San Francisco is the latest to join a trend of authorities enacting ban-the-box legislation with an ordinance that supplements its “fair chance” law by, now, prohibiting employers from inquiring into marijuana use within California‘s marijuana-permissive law.
Source: San Francisco Ordinance No. 17-14.
Fun time speaking Friday 4-20-18 at CBA CLE’s spring conference for the CBA Labor and Employment Law Section, “Employment Law How-To: Hot Topics.”
Source: cle.cobar.org/HomeStudies/Product-Info/productcd/EM042018D
Interested in mediation, even in the context of labor relations (union matters)? Check out this article, including my thoughts, by Law Week Colorado.
Both federal law (the Fair Labor Standards Act, “FLSA”) and Colorado law (the Colorado Minimum Wage Act, the Colorado Wage Claim Act, and the Colorado Minimum Wage Order) exempt “interstate drivers.” Under FLSA, a driver can be considered “interstate” if she, like taxi drivers, is subject to the federal Motor Carrier Act, even where she drives only within the state. This means taxi drivers are not entitled to overtime under federal law.
In this case, the Colorado Court of Appeals affirmed the Colorado Department of Labor and Employment’s view that Colorado intended a stricter approach. According to the Court and the DOLE, Colorado’s overtime exemption does require that a driver actually drive across state lines as part of their job. Accordingly, the Court held, Colorado taxi drivers are entitled to overtime under state law, even though they would not be under federal law. As the Court explained, FLSA permits states to adopt stronger protections for employees than federal law. Here, the Court held Colorado did so because Colorado’s overtime exemption is worded slightly differently than FLSA’s.
Remaining issues include the applicability of this ruling to “gig” drivers, like those who drive through Uber or Lyft. Also, while this case has held that taxi drivers who don’t actually drive in and outside the state are entitled to overtime, it did not address whether other parts of Colorado wage law, including minimum wage requirements, also apply to such drivers.
Source: Brunson v. Colorado Cab Company, LLC, case no. 16CA1864 (1/8/18).
The United States Department of Labor (DOL) has revived its Payroll Audit Independent Determination (PAID) program, which is designed to allow employers who suspect they have violated the Fair Labor Standards Act (FLSA) to self-report the suspected violation and get the DOL’s take on the situation. Unfortunately that’s about all an employer gets.
The program is open to employers who suspect they’ve underpaid workers, unless the employer is already involved in an audit, litigation or has received a demand from an employee or their attorney. Unfortunately the DOL doesn’t say what happens if the employer self-reports and then receives the demand, does that kick the employer out of the PAID program?
We aren’t likely to find out because the PAID program offers very little real benefit to a self-reporting employer. On its face, it is supposed to allow an employer to self-report and, in doing so, self-identify their own calculations of backpay owed. If the DOL agrees, it will then process the payments to workers. Although that is likely helpful to mitigate against penalties — especially in cases that involve a large total amount at-issue, consisting of small payments to individual workers, incurred as a result of an inadvertent violation — participation in the program doesn’t result in either the employees or the DOL waiving future claims, audits, litigation, etc.
Participating in the program comes with an especially high price. In order to be eligible, the employer must effectively lay out a plaintiff’s case, by submitting the following information to the DOL (quoting the DOL):
specifically identify the potential violations,
identify which employees were affected,
identify the timeframes in which each employee was affected, and
calculate the amount of back wages the employer believes are owed to each employee.
Source: US DOL PAID program.
Historically courts have interpreted the overtime exemptions in FLSA (the Fair Labor Standards Act) narrowly in favor of employees. This “narrow construction” doctrine has made it difficult to treat employees who may be exempt as such unless they clearly fit an exemption. Now, the Supreme Court has rejected the “narrow construction” doctrine, ruling that it has not been “a useful guidepost for interpreting FLSA.”
The Supreme Court held that FLSA’s overtime obligations consist of two basic chunks of statutory language: The first requires employees to be paid overtime; the second chunk of language is a series of exemptions from that general rule. The Supreme Court held that FLSA provided courts with no basis for giving the first chunk of language any greater significance than the second chunk, in other words, to read the overtime requirement broadly at the expense of having to read the exemptions narrowly. Instead the Supreme Court held, both chunks of language should be given equal importance. The Supreme Court called this a “fair reading.”
Those exemptions are as much a part of theFLSA’s purpose as the overtime-pay requirement. See id., at ___ (slip op., at 9) (“Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage”). We thus have no license to give the exemption anything but a fair reading.
Having rejected the narrow-construction doctrine, and instead applying its fair-reading doctrine, the Supreme Court then held that, in this case, service advisors at the car dealership in question qualified for an overtime exemption under FLSA’s special exemption for salesmen at car dealerships.
It is likely this ruling will have substantial impact in all FLSA overtime cases. It will not be limited to the FLSA’s exemption for salesmen at car dealerships. Rather the fair-reading doctrine will substantially expand the reach of all of FLSA’s overtime exemptions.
Source: Encino Motorcars, LLC v. Navarro, case no. 16-1362 (2018).
In stark contrast to a trend of authorities that have begun to prohibit inquiries into salary histories, Michigan and Wisconsin have each now passed legislation that prohibits and preempts any effort within those states by local governments to enact such a prohibition.
While Wisconsin’s ban is more limited in nature, Michigan’s makes no effort to limit its ban to questions involving salary histories. It is a broad ban on any effort in the state to limit or mandate the type of questions asked on applications. Here is the operative language of Michigan’s law:
A local governmental body shall not adopt, enforce, or administer an ordinance, local policy, or local resolution regulating information an employer or potential employer must request, require, or exclude on an application for employment or during the interview process from an employee or a potential employee. This section does not prohibit an ordinance, local policy, or local resolution requiring a criminal background check for an employee or potential employee in connection with the receipt of a license or permit from a local governmental body.
There is a general requirement that parties not destroy evidence; bolstering that, there is a specific requirement in EEOC regulation 29 CFR 1602.14 that employers preserve personnel records for 1 year and that the parties in an EEOC charge preserve evidence until final disposition of the charge.
In this case, the EEOC and plaintiffs argued that an Excel file contained information that was allowed to be destroyed as the file was routinely updated. Additionally notes of a meeting were at-issue. The employer’s witnesses testified that they did not know how the records had been lost and, further, that, even if they hadn’t been destroyed, they had never contained evidence relevant to the case at-issue. The EEOC argued it should, nonetheless, be entitled to a presumption that the records would have been helpful to its case, and further that the jury should be so instructed. Such an instruction is called a “spoliation” instruction.
The Tenth Circuit reviewed its precedents and held that, first, a litigant must show the destroying party did so in bad faith. Merely allowing records to be destroyed is not sufficient to warrant a spoliation instruction. The EEOC responded that, unlike general litigants, it should, even despite the lack of bad faith, be entitled to a spoliation instruction because, whatever the employer’s intent had been, it had allowed the records to be destroyed in violation of that regulation. The Tenth Circuit rejected the argument that a spoliation instruction should be a remedy for such a violation absent bad faith, noting that was especially true where, as here, the EEOC and plaintiffs failed to produce any evidence countering the employer’s evidence that, if the records had been preserved, there was nothing helpful to the EEOC and plaintiffs in them.
Source: EEOC v. JetStream Ground Services, Inc., case no. 17-1003 (10th Cir. 12/28/17).
