Wage & Hour

Expert Analysis

• Employers Must Think 3 Moves Ahead In Their Bid For Talent

  

  Employers offering ever-increasing incentives to combat today’s labor shortage must not be nearsighted about tomorrow’s risk of recession, and should instead ask themselves three key questions about historical demand and future technology, say Adam Santucci and Langdon Ramsburg at McNees Wallace.

• Supreme Court Should Review Flight Break Mandate

  

  Despite government pushback, the U.S. Supreme Court should review Virgin America v. Bernstein, a Ninth Circuit decision that would require meal and rest breaks for flight attendants, as federal law and California regulations are in clear conflict and threaten to disrupt national air transportation, says Patricia Vercelli at Airlines for America.

• Parsing The Impact Of White Collar FLSA Exemption Proposal

  

  The Congressional Progressive Caucus recently proposed to increase the salary threshold at which a white collar worker isn't eligible for overtime pay under the Fair Labor Standards Act, which would force reclassification of millions as hourly employees — especially in low-wage states — and would likely raise compliance costs for businesses, says Stephen Bronars at Edgeworth Economics.

• Preparing For NYC's New Pay Transparency Law

  

  Recent guidance postponing implementation of New York City’s Pay Transparency Law to Nov. 1 failed to clarify employers' obligation to act in good faith when advertising what they are willing to pay, so employers may want to devote resources to up-front evaluations of salary ranges, say John Litchfield and Paul King at Foley & Lardner.

• FAA Ruling Raises Fresh Questions On Transportation Work

  

  In Bissonnette v. LePage Bakeries, the Second Circuit's narrow view of the Federal Arbitration Act's transportation worker exemption leaves some ambiguity for delivery workers in the gig economy, which the U.S. Supreme Court will likely address in a future circuit split, says Jeff Shooman at FordHarrison.

• Calif. Premium Pay Ruling May Raise Employer Liability Risks

  

  After the California Supreme Court’s recent decision in Naranjo v. Spectrum Security Services, holding that premium pay for missed meal and rest breaks constitutes wages that must be reported on pay stubs, employers should revisit their meal and rest period policies to avoid a potential windfall of liability, say Jeremy Mittman and Gabriel Hemphill at Mitchell Silberberg.

• Will Calif. High Court Take On PAGA Unmanageability?

  

  Two diverging California state appeals court decisions — Wesson v. Staples and Estrada v. Royalty Carpet Mills — have set the stage for the California Supreme Court to determine the scope of trial court authority to dismiss Private Attorneys General Act claims on manageability grounds, but the burden may fall on trial courts if the high court denies review, say Harrison Thorne and Lowell Ritter at Sheppard Mullin.

• Mass. Ruling Reduces Employers' Overtime Exposure Risks

  

  A Massachusetts court's recent decision in Devaney v. Zucchini Gold, holding that employees whose overtime claims rest solely on the Fair Labor Standards Act cannot recover greater remedies under state law, reduces liability for employers in the state, and guides on overtime calculations and record-keeping duties, say attorneys at Morgan Lewis.

• Calif. 4-Day Workweek Proposal Would Fuel Employer Exodus

  

  California's proposal to truncate the workweek would result in significant increases in employer costs and reduced hours for hourly employees, and would encourage companies to leave for other states, so lawmakers should instead reform the state's rigid wage and hour laws for greater work schedule flexibility, say Julia Trankiem and Timothy Kim at Hunton.

• What OFCCP Enforcement Shift Means For Gov't Contractors

  

  With long-awaited directives from the Office of Federal Contract Compliance Programs showing a shift away from self-imposed constraints on enforcement, contractors should prepare for greater scrutiny, broad records requests and the agency's unsettlingly hostile position on the limits of attorney-client privilege, says Christopher Durham at Duane Morris.

• Why NLRB Is Unlikely To Succeed In Misclassification Case

  

  A recent National Labor Relations Board complaint would make the act of misclassifying workers as independent contractors a labor law violation, and while companies shouldn't expect this to succeed, they may want to take certain steps to better protect themselves from this type of initiative, say Richard Reibstein and Janet Barsky at Locke Lord.

• 11th Circ. Ban On Service Awards May Inhibit Class Actions

  

  Since the Johnson v. NPAS Solutions decision in 2020, the long-established practice of service awards for representative plaintiffs in class actions has fallen under a cloud in the Eleventh Circuit — and while the case remains an outlier, it may make class actions more difficult to bring in that jurisdiction, say William Reiss and Dave Rochelson at Robins Kaplan.

• 11th Circ. Salt Bae Ruling Provides Service Charge Blueprint

  

  The Eleventh Circuit’s recent decision in Compere v. Nusret Miami, holding that a restaurant owned by celebrity chef Salt Bae could use service charges to compensate employees, highlights the benefits of this pay plan over the tip credit, and illustrates six steps for hospitality employers to implement such a policy, say Ted Boehm and Courtney Leyes at Fisher Phillips.