Class & Collective Actions

Last month, we reported that a federal court in Washington D.C. lifted the government’s stay of the revised EEO-1 form that requires companies to submit summary wage data by race/ethnicity and gender. Following the court’s order, uncertainty loomed concerning whether employers would need to include the additional data by the current EEO-1 Report deadline

On March 28, 2019, the US Department of Labor announced a proposed rule to clarify that certain types of compensation and benefits can be excluded from an employee’s “regular rate” of pay, which is used to calculate overtime under the FLSA. This announcement follows the DOL’s recent proposal to increase the minimum salary requirements for the FLSA’s white-collar overtime exemptions, continuing the DOL’s efforts to update and modernize FLSA regulations.

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For 15 years, the minimum salary threshold required for US workers to qualify for the Fair Labor Standards Act’s “white-collar” exemptions has been $23,660 per year.

On March 7, 2019, the Department of Labor issued a new overtime proposal increasing that minimum salary threshold to $35,308 per year. The DOL estimates the new rule will take effect in January 2020.


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“Rowdy” Roddy Piper famously said: “Just when they think they have the answers, I change the questions.”

California employers can relate to this feeling of uncertainty, given a recent trend of California appellate decisions that have upended established legal “answers” regarding certain employment law issues. Following last year’s decision by the California Supreme Court in Dynamex to adopt a new “ABC test” to determine employment status under the Wage Order, and the Court of Appeal’s decision in AMN Healthcare that cast doubt 33 on years of established authority regarding non-solicitation of employee provisions, the Court of Appeal in Ward v. Tilly’s, Inc. recently adopted a new standard for reporting time pay. Because disputes over reporting time pay may lead to putative class action claims, this decision is particularly important for California employers.

California is one of a few states requiring employers to pay a certain minimum amount to nonexempt employees as “reporting time” (also referred to as “show-up pay”) if the employee reports to work but does not actually work the expected number of hours. Specifically, each of California’s Industrial Welfare Commission wage orders requires employers to pay employees “reporting time pay” for each workday “an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work.”

In Ward v. Tilly’s, a divided Court of Appeal has expanded the “reporting time” obligation to situations where employees are required to contact their employer two hours before on-call shifts—even though they never actually physically report to work.


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On January 25, 2019, the Illinois Supreme Court issued a highly anticipated decision, Rosenbach v. Six Flags Entertainment Corporate et al., extending the reach of the Illinois Biometric Information Privacy Act (BIPA). BIPA is an Illinois privacy law that regulates the collection, use, and retention of biometric data such as fingerprints, face, and eye scans by imposing procedural requirements on corporations that collect the data. Though not an employment case, the decision impacts employers using biometric time-keeping systems in Illinois.

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Co-authored by Mike Leggieri (Employment & Compensation Partner, SF) and Steven Chasin (Litigation Associate, DC)

To paraphrase Pharaoh Ramses II, so it is written, so it shall be done.

In Schein, Inc. v. Archer and White Sales, Inc., 586 U.S. __ (January 8, 2019), the first opinion by Justice Kavanaugh, a unanimous Supreme Court reiterated this principle of the Federal Arbitration Act. Specifically, the Court confirmed that when an arbitration agreement delegates to an arbitrator the question of whether the agreement applies to a particular dispute, courts have no power to decide this question, even if a court considers the arbitrability argument to be “wholly groundless.”


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As we previously discussed here, the United States Supreme Court’s May 2018 decision in Epic Systems v. Lewis was a clear win for employers that seek to avoid the expense and disruption of class litigation by resolving disputes individually through binding arbitration. As explained by the Supreme Court in AT&T Mobility LLC v. Concepcion, “[i]n bilateral arbitration, parties forego the procedural rigor and appellate review of the courts in order to realize the benefits of private dispute resolution: lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes.”

For employers looking to take advantage of the benefits of individual arbitration, there are several drafting nuances to consider before rolling out or updating existing arbitration agreements.


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In a welcome decision for franchisors, and first of its kind in the Second Circuit, the Southern District of New York ruled that Domino’s Pizza Franchising LLC, the franchisor (Domino’s), did not exert enough control over its franchisee to warrant joint employer status. This determination means Domino’s will not have to face claims brought under

Illinois employers will have a new headache this new year, because as of January 1, 2019, they must reimburse employees for all “necessary expenditures and losses” incurred within the scope of their employment. This August, the Illinois Wage Payment and Collection Act changed to specifically include an expense and loss reimbursement requirement.


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With the modern workforce comes modern employment problems. Businesses and workers alike have embraced the “gig economy,” but employment laws were not designed for workforces dominated by independent contractors and freelancers. This disconnect leaves gig economy businesses open to significant liability where such workers should have been classified as employees under the law.


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