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.
Continue Reading Massachusetts High Court Rules “ABC” Test Is Inapplicable To Joint Employer Status

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.  
Continue Reading U.S. Supreme Court Will Address Circuit Split on Arbitration Waiver

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).
Continue Reading DOL Resurrects 80/20 Tip Rule; Now With More Bite

In a huge win for California employers, the California Court of Appeals recently confirmed that courts have discretion to strike claims for penalties under the Private Attorneys General Act of 2004 (“PAGA”) if the claims will be unmanageable at trial.  This decision will help employers defeat—or significantly pare down—the broad and unwieldy claims for PAGA penalties that have become popular with the plaintiffs’ bar.
Continue Reading Courts Have Authority to Strike Unmanageable PAGA Claims, Says CA Court of Appeals

Many employers use rounding methods to adjust the hours that an employee works to the nearest time increment, such as every five or ten minutes.  The California Supreme Court has ruled, however, that this rounding practice is impermissible at the meal period.  Equally as troubling for employers, the Court also held that time records showing a noncompliant meal period raise a “rebuttable presumption” of meal period violations.
Continue Reading California Supreme Court Declares Employers Cannot Round Workers’ Time At The Meal Period And Records Can Raise Rebuttable Presumption Of Violations

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, the Fifth Circuit rejected that two-step process and laid out a stricter framework for FLSA collective actions. 
Continue Reading Fifth Circuit Rejects Two-Step FLSA Certification Process

California recently enacted Assembly Bill 1867, requiring all private employers with 500 or more employees to provide COVID-19 supplemental paid sick leave for their California employees.  Employers must begin providing supplemental sick leave, under the new law, no later than September 19, 2020.  The law will remain in effect until the later of December 31, 2020 or expiration of any federal extension of the Families First Coronavirus Response Act.
Continue Reading California Expands COVID-19 Paid Sick Leave

Employee commute time in California generally is not compensable as “time worked” unless the employee is subject to the employer’s control and unable to use that time for his or her own purposes.  But is an employee subject to the employer’s control if she is required to carry her employer’s equipment and tools in her personal vehicle?  According to a California Court of Appeal, the answer could depend on the size of the vehicle.
Continue Reading Does the Car You Drive Impact Whether Your Commute Is Compensable? The CA Court of Appeal Says “Maybe”

The COVID-19 pandemic has exposed employers to an influx of novel employment law issues.  Many employers already have experienced an uptick in related internal complaints or litigation. We identify five particular employment law liabilities employers may be exposed to once the dust settles from the pandemic.
Continue Reading Top Five Employment Law Liabilities Facing Employers Post-Pandemic