Stokes Wagner Law Firm
Stokes Wagner

Determining whether a worker is properly classified as an employee or independent contractor can be difficult. California recently made this determination less challenging by providing a more rigid test.

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In 2011, the U.S. Department of Labor (“DOL”) introduced regulations affirming that tips are the property of the employee regardless if the employer uses a tip credit under the FLSA. Under this framework, only “customarily tipped employees” can receive distributions from a company tip pool. Tip pools set up by employers to include employees who are not regularly tipped employees are invalid. This limitation applies even where the employees contributing to a tip pool are paid the applicable minimum wage. Moreover, employers and management staff are precluded from receiving any portion of tip pools under the current regulation. The 2011 regulation has led to voluminous litigation over what constitutes a “customarily tipped employee” and has resulted in inconsistent rulings from various courts.

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The newest trend in Americans with Disabilities Act (“ADA”) lawsuits target businesses’ websites. Litigants have increasingly sued or threatened to sue under Title III, alleging that the website is not sufficiently accessible to the disabled (i.e., the website lacks assistive technology for individuals who are blind or hearing-impaired).

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The National Labor Relations Act (NLRA) protects the employee right to engage in “concerted activities for the purpose of . . . mutual aid or protection.” This includes not only the right to support a union, but also simply the right of employees to converse among themselves on issues affecting their employment. Consequently, any workplace rule explicitly infringing on this right, as well as any rule applied so as to cause such infringement, can be held unlawful. For example, if employees regularly get together before or after work, during which gripes and grievances (or unions) can be discussed, a workplace rule restricting these gatherings will generally be held unlawful.

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The #METOO movement took social media by storm in October 2017 as a means of illustrating the prevalence of sexual assault, harassment, and misconduct, particularly in the workplace. As the conversation around the #METOO movement swirls, employers have begun to assess how the movement affects their policies. Employers should stick to a simple three-part strategy: (1) promulgate a clear policy; (2) thoroughly investigate complaints; and (3) always respond accordingly and swiftly.

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On Aril 6, 2018, the U.S. Department of Labor announced amendments to the Fair Labor Standards Act (“FLSA”) § 3(m).

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In November 2017, the Ninth Circuit (covering California, Washington, Oregon, Nevada, Hawaii, Alaska, Idaho, Arizona, Montana) decided that the Fair Labor Standard Act’s (“FLSA”) hourly minimum wage requirement applies to weekly per-hour averages rather than actual per-hour pay. This means that the appropriate way to determine minimum wage compliance under the FLSA during any workweek is by calculating the pay earned during the entire workweek, rather than the pay earned in each individual hour of the workweek.

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The 2nd Circuit, covering Connecticut, New York, and Vermont, has revived a sex bias claim brought on behalf of Donald Zarda, a deceased skydiving instructor who was allegedly fired for telling a client he was gay. As an instructor at Altitude Express, Zarda sometimes mentioned his orientation in order to help female clients feel more comfortable when jumping, as they would be tied physically close to him during jumps. Zarda was fired after a boyfriend of one female client complained to Zarda’s boss that Zarda had inappropriately touched his girlfriend and mentioned he was gay. Zarda denied anything inappropriate and alleged that his dismissal was entirely because he said he was gay.

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On-call employees of fast food chain Yoshinoya claim they are owed reporting time pay when they call in for a shift but are not put to work. A L.A. Superior Court judge recently ruled that the plaintiffs may pursue their claims. This putative class of kitchen and cashier “on-call” employees call two hours before their scheduled shift to find out whether they are needed to work. If they fail to call in or do not show up for work when needed, they may face discipline. Plaintiffs claim that they are entitled to reporting time pay when they call in but are not put to work, even though they are not required to physically report to work.

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California’s New Parent Leave Act (S.B. 63), which requires small business employers (20-49 employees) to provide employees with 12 weeks of unpaid, job-protected parental bonding leave went into effect on January 1, 2018.

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