Who’s The Boss? The Department of Labor’s Effort to Expand Joint Employer Liability Under the FLSA

By Kate S. Gold and Philippe A. Lebel

On January 20, 2016, the U.S. Department of Labor’s (“DOL”) Wage and Hour Division issued an Administrator’s Interpretation (“Interpretation”) significantly expanding the definition of a “joint employer” under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq. The DOL’s new approach, which relies in part on regulations promulgated under the Migrant and Seasonal Worker Protection Act (“MSPA”), 29 U.S.C. §§ 1801, shifts the focus of the analysis toward “economic realities.” If followed, the DOL’s approach potentially expands liability for wage and hour violations such as overtime pay to entities that do not directly employ workers, but that have contracted with third parties for labor.

In the introductory paragraphs of the Interpretation, the DOL implies its motive in promulgating the new standard is to protect a larger number of workers and to … Read More »

Employers Should Not Rely on Employer Handbooks to Create Enforceable Arbitration Agreements

Posted on January 21st, by Editor in Audits/Due Diligence. No Comments

By Vik C. Jaitly

In a recent published opinion, the New Jersey Appellate Division held that an arbitration clause in an employee handbook was unenforceable because the handbook also contained standard disclaimer language stating that the handbook did not create an employment contract. The Court’s decision, in Morgan v. Raymours Furniture Co., Slip Op. A-2830-14T2, 2015 WL 9646045 (N.J. App. Div. Jan. 7, 2016), makes clear that arbitration agreements should ideally be separate, stand-alone documents, not provisions in employee handbooks.

On three occasions during the course of his employment with defendant Raymours Furniture Company (“Raymours”), plaintiff Grant Morgan acknowledged receipt of an employee handbook. The handbook included a mandatory arbitration clause and a waiver of the employee’s right to sue in court. According to Morgan, after he complained about age discrimination in the workplace, Raymours presented him with a separate, stand-alone arbitration … Read More »

Don’t Labor Under New Laws — What Employers Need to Know About 2016 California Labor Laws

By Mark Terman

*Originally published by CalCPA in the January/February 2016 issue of California CPA — the original article can be found here.

Many California employers feel over-regulated—and under-appreciated. Yet, surprisingly, proposed new regulation of employers has declined. In 2015, 224 bills introduced in the California Legislature mention “employer,” compared to 574 in 2014. Most of those bills did not pass, and of the ones that did, most were not signed into law by Gov. Brown. One veto blocked a bill (AB 465) that would have made pre-dispute arbitration agreements made as a condition of employment—the kind that are in widespread use across the state—unlawful. Another veto rejected a bill (AB 676) reintroduced this year that would have penalized employers for limiting job prospects of, or discriminating against, applicants who are not currently employed.

Key elements of some of the bills that became … Read More »

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California Supreme Court Ruling on Right to Statewide Discovery in PAGA Actions Is Not as Bad for Employers as It Looks

By Ramon A. Miyar & Jaime D. Walter

In a blow to the defense bar—and, in particular, retail employers—the California Supreme Court, in Williams v....

Part V of “The Restricting Covenant” Series: Lawyers and Law

By Lawrence J. Del Rossi

This is the fifth article in a continuing series, “The Restricting Covenant.” I originally thought this article would contain, at...

Department of Labor to Begin Issuing Opinion Letters, Again

By Mark J. Foley and Vik C. Jaitly

Secretary of Labor, Alexander Acosta, recently announced that the Department of Labor (DOL) will resume issuing opinion...