Is this the worst employment law decision of 2017?

I’ll be vacationing in California with my family the first two week of July. After reading the 9th Circuit’s decision in Arias v. Raimondo—holding an employer’s attorney for liable for FLSA retaliation against his client’s employee because the employee sued his client for unpaid overtime—I’m thinking of adding the 9th Circuit to my list of tourist stops in San Francisco to see if courthouse resembles a Salvador Dali painting. Because this decision is flat out bonkers.

DOL pulls Obama-era guidance on joint employment and independent contractors

The past two years have been busy for the Department of Labor’s Wage and Hour Division. One can directly track a large part of its busy workload to its enlargement of who qualifies as an “employer” under the Fair Labor Standards Act. In 2015, the DOL issued guidance re-defining, and broadening the definition of, who qualifies as an “independent contractor”. And, the following year, the DOL did the same with its definition of “joint employer”.

Alex Acosta, the newly appointed Secretary of Labor, looks to roll back the clock on these interpretations.

When is a settlement not a settlement? FLSA

When you settle a lawsuit with an employee, you are bargaining for finality. You are paying that employee to resolve all disputes between you, whether asserted or unasserted. You want to be done with that individual forever.

Except that is not always the case.

I still despise the misnamed and overused phrase “wage theft”

Writing at Inc.com, Suzanne Lucas (aka Evil HR Lady) reports on a study published by the Economics Policy Institute, which says that employers short their employees $15 billion in wages per year. According to Suzanne, “Wage theft isn’t always the case of a corrupt boss attempting to take advantage of employees.” She is 100 percent correct. In fact, most instances of an employer not paying an employee all he or she is owed under the law results from our overly complex and anachronistic wage and hour laws, not a malicious skinflint of a boss intentionally stealing from workers.

Working Families Flexibility Act seeks to legalize comp time in lieu of overtime

If you are a private employer, it is 100 percent illegal for you to provide employees comp time in lieu of overtime for hours worked by non-exempt employees over 40 in a work week. If a non-exempt employee works overtime, you must pay them overtime, and you violate the FLSA if you provide comp time in its place.

The Working Families Flexibility Act, introduced earlier this year in Congress, seeks to change this rule.

2nd Circuit provides plan for employers to win misclassification cases

In Saleem v. Corporate Transportation Group (2nd Cir. 4/12/17) [pdf], the 2nd Circuit Court of Appeals considered whether a company properly classified a group of black-car taxi drivers as independent contractors, or whether it should have classified them as employees. In ruling for the company, the court gifted employers a game plan to use when classifying workers to minimize risk in making the key determination of whether a worker is an employee or an independent contractor.

For want of an Oxford comma

Vampire Weekend once asked, “Who gives a f__k about an Oxford comma?” The answer, apparently, is the 1st Circuit Court of Appeals, a whole lot.

In O’Connor v. Oakhurt Dairy [pdf], that court reversed the dismissal of an overtime lawsuit based on the absence of a Oxford comma in a list of activities that qualify for a certain exemption under Maine’s wage-and-hour law.

Inclement weather policies should prioritize safety over productivity

Snow day! Norah went to bed with PJs on backwards last night (and received her wish; now please use your time wisely to work on homework). Donovan is going to be pissed because tonight’s Mathmagic night at school (which he was really looking forward to) will be cancelled. And me? I’m enjoying some flexibility by working from the comfort of my kitchen island. If the storm forecast holds as predicted, however, I'll be giving myself lots of extra travel time tomorrow morning for a court appearance. #lawyerlife

What about your business?

The 6th nominee for the “worst employer of 2017” is … the double-booked recordkeeper

Yesterday’s nominee for the Worst Employer of 2017 may not end up as the last employer standing when I tally the votes at year’s end (at least according to some of the comments and tweets I received). Today’s nominee, however, should receive more universal support (or disgust, as the case may be).

How many sets of time and pay records should you keep on your employees? For your sake, I hope your answer is not any number greater than “one”.

“If I could press a button and instantly vaporize one sector of employment law?” (redux)

Nearly six years ago, Walter Olson, writing as his Overlawyered blog, asked the following question:

“If I could press a button and instantly vaporize one sector of employment law…”?

This was my answer:

Paw-ternity leave is a great idea, but please don’t forget about us humans

This is Loula, our vizsla.

We love our dog. And, when we brought her home four summers ago, it was a great benefit to our family that my wife had yet to return to work. She was home for Loula’s first two months, to acclimate her to our house and family. What if, however, you lack the luxury of not working during your puppy’s first few weeks at home?

BrewDog, a Scottish brewery set to open up in Columbus this Spring, has your answer—paw-ternity leave.

Andy Puzder, Trump’s pick for Secretary of Labor, withdraws

Late yesterday, news broke that Andy Puzder, Donald Trump’s pick for Secretary of Labor, had withdrawn his name from consideration, just one day before his oft-postponed confirmation hearing was to take place.

Does the FLSA cover unpaid “gap time”?

As we all should know, the Fair Labor Standards Act requires that employers pay non-exempt employees overtime at a rate of one and one-half times the regular rate of pay for any hours worked in excess of 40 in any given work week. And, it provides a remedy for an employee to sue for unpaid overtime (among other remedies).

What about gap time? “What is gap time,” you ask? It’s employment-law speak for unpaid straight time. Does the FLSA authorize a court to provide a remedy for unpaid straight time (for example, off-the-clock work that does not break the 40-hour weekly threshold)? Or, does the FLSA only authorize back pay for unpaid overtime?

Andrew Puzder’s view of women should disqualify him as Secretary of Labor

On Saturday, millions worldwide (2.6 million, according to USA Today) marched for women’s rights. On February 2, the Senate Health, Education, Labor and Pensions committee will hold its confirmation hearing for Labor Secretary nominee Andrew Puzder.

“What does one have to do with the other,” you ask? Consider this—

SCOTUS to review NLRB ban on class-action waivers

One of the biggest issues on the NLRB’s hit list over the past few years has been class-action waivers. In D.R. Horton, a 3-2 majority of the Board held that an arbitration agreement which requires employees to waive their right to collectively pursue employment-related claims in all forums (i.e., by giving up their right to file or join class or collective actions) violates employees’ rights under the National Labor Relations Act to engage in protected concerted activity. This issue is significant, as employers seek to use class-action waivers to combat the plague of wage-and-hour lawsuits.

In the four years since D.R. Horton, the NLRB has invalided hundreds of class-action waivers. On appeal, however, not all federal circuit courts have been kind to D.R. Horton. The 5th Circuit overturned D.R. Horton itself, while other circuits have sided with the NLRB on this important issue.

Now, the Supreme Court is poised to have the final say.

Tread carefully if stripping employees of their pay

Wait, not this kind of stripping?

Stevens v. Oval Office (E.D. Wisc. 12/29/16) [hat tip: Walter Olson’s Overlawyered] poses an interesting question—is it ever permissible to dock an employee’s pay for disciplinary reasons? The fact that the plaintiffs are adult dancers docked for rule infractions such as “failing to fully remove all clothing, except for underwear, by the end of the first song when dancing on stage” doesn’t dissuade interest either.

12 myths about independent contractor misclassification

Earlier this week, the Department of Labor published a new web guide on the issue of independent contractor misclassifications. The DOL’s tagline, “Misclassification Affects Everyone”, along with the comprehensive content contained therein, makes it clear that this issue remains hot for the agency. 

Contained the guide is a document entitled, “Myths About Misclassification”, listing 12 myths the DOL believes businesses commonly hold about independent contractors.

Santa Claus and child labor laws

While I was watching Rudolph the Red Nosed Reindeer with my family something struck me. The elves working in Santa’s Workshop manufacturing the toys looked awfully young. Is it possible that the North Pole lacks child labor laws? Is this how Santa keeps his costs down? After all, he needs toys for more than half a billion children.

So, what are Ohio’s child labor laws?

Ohio set to maintain stable statewide minimum wage

A bill is on its way to Governor Kasich’s desk for signature that would prohibit any municipality or other political subdivision from establishing a minimum wage different from Ohio’s state minimum wage.

Sub. S.B. 331 [pdf] is a reaction to efforts of the “Fight for 15” movement to create piecemeal minimum wage increases city by city. Recall that earlier this year, Ohio’s attorney general issued an advisory opinion that a municipal ordinance may not require an employer to by a to pay its employees an hourly minimum wage rate that is in excess of the statewide hourly minimum wage rate,which is fixed by Ohio’s Constitution. This bill clears up an ambiguity over this issue.

A $15 minimum wage is not without consequences #fightfor15

Donald Trump’s presidency sparks an interesting dichotomy—a Republican that rode into office on a wave of populism, including fiscal populism. Officially, the President-elect favors a higher minimum wage: “On the minimum wage, Mr. Trump has voiced support for raising it to $10 at the federal level, but believes states should set the minimum wage as appropriate for their state.” 

The “Fight for 15” movement is taking notice: