Employers beware. A recent case serves as a reminder as we wind down the calendar year that employers should closely review their policies and procedures applying to employees paid on a 100% commission or draw basis. In Stein v. HHGreg Stores, the United States Appeals Court for the Sixth Circuit ruled that, while a retail employer’s draw on future commissions to meet minimum wage requirements was lawful, the company policy requiring repayment for outstanding draws after an employee had been terminated was not.
Today we continue with our Year in Review segment, which looks at the key labor & employment law developments from 2016 in New York, the DC Metro Area, Massachusetts, and California, while offering our thoughts on 2017. Last week we covered New York and the DC Metro Area. Now we turn to Massachusetts. 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 Massachusetts Employment Law Year in Review
From case law interpreting one of, if not, the most employee-friendly independent contractor statute in the country to Beacon Hill’s efforts to pass non-competition agreement reform, Massachusetts is certainly no stranger to key developments in the labor and employment arena. This blog post highlights the 2016 case law and legislative efforts about which every Massachusetts employer should be aware, and provides insight over what to watch for as we move our way along through 2017 and beyond.
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 Massachusetts Attorney General’s Office Fair Labor Division has joined a multistate effort questioning retail stores’ use of “on call” shifts. Last week, the Massachusetts AG’s Office teamed up with its counterparts from New York, California, Connecticut, the District of Columbia, Illinois, Maryland, Minnesota, and Rhode Island to send requests for information regarding “on call” shifts to 15 national retailers with locations in Massachusetts. The letters (see an example here) cite to concerns over the toll that “on call” shifts can have on employees, including difficulty making reliable child-care arrangements and obstacles to pursuing an education or a second job.
The United States Supreme Court ruled Tuesday that Tyson Foods employees could use representative evidence to establish liability and damages for class certification purposes. The opinion gives the plaintiffs’ class action bar a second victory in the Court’s current term, albeit a far narrower one than many commentators had feared. (We covered the first victory here.) Perhaps, more importantly, the Court sidestepped a seemingly more controversial issue regarding whether a class may include uninjured class members. That issue will have to be decided another day. We analyze the Tyson Foods opinion below.
Continue Reading Taking an Evidentiary Approach, the Supreme Court Rules that Employees Can Use Representative Samples to Establish Classwide Liability and Damages, But It Leaves Open Question of Whether Classes Can Include Uninjured Class Members
Is the pick-off strategy to moot class actions still alive in the Southern District of New York? Possibly.
Last month, we wrote about the Supreme Court’s opinion in Campbell-Ewald Co. v. Gomez, in which the Court ruled that “an unaccepted Rule 68 Offer of Judgment for complete relief does not moot a plaintiff’s individual and class action claims.” While that decision was welcome news and remains welcome news for employees because it all but eliminated the employer-favored named plaintiff “pick-off” strategy, the Supreme Court did appear to leave open the possibility that employers could still pick off a named plaintiff in other ways: by either actually paying them the amounts allegedly owed, or similarly, by depositing the money with the court to be released to the plaintiff upon dismissal of the action. Just weeks later however, a New York Federal Court addressed this residual issue – the result: more welcome news for employees.
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.
Being a headliner is great but nothing beats being tapped as the opening act. Join me and my panel of corporate counsel and human resources professionals as we warm up the audience at Mintz Levin’s Second Annual Employment Law Summit.
The warm up for our headliner, Carmelyn P. Malalis, Commissioner and Chair of the New York City Commission on Human Rights (who will be addressing new protections and new initiatives in the New York City Human Rights Law), may have a swanky title (“Managing Workplace Policies in a Rapidly Changing Regulatory Environment”) but it will be grounded in practicality.
Today’s workforce is mobile, virtual, transient and litigious. What is a reasonable employer to do? Should multi-jurisdictional employers practice “most-favored” diplomacy? Or should they continue to stitch together a patchwork of employment policies?
Join us in New York on January 28 as our panel tackles these and other challenging issues. You can read more about these issues in advance of the seminar here.
By now, many of you have heard about our firm’s Second Annual Employment Law Summit in New York on Thursday, January 28th. The event features a keynote address by Carmelyn P. Malalis, Commissioner and Chair of the New York City Commission on Human Rights, and it also covers a variety of current employment-related topics.
You won’t want to miss my presentation, entitled “Affordable Care Act Reporting Requirements in Plain English,” which is particularly timely. While the IRS recently gave employers a modest reprieve (only a few months), much remains to be done in a relatively short period of time –an issue I recently addressed on this blog. I’d also encourage you to check out my 5 predictions about how compliance with the ACA reporting rules will unfold.
I look forward to seeing you on the 28th in New York.
PS—If you are not already subscribed to our blog, I invite you to do so here. We are planning to continue our weekly posts on the practical, real-world challenges and issues that employers and their advisors face as they navigate the Affordable Care Act.