Wage & Hour

Expert Analysis

• Employers Must Prioritize Pay Equity

  

  The recent federal and state trend toward strengthening equal pay laws is sure to gain momentum, so it is now more important than ever before for employers to develop pay equity strategies, says Erin Connell at Orrick.

• How New Mass. Family Leave Interacts With Existing Laws

  

  As Massachusetts employers consider employee requests for benefits under the state's recently effective paid parental and family leave program, they must also evaluate how the law intersects with other leave requirements, such as the federal Family and Medical Leave Act and the Massachusetts Parental Leave Act, says Stéphanie Smith at Casner & Edwards.

• Grocery 'Hero Pay' Mandates Are Unfair And Likely Illegal

  

  Though recently passed ordinances mandating "hero pay" for certain grocery store workers in California and Washington are well-intentioned, they do not protect essential workers equally and are likely illegal, says Anthony Caso at Chapman University's Fowler School of Law.

• How To Track Remote Employee Pay Reasonably And Fairly

  

  As remote work complicates Fair Labor Standards Act compliance, employers would do well to remain up to date on what constitutes reasonable diligence in monitoring overtime, minimum wage and other compensation issues, say Daniel Stern and Elizabeth Voss at Dykema.

• A Look At Worker Classification As Calif. Faces $15 Min. Wage

  

  With the $15 per hour minimum wage looking like a done deal in California, companies with employees at or near the current earnings threshold to qualify for exemptions may find that in some cases, reclassifications make sense, say Mark Kemple and Anthony Guzman at Greenberg Traurig.

• What The Biden Presidency Means For Class Actions

  

  With Democrats now controlling Congress and the White House, class action litigation may flourish in the coming years — which will be good both for consumers and for well-behaving companies who would otherwise lose market share and profits to unpoliced cheaters, says Daniel Karon at Karon LLC.

• Employer Takeaways From Latest NY And Federal Guidance

  

  New York employers would do well to reexamine compliance on family leave and anti-discrimination accommodations following the recent release of guidance over state COVID-19 policies and federal regulation on vaccines, says Jonathan Trafimow at Moritt Hock.

• Drafting Exec Bonus Language That Won't Spark Litigation

  

  Recent cases in New York and Florida illustrate that when drafting annual bonus provisions for executives, it is essential for all parties to ensure that the language does not create any ambiguity under the common law of contracts and complies with Section 409A of the Internal Revenue Code, says Steven Sholk at Gibbons.

• Virus Mitigation Steps For Employers Amid OSHA Ramp-Up

  

  New, stronger Occupational Safety and Health Administration guidance under President Joe Biden leaves no doubt that the agency expects employers to involve employees directly in developing programs for COVID-19 infection prevention, and the time for employers to reexamine current measures is now, say Robert Nichols and Caroline Melo at Bracewell.

• Will 5th Circ. FLSA Certification Framework Help Employers?

  

  The Fifth Circuit's recent decision in Swales v. KLLM announced a more rigorous gatekeeping method for district courts to use when deciding whether to send notice to potential claimants in Fair Labor Standards Act collective actions, but for employers the value of avoiding sending notice may not be worth the expense of early discovery, say Margaret Allen and Tayler Bragg at Sidley.

• How To Ensure Employees Receive Class Action Notices

  

  Ineffective or inappropriate notice can violate constitutional rights of class members in wage and hour actions, which means texts, emails, social media, workplace postings and in-person deliveries are worth exploring as alternatives or additions to postage, especially when high employee turnover or a transient workforce is involved, say Christine Webber and Brian Corman at Cohen Milstein.

• ABC Test Retroactivity Remains An Open Issue After Vazquez

  

  The California Supreme Court's decision last month in Vazquez v. Jan-Pro Franchising International, that the ABC test for independent contractor classification adopted in Dynamex applies retroactively, overlooks whether the 2018 decision retains any independent force after the passage of A.B. 5, say James Speyer and Vanessa Adriance at Arnold & Porter.

• Rulemaking Isn't The Answer To NLRB Policy Oscillation

  

  Recent activity at the National Labor Relations Board, such as the Trump administration's failed attempt to end Obama-era representation-case procedure, has not slowed the policy pendulum and shows that opting for rulemaking over adjudication poses the risk of judicial backlash, say former NLRB Chairman Mark Gaston Pearce, now at the Georgetown Law Center, and Amanda Jaret at the United Food and Commercial Workers.