This week, the California Supreme Court rejected the old “totality of circumstances” test to determine if a worker was properly classified as an independent contractor in favor of a new “ABC test” under which employers will be required to classify most workers as employees.
Given the ever-increasing reliance on digital technology, employees are more and more tethered to their smartphones – checking email during their commute, at the dinner table, and even from their beds – essentially creating a never-ending work day. A bill filed by a New York City councilman aims to curtail this trend. The bill, introduced on March 22, 2018, would prohibit employers in the city of New York from requiring employees to check and respond to work-related electronic communications outside of usual work hours.
Over the next two weeks we will release our Year in Review segment, which will look at the key labor & employment law developments from 2016 in New York, the DC Metro Area, Massachusetts, and California while offering our thoughts about 2017. Today we kick off this segment with New York. In addition, please join us in NYC on April 6, 2017 for Mintz Levin’s Third Annual Employment Law Summit as we address some of the key labor & employment issues impacting employers in 2017. Register here.
2016 brought big changes for New York State and City employers, including expansive new discrimination protections and substantial increases in the minimum wage and exempt salary thresholds. While New York employers who successfully navigated 2016’s rush of legislative, regulatory and judicial obstacles might feel they’ve earned the right to shift their focus back from compliance issues to running their businesses, they should not lose sight of the additional challenges expected in 2017.
The Fourth Circuit recently ruled that a general contractor was the joint employer of employees of its subcontractor for purposes of the Fair Labor Standards Act. Salinas v. Commercial Interiors, Inc. has broad implications for the wage and overtime responsibilities of employers located within the Fourth Circuit, which has jurisdiction over appeals from federal courts located in Maryland, Virginia, North Carolina, South Carolina, and West Virginia.
Recently, Wage and Hour Division (WHD) Administrator David Weil announced that the DOL would issue an “administrator interpretation” letter early this summer on how an employer can best address whether an individual qualifies as an independent contractor. While the Supreme Court held earlier this year that such government agency interpretive guidance is not subject to notice and public comment and therefore, does not carry the “force and effect of law,” the guidance is nevertheless welcome in providing clarification on a difficult and ambiguous area of law.
Recently, in Hargrove v. Sleepy’s, LLC, the New Jersey Court issued a unanimous decision raising the bar for New Jersey employers seeking to classify individuals as independent contractors under New Jersey’s Wage Payment Law (governing time and mode of wage payments) and New Jersey’s Wage and Hour Law (governing minimum wage and overtime). The court adopted the so-called “ABC” test; a test derived from New Jersey’s Unemployment Compensation Act and arguably the most stringent test for employers to uphold independent contractor classifications.
Written by Michael Arnold
This summer, those (31?) of us who watched Chris Pratt steal scene after scene in Parks & Recreation saw him ripen into the star we always hoped he’d become. First he charmed audiences as the voice of Emmett in the Lego Movie (you know, the one that easily broke the record for most references that went over your kid’s head in a G-rated movie). Then he dazzled audiences as Peter Quill, the fun-loving action hero, in the top-grossing movie of the summer Guardians of the Galaxy. Overall, an unexpected, but welcomed surprise.
Also unexpected, but a welcomed surprise: the California Supreme Court siding with an employer in a wage and hour class action case.
Written by Michael Arnold
Am I wrong for thinking out the box from where I stay?
Am I wrong for saying that I choose another way?
Those are the opening lyrics to Nico & Vinz’s (catchy would be an understatement) summertime hit “Am I wrong.” The music stations play it so often that my car radio now just automatically turns off in protest. You can listen to the song here if you like, but just remember, it’s sorta like eating a Lay’s potato chip. You know who is probably belting out the opening lyrics to this song as I type? FedEx executives after the loss they just suffered in the 9th Circuit.
Written by Jessica Catlow
Do you still think that business owners aren’t responsible for wage and hour law violations? Do you think that a court will only award liquidated damages where the violation is wilful? Think again. Following an investigation into certain residential treatment facilities for the elderly, disabled and mentally ill, the DOL obtained a default judgment against the husband and wife owners of the facilities for various wage and hour violations under the Fair Labor Standards Act, including an award of liquidated damages.