris Industries, 362 NLRB No. 186 (2015).

On February 26, 2018, the Board entered an order vacating the Hy-Brand decision, 366 NLRB No. 26 (2018).  It did so in light of a determination by the Board’s Designated Agency Ethics Official, that Board Member William Emanuel “is, and should have been, disqualified from participating in the [Hy-Brand] proceeding.”  Accordingly, Browning-Ferris is again the controlling Board law on joint employer status.

It remains to be seen when the Board might re-visit Browning-Ferris through another decision.  In the meantime, employers who face joint employer concerns should evaluate their current practices in light of this development.

On February 1, 2018, the United States District Court for the Eastern District of Pennsylvania dismissed an overtime class action suit brought on behalf of a group of former democratic campaign workers for their work during the 2016 presidential election.  See Katz v. DNC Services Corp., Civil Action No. 16-5800 (E.D. Pa. Feb. 1, 2018).  In dismissing the overtime suit, the Court relied on an often-overlooked defense to the Fair Labor Standard Act (“FLSA”) – namely, that the FLSA only covers employees engaged in interstate commerce as opposed to employees engaged in purely local activities.

Continue Reading Campaign Workers’ Overtime Suit Dismissed Based on Purely Local Activities

Last week, the United States Supreme Court released its decision in Digital Realty Trust v. Somers, where the Court unanimously adopted a narrow reading of the Dodd-Frank Act’s anti-retaliation “whistleblower” provision.  The Court held that the provision applies only to individuals who report securities violations directly to the Securities and Exchange Commission.

The case involved Paul Somers, a former employee of Digital Realty Trust, who alleged that the company terminated him after he internally reported suspected violations of securities law by the company.  Somers, however, never reported any of the suspected securities violations to the SEC.

Continue Reading Supreme Court Narrowly Interprets Dodd-Frank’s Definition of Whistleblower

In a highly anticipated opinion, a Federal Judge in California ruled in favor of GrubHub, an internet food ordering service, finding it properly classified a delivery driver as an independent contractor.

In Lawson v. GrubHub, the plaintiff, a delivery driver, alleged that GrubHub violated California’s minimum wage, overtime and employee expense reimbursement laws by misclassifying him as an independent contractor when he was really an employee.  He brought the case on behalf of himself and as a representative action pursuant to the California Private Attorney General Act (PAGA).

Continue Reading GrubHub Driver Ruled Independent Contractor In First of Its Kind Gig Economy Trial