Wage/Hour Class Actions - Page 8 of 14

New York City Enacts Predictable Scheduling Law

On May 30, 2017, New York City Mayor Bill de Blasio signed legislation regulating employee schedules in the retail industry. The new “predictable scheduling” law, which is set to take effect on November 26, 2017, prohibits “on-call” shifts and otherwise limits employer flexibility in creating work schedules.

Employers Covered By the Law

The law applies to any “retail employer,” which is defined as an employer: (1) with at least 20 employees (including fulltime, part-time and temporary employees); and (2) that is primarily engaged in selling “consumer goods” at a store or stores in New York City. The law defines “consumer goods” as “products that are primarily for personal, household, or family purposes, including but not limited to appliances, clothing, electronics, groceries, and household items.”
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The Unanswered Question: Do “Call-In” Schedules Trigger California Reporting Time Pay Obligations?

On June 8, 2017, plaintiffs Mayra Casas and Julio Fernandez (“Plaintiffs”) filed an unopposed motion seeking approval of a $12 million settlement reached against defendant Victoria’s Secret Stores, LLC (“Victoria’s Secret”) in a closely watched case challenging the legality of Victoria’s Secret’s “call-in” scheduling practices. The case, Casas v. Victoria’s Secret Stores, LLC, was pending before the Ninth Circuit Court of Appeals at the time the parties’ settled the case, and was one of many currently pending class action lawsuits challenging similar practices by retailers. As a result of the parties’ settlement, the ultimate question in Casas remains unanswered: Are employees who are required to call their employer to determine if they are required to show up for call-in shifts entitled to reporting time pay?

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Donald Trump’s Labor Secretary Revokes Obama-Era DOL Joint Employer and Independent Contractor Guidance

On June 7, 2017, U.S. Secretary of Labor Alexander Acosta announced that the U.S. Department of Labor (DOL) is withdrawing two major pieces of informal guidance issued during the Obama administration, pertaining to joint employment and independent contractors under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq.

The two Administrator Interpretations Letters were issued by the former head of the DOL’s Wage and Hour Division, David Weil. The first guidance letter, Administrator’s Interpretation No. 2015-1, took an aggressive position regarding misclassification of employees as independent contractors. It stressed that the “economic realities” of worker-employer relationships were paramount—i.e., whether, as a matter of economic reality, a worker was dependent on the putative employer—and suggested that most workers should be classified as employees. Although it relied on case law, the Administrator Letter provided additional refinements and, significantly, de-emphasized consideration of “control”—a major element under most common law tests.

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Suit Shopping: Deceptive Pricing Class Actions Persist

Kate Gold published an article, along with Kathryn Deal, Meredith Slawe, Kate Villanueva, Dan Brewer and Ashley Super titled, “Suit Shopping: Deceptive Pricing Class Actions Persist” for the California Retailers Association’s Golden State Report.

Recent years have seen a considerable increase in deceptive pricing litigation, with plaintiffs’ attorneys turning to untried theories to help advance their cases. As a result, retailers are facing more high-risk class action suits that could lead to significant exposure, reputational damage, and considerable litigation costs. The article details two potential sources of suits—compare-at pricing and shipping charges—and how courts and agencies have thus far responded to such matters.

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Preparing for the Future of the Overtime Eligibility Rule

One of the most significant wage and hour actions of the Obama administration—promulgating a new rule on overtime eligibility—remains frozen in legal limbo as the Trump administration decides whether to repeal and replace it or propose an alternative solution. With such uncertainty, what should employers do to ensure they are in compliance when the Trump administration finally takes action?

First, employers need to understand why the new overtime rule is not in effect. A federal district judge in Texas stayed the rule’s implementation on November 22, 2016, just nine days before it would have become effective nationwide. The judge held that the Department of Labor exceeded its regulatory authority by establishing a salary threshold under which employees were automatically overtime eligible regardless of their job duties. The Department of Justice appealed that decision, and the Texas AFL-CIO filed a pending motion to intervene in the event the Trump administration decides not to challenge the judge’s decision in the appeal’s court. After obtaining two filing extensions, the DOJ has until May 1 to file a brief stating its position on the appeal.

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Trump’s Supreme Court Nominee Will Likely Be Key Vote in Class Action Waiver Dispute

The United States Supreme Court finally agreed earlier this year to resolve whether the National Labor Relations Act (NLRA) prohibits class action waivers in employee arbitration agreements. This ruling will have an immediate and far ranging impact on employers. The Trump presidency will likely play a crucial role in the outcome of what will be the first of many challenges to the expansive federal agency policies under the former Obama administration.

Employers have increasingly required employees to sign agreements to have their employment disputes resolved through private arbitration rather than through a lawsuit in state or federal court. The most critical aspect of these agreements has been the provisions by which the employee agrees to resolve his or her dispute on an individual basis rather than by means of a class action. When enforced, class action waivers are a potent weapon to stem the tide of wage and hour and employment discrimination class actions, which otherwise can result in claims involving thousands of workers and multimillion dollar settlements.

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