As all HR professionals and employment lawyers know (even those currently living under rocks), the Department of Labor’s final overtime rule is scheduled to go into effect on December 1, 2016 – less than two weeks from now. The DOL published the rule back on May 18, 2016 providing employers with nearly 200 days to come into compliance. Many have planned accordingly and are ready to go; others are finally focusing on this issue as the deadline nears. At the same time, questions continue to arise over the rule’s fate. In this post, we discuss the current state of play along with some compliance tips for employers.
Gauri Punjabi is an Associate in the firm’s Boston office. She represents clients in employment litigation related to discrimination claims, noncompetition and trade secret issues, and employment contracts, and advises small businesses, large corporations, and nonprofit organizations on discrimination claims brought under federal, state, and local laws and regulations. In addition, Gauri counsels clients on issues including employee terminations, workplace policies, exempt and nonexempt classification, wage and hour issues and audits, and affirmative action plans. She has also provided training on employment laws and workplace diversity to her clients’ management and staff.
The U.S. Equal Employment Opportunity Commission (EEOC) recently entered the Browning-Ferris saga, filing an amicus brief in support of the new joint employer test articulated by the National Labor Relations Board (NLRB) in August 2015. Drawing comparisons to its own joint employer test, the EEOC urges the D.C. Court of Appeals to uphold the NLRB’s pliable, fact-specific test to determine whether an entity sufficiently controls the terms and conditions of an individual’s employment to be a joint employer.
Recently, the Massachusetts Commission Against Discrimination (MCAD) published guidance on gender identity discrimination, which the Massachusetts Fair Employment Practices Act (commonly known as “Chapter 151B”) has prohibited since July 1, 2012. The guidance and statute, however, simply codify the position MCAD has taken since 2001.
Relying on its precedent, the First Circuit Court of Appeals held for the second time this year that the Federal Aviation Administrative Authorization Act of 1994 (“FAAAA”) preempts application of the Massachusetts Independent Contractor Statute, M.G.L. c. 149, Section 148B, to couriers working for Federal Express and other same-day delivery companies. As a result, these companies can continue to save billions of dollars each year in the costs associated with employees, such as overtime, health benefits, and workers compensation insurance
As a recent federal appellate decision confirmed, the Americans with Disabilities Act does not require employers to always accommodate a disabled employee. Instead, it is the employee’s burden to first show that he or she can perform the essential functions of the job with said accommodation. Alternatively, if the employee cannot perform the essential functions of the job, he or she may seek, as a reasonable accommodation, a reassignment to a vacant position as long as the employee is qualified for that position. In both cases, the employer is relieved of the accommodation requirement if it can show an undue hardship would result. It was these essential function and vacancy issues that were the focus of the First Circuit’s opinion in Lang v. Wal-Mart Stores.
Last Thursday, Uber settled two closely-watched class actions contesting Uber’s classification of approximately 385,000 drivers in California and Massachusetts as independent contractors as opposed to employees. While the plaintiffs viewed the settlement as a victory, so likely did Uber, as it allows Uber to continue to pursue an on-demand independent contractor service business model. The court, however, still needs to approve the settlement and whether it will do so is not clear. Continue Reading Uber Aims to Settle Two Class Actions; Approximately 385,000 Uber Drivers in California and Massachusetts to Remain Independent Contractors – At Least for Now
As a general principle, an employee alleging employment discrimination has an affirmative obligation to mitigate his or her lost wages by making a good faith effort to secure alternative employment. The employer however, bears the burden of proving that the employee failed to make such an effort. A recent decision from the D.C. district court reminds us that the employer’s burden is not as onerous as it sounds.
An unaccepted Rule 68 Offer of Judgment for complete relief does not moot a plaintiff’s individual and class action claims said the Supreme Court on Wednesday. The decision in Campbell-Ewald Co. v. Gomez is welcome news for employees and the class action bar, but it does not necessarily foreclose a “pick off” strategy often used by employers to head off class actions before they materialize. Like it did in Genesis Healthcare nearly three years ago, the Supreme Court only went so far with its analysis, and this time in Gomez, while effectively ending the Rule 68 method, it left open the possibility that employers could pick off named plaintiffs by actually paying them the amounts allegedly owed.
Non-disparagement provisions are commonplace in today’s settlement and separation agreements, with employers often seeking the broadest protection against disparagement. A recent decision from a New York federal court, however, suggests that such provisions may have their limits in connection with wage and hour settlement agreements. Even a non-disparagement provision that is mutual and agreed upon by all the parties may be struck down if it is so overbroad as to violate the FLSA’s compliance objectives according to the court in Santos v. El Tepeyac Butcher Shop Inc.
A recent Colorado federal court decision serves as a good reminder to employers on how not to obtain a release of claims from a terminated employee. For starters, don’t tell the employee her job is being eliminated and then run an advertisement seeking to fill her position. Actions like those may serve to invalidate the release of claims you obtained from the employee.