On April 1, the US Department of Labor proposed a new rule seeking to narrow the application of joint employer status under the Fair Labor Standards Act (FLSA). A finding of joint employer status can impose joint and several liability on a business along with the hiring employer for the employee’s wages. By narrowing the test, the proposal brings potential good news to franchise businesses in particular.

The proposal outlines a “four-factor balancing test” for the Department to apply collectively in its assessment of whether a business is a joint employer with another.


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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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With thanks to our colleague Lois Rodriquez (Baker McKenzie Spain)

Last month, the Spanish government passed several bills that will impact all companies with headcount in Spain – regardless of their size. These changes relate to gender equality plans, and the obligation for all companies to maintain daily records of employee work hours, including the specific beginning and ending times of each employee’s working day.
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Employers may be required to disclose aggregate pay data in their annual EEO-1 filings as early as May 31, 2019.

On March 4, 2019, a federal court in Washington D.C. lifted the Office of Management and Budget’s (OMB) stay of the revised EEO-1 form that requires companies to submit summary wage data by race/ethnicity and gender. While we expect there may be further challenges and/or delays to the implementation of the revised EEO-1 form, taking a conservative approach means that companies should plan as though they need to report pay data by the current May 31, 2019 deadline.


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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 National Labor Relations Board reaffirmed its adherence to the traditional common law independent contractor test for determining whether a worker is an employee or an independent contractor under the National Labor Relations Act.

In SuperShuttle DFW, Inc., the Board expressly overruled its 2014 FedEx Home Delivery decision. In FedEx, the Board drastically reduced the significance of entrepreneurial opportunity in the determination of independent contractor status. FedEx emphasized the right to control factors relevant to the so-called “economic realities” test and gave weight to whether a worker was in fact “seizing” actual opportunities and rendering services as part of their own independent business.

SuperShuttle DFW, Inc. is significant as it abandons the Obama-era standard and gives a boost to companies using contract labor by elevating the importance of entrepreneurial opportunity in the independent contractor analysis. Insodoing, the Board returns the legal framework to its traditional common law roots and adds the examination of entrepreneurial opportunity. The decision suggests that moving forward, the Board “evaluate the common-law factors through the prism of entrepreneurial opportunity when the specific factual circumstances of the case make such an evaluation appropriate.”


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To help multi-state employers determine the minimum amount they must pay non-exempt employees, our chart below summarizes state and local increases this year. (Unless otherwise indicated, the following increases are effective January 1, 2019.)

This chart is intended to discuss rate changes that affect employers generally, and may not necessarily cover all industry-specific rate changes.


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2018 was, without a doubt, another extraordinary year for US employers. The #MeToo movement continues to have a tremendous impact on the workplace. In addition, the thorny issue of how to manage contractor classifications in the gig economy continued to evolve and new DOJ enforcement activity is heightening concerns about no-poaching agreements and other antitrust