Uber Willing to Pay $100 Million to Keep Its Drivers Classified as Independent Contractors

Posted in Independent Contractors

Recently, Uber announced that it agreed to pay drivers in California and Massachusetts $100 million in an effort to ensure that the drivers are considered independent contractors, not employees. In just six years, Uber has expanded from its base in San Francisco to over 300 cities across the world. With more than 450,000 drivers using the company’s app each month in the U.S. alone, a determination that its drivers were misclassified as independent contractors rather than employees could be extremely costly for the ride-sharing company, currently valued at $62.5 billion.

The debate concerning the correct classification for these freelancing drivers has grown in recent months, with drivers in states including Georgia, Pennsylvania, Texas, Florida, and Oregon claiming that they are employees of Uber entitled to the protection of federal and state employment and labor laws. In response to these claims, Uber argues that it simply connects independent drivers with passengers and has no other form of control over drivers who use its service.

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Have You Trained Your Supervisors on Wage & Hour Compliance?

Posted in Off-the-Clock

When sexual harassment lawsuits started becoming a major liability issue for employers, many employers sensibly responded by requiring their supervisory employees to go through mandatory anti-harassment training. There is at least some data to suggest that training and other preventive measures have done some good. For example, statistics published on the EEOC’s website (here and here) show a more-or-less steady decline in the number of harassment charges filed with the agency each fiscal year, from a high of 15,889 charges in FY1997 to just 6,822 charges in FY2015.

If sexual harassment lawsuits were the hot topic in employment law a decade or two ago, today it’s wage and hour law. Why? Wage and hour violations don’t require proof of motive or intent. They are easier for plaintiffs to prove, and harder for employers to defend against. The amounts due are often fairly easy to calculate or estimate, and wage and hour violations frequently affect entire classes of employees rather than just individuals. And, unfortunately, the law is deceptively complicated, leading to frequent screw-ups by even well-intentioned employers.

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Supreme Court Upholds $5.8 Million Judgment Based on Statistical Analysis

Posted in Supreme Court

On Tuesday, March 22, 2016, the United States Supreme Court affirmed a $5.8 million dollar judgment against Tyson Foods Inc. in a class and collective action filed by workers claiming uncompensated time donning and doffing time.  Contrary to what many predicated given the trend in class action rulings, the Court upheld the workers reliance on statistical analysis that used average time estimates to determine overtime owed for class recovery. Continue Reading

DOL OT Exemption Rules DOA? Federal Wage Theft Legislation? Probably Not ...

Posted in *New Exemption Rules

In a move that should surprise precisely no onecapitol-hill-building who has been paying attention to current U.S. politics, GOP lawmakers in the U.S. House and Senate introduced legislation to block the U.S. DOL’s anticipated overtime exemption rules, just two days after the DOL sent the final rule to the Office of Management and Budget. OMB review is typically the final stage before publication of a new rule.

The legislation, dubbed the “Protecting Workplace Advancement and Opportunity Act,” would:

  • Void the DOL’s new rules;
  • Allow the DOL to publish updated rules only after conducting a detailed analysis of the rules’ impact on small business, non-profit and public employers;
  • Bar the DOL from adopting rules that provide for automatic adjustments of the minimum salary level without going through a formal notice and comment rulemaking process;
  • Require any proposed changes to the “duties” tests for the overtime exemptions to be published and subject to public notice and comment.

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Possible Final New Overtime Rule Before July

Posted in *New Exemption Rules, DOL News

Just a few weeks ago, we posted our latest update  on the Department of Labor’s proposed new overtime rule, which calls for a more than doubling of the salary level threshold for white collar exempt positions. At that time, we reported on the House Education and Workforce Committee’s renewed inquiry into the DOL’s outreach efforts, which some saw as an attempt by Congress to somehow delay or affect the issuance and implementation of the final rule.

Perhaps in an effort to avoid further delay, the DOL recently sent its proposed rule to the White House Office of Management and Budget for review, ahead of the expected schedule. So now, instead of an anticipated final rule date of July, it is possible that we could see a final rule in April or May.  Like much of what happens in Washington these days, it is likely that the timing of the rule is politically motivated and connected to the Presidential election.  Given the timing of the Congressional legislative review process, it is possible that if the regulation is issued after mid-May, there is risk of reversal, particularly if a Republican candidate is elected President.

As always, we will continue to provide updates on this important legislative initiative as we get closer to the issuance of a final rule.

Unreported Working Lunches May Still Be Work Time

Posted in Breaks and Meal Periods

quick lunch in the office - bun and fresh grapes

Back in December, we wrote about a case involving the Chicago Police Department, in which officers alleged that they were owed additional overtime for time spent responding to calls and messages on their Blackberry devices, but which they failed to report in accordance with Police Department procedures. The court ruled for the City, holding that while the officers may have worked hours for which they weren’t paid, the City was not liable because it did not have actual or constructive knowledge of the uncompensated work. It was a clear win for the City and for employers in general. But before anyone gets carried away, they should read a subsequent decision from another judge in the Northern District of Illinois that illustrates the limits of the idea that employers are not on the hook for work they don’t know about.

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Continued Controversy Surrounding The Proposed New Overtime Rule

Posted in *New Exemption Rules, DOL News

Since June, we have written a number of posts covering the Department of Labor’s proposed new overtime rule (see our posts here), and the more than doubling of the salary level threshold for white collar exempt positions. The proposed increase in the salary threshold was quite polarizing and resulted in nearly 300,000 comments. Despite the number of comments, in September, the DOL reported to the House and Senate that it would not extend the 60-day public comment period. At that time, the DOL expressed the belief that it “produced a quality regulation” resulting from the public outreach the Department conducted between March 13, 2014, when President Obama directed the agency to update its regulations, and September 4, 2015, when the public comment period ended. Apparently, not satisfied with this response, on February 12th, the House Education and Workforce Committee renewed its inquiry into the DOL’s outreach efforts, requesting that the DOL provide evidence of meetings, telephone calls, and other communications demonstrating the DOL’s outreach activities. This request signals an attempt by some members of Congress to somehow delay or affect the issuance and implementation of the final rule. We will continue to provide updates on the proposed new rule as the anticipated date of issuance approaches.

City Not Liable For Chicago Police Officers' Blackberry Work Time

Posted in Litigation, Off-the-Clock, Overtime

Close up of lights on police carIf a tree falls in the forest but there is no one around to hear, does it make a sound? If a non-exempt worker answers an e-mail message after hours on her Blackberry but fails to put in for overtime, has she performed compensable work? While I’m not aware of any firm legal authority on the first question, a recent ruling by the U.S. District Court for the Northern District of Illinois offers a detailed and instructive analysis of the second. 

In Allen v. City of Chicago, a group of 51 of current and former officers in the Chicago Police Department’s Bureau of Organized Crime (“BOC”)  alleged that the City willfully violated the FLSA by requiring them to use their Blackberry devices for work-related communications while they were off duty without compensation. 

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The NLRB's New Target: FLSA Settlement Agreements

Posted in DOL News

The National Labor Relations Board (“NLRB” or the “Board”) has once again weighed in on employer use of confidentiality and non-disparagement language, this time in the settlement arena. Recently, the NLRB withheld its approval of a global settlement of Fair Labor Standards Act (“FLSA”) claims and Board charges, stating its objection to the negotiated non-disparagement and confidentiality provisions in the parties’ settlement agreement.

The employer, Liberato Restaurant, agreed to a $1 million settlement of an FLSA class action lawsuit brought by current and former employees who alleged non-payment of tips and overtime wages.  As part of the settlement, plaintiffs agreed to dismiss charges filed with the NLRB. The settlement agreement included promises by both parties to not disparage the other and not to disclose the terms of the agreement to the public. Such provisions are routinely included in settlement agreements, and have been accepted in settlements involving wage and hour claims.

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