Wage & Hour

Expert Analysis

• History Supports 2nd Circ. View Of FAA Transport Exemption

  

  In the circuit split over when transport workers are exempt from the Federal Arbitration Act, sparked by the 2022 U.S. Supreme Court decision in Southwest Airlines v. Saxon, the Second Circuit reached a more faithful interpretation — one supported by historical litigation and legislative context, though perhaps arrived at via the wrong route, say Joshua Wesneski and Crystal Weeks at Weil.

• Employers Need Clarity On FLSA Joint Employer Liability

  

  A judicial patchwork of multifactor tests to determine joint employment liability has led to unpredictable results, and only congressional action or enactment of a uniform standard to which courts will consistently defer can give employers the clarity needed to structure their relationships with workers, say attorneys at Seyfarth.

• Calif. Independent Contractor Lessons From Grubhub Suit

  

  California courts have been creating little in the way of clarity when it comes to the employment status of gig workers — and a recent federal court decision in Lawson v. Grubhub illustrates how status may change with the winds of litigation, offering four takeaways for businesses that rely on delivery drivers, say Esra Hudson and Marah Bragdon at Manatt.

• Labor Collusion Loss Will Shape DOJ's Case Strategy

  

  Following the U.S. Department of Justice’s recent loss in United States v. Manahe, tallying its trial score record to 0-3 in labor-related antitrust cases over the past year, defendants can expect that the DOJ will try to exclude defense evidence and argue for more favorable jury instructions, say attorneys at Sheppard Mullin.

• Staffing Company Considerations Amid PAGA Uncertainty

  

  The impending California Supreme Court decision in Adolph v. Uber is expected to affect staffing companies, specifically how the proliferation of nonindividual Private Attorneys General Act claims are handled when the individual claim is compelled to arbitration, say Sarah Kroll-Rosenbaum and Harrison Thorne at Akerman.

• Eye On Compliance: Joint Employment

  

  Madonna Herman at Wilson Elser breaks down the key job conditions that led to a recent National Labor Relations Board finding of joint employment, and explains the similar standard established under California case law — providing a guide for companies that want to minimize liability when relying on temporary and contract workers.

• How Unions Could Stem Possible Wave Of Calif. PAGA Claims

  

  Should the California Supreme Court hold in Adolph v. Uber that the nonindividual portions of Private Attorneys General Act claims survive even after individual claims go to arbitration, employers and unions could both leverage the holding in Oswald v. Murray to stifle the resurgence in representative suits, say attorneys at Greenberg Traurig.

• Tips For Defending Employee Plaintiff Depositions

  Excerpt from Practical Guidance

  

  A plaintiff cannot win their employment case through a good deposition, but they can certainly lose it with a bad one, so an attorney should take steps to make sure the plaintiff does as little damage as possible to their claim, says Preston Satchell at LexisNexis.

• Predictions On Salary Levels In Proposed DOL Overtime Rule

  

  In May, the U.S. Department of Labor is expected to propose new salary thresholds for overtime exemptions for both executive, administrative and professional employees and highly compensated earners under the Fair Labor Standards Act, and based on methodologies used in recent DOL rules, it will likely increase both thresholds, says Stephen Bronars at Edgeworth.

• Water Cooler Talk: Whistleblowing Insights From 'Dahmer'

  

  Tracey Diamond and Evan Gibbs at Troutman Pepper chat with DS Smith's Josh Burnette about how the show "Dahmer – Monster: The Jeffrey Dahmer Story" provides an extreme example of the perils of ignoring repeat complaints — a lesson employers could apply in the whistleblower context.

• Retail Employer Strategies For LA Fair Work Week Ordinance

  

  The recently effective Los Angeles Fair Work Week Ordinance changes how employers in the retail trade industry approach scheduling and hiring employees, so they should consider creating new standardized forms and procedures to maintain compliance and avoid penalties, say Thomas Petrides and Charlie Wang at Vedder Price.

• AI For Advancing Diversity In The Workplace: Friend Or Foe?

  

  In the wake of calls for increased workplace diversity, employers are turning to artificial intelligence to automate hiring and cut costs to reach environmental, social and governance objectives, but this technology requires human oversight to minimize biases and discrimination, say Consuela Pinto and Dawn Siler-Nixon at FordHarrison.

• Handbook Hot Topics: Attendance Policies

  

  Employee attendance problems are among the most common reasons for disciplinary action and discharge, which is why a clear policy neatly laid out in an employee handbook is necessary to articulate expectations for workers and support an employer's position should any attendance-related disputes arise, says Kara Shea at Butler Snow.