On September 1, 2021, Massachusetts Attorney General Maura Healey approved two potential ballot initiatives (Initiative 1, Initiative 2) regarding the classification of app-based drivers. If passed, either initiative would enact the Relationship Between Network Companies and App-Based Drivers Act (the “Act”) and classify such drivers as independent contractors rather than employees. Continue Reading Massachusetts Eyes Gig Economy Driver Classification Ballot Initiative

In an unpublished opinion, the Ninth Circuit held that an employer is not required to pay employees for time spent undergoing government-required security checks enforced by a governmental body to access the worksite.

Continue Reading Ninth Circuit Says Time Spent in Airport Security Lines Is Not Compensable Work Time

On July 29, 2021, the U.S. Department of Labor (DOL) rescinded a final rule issued under the Trump administration that had narrowed the definition of a vertical joint employment relationship under the Fair Labor Standards Act (FLSA). There will be a greater likelihood that joint employment relationships will be found after the rescission takes effect on September 28, 2021. Continue Reading Department of Labor Rescinds Joint Employer Test Under the FLSA

Did you know that July 29 was National Intern Day? Well, Washington’s Department of Labor and Industries (L&I) does and, in recognition, L&I recently released a bulletin reminding employers that sometimes a so-called intern is actually just another employee. Continue Reading No Such Thing as a Paid Intern, Says Washington State Department of Labor & Industries

In California, the “regular rate of pay” is a term of art. Calculating it is not necessarily straightforward and much of the law in this area is counterintuitive, so employers should familiarize themselves with the basics to prevent missteps that can result in significant derivative penalties. An employee’s regular rate of pay provides the basis for overtime compensation and meal and rest period premium payments for nonexempt employees. Cal. Lab. Code § 510; Ferra v. Loews Hollywood Hotel, LLC, S259172 (Cal. July 15, 2021). Employers sometimes erroneously believe that a nonexempt employee’s hourly wage is the employee’s regular rate of pay. While the regular rate of pay can sometimes be the same as an nonexempt employee’s hourly wage, the correct answer is often more complex, and a series of formulas is required to derive a rate capturing all renumeration for hours worked by an nonexempt employee. Here is a refresher on how an employer should derive an employee’s regular rate of pay for a few common compensation types on a weekly basis. Continue Reading California “Regular Rate of Pay” Refresher

Will the Biden administration be Obama 2.0 for employers, or could we see a more progressive agenda? How will Biden’s Labor Department address gig economy employers who classify workers as independent contractors? What workplace safety protections can we expect now that employees are coming back to work? How will employers experience the changes on the front lines as the DOL seeks to dramatically expand its investigatory resources? Join Perkins Coie Senior Counsel Christopher Wilkinson for a discussion of what it takes to get things done in D.C., based on experience gained as an associate solicitor in the Labor Department during the Obama administration.

Listen to “What to Expect When You’re Expecting Change in DC” on Spreaker.

On July 21, 2021, the U.S. Department of Labor announced a “ Notice of Proposed Rulemaking to establish standards and procedures to implement and enforce Executive Order 14026, ‘Increasing the Minimum Wage for Federal Contractors’, signed by President Biden on April 27, 2021.” The proposed rule would: Continue Reading The U.S. Department of Labor Proposes an Increased Minimum Wage for Workers on Government Contracts

On July 15, 2021, the California Supreme Court decided Jessica Ferra v. Loews Hollywood Hotel, LLC, S259172 (Cal. S.Ct. July 15, 2021). The question before the Court was “whether the Legislature intended ‘regular rate of compensation’ under section 226.7(c) to have the same meaning as ‘regular rate of pay’ under section 510(a), such that the calculation of premium pay for a noncompliant meal, rest, or recovery period, like the calculation of overtime pay, must account for not only hourly wages but also other nondiscretionary payments for work performed by the employee.” Id. at 1. Continue Reading California Supreme Court Rules Meal and Rest Period Premium Pay Is Calculated in the Same Manner as Calculations for Overtime Regular Rate of Pay

Paid Family and Medical Leave (PFML) insurance programs provide benefits to eligible employees who need time off work to care for themselves or their family members. The programs enacted to date are typically funded through premiums paid by employers and/or employees via deductions based upon wages or payroll taxes, although the funding mechanism varies from state to state. These contributions are paid as premiums to state agencies responsible for administering the programs. The programs generally provide wage replacement benefits for a particular number of weeks, depending on the purpose of the leave. The programs differ from state to state, and unless a uniform national program is adopted, employers face the difficult task of understanding and abiding by the requirements for each individual program. Continue Reading Keep Track of the Many Paid Family and Medical Leave Programs Popping Up Across the Nation

In October 2019, Ralph “Trey” Johnson filed a putative class action lawsuit in the United States District Court for the Eastern District of Pennsylvania against the National Collegiate Athletic Association (NCAA) and a number of universities alleging that college student-athletes are employees who are entitled to pay under the Fair Labor Standards Act (FLSA). Judge John R. Padova ordered the parties to submit supplemental briefing on the Defendants’ Motions to Dismiss in light of the Supreme Court’s June 21, 2021 opinion in National Collegiate Athletic Association v. Alston. The Alston decision held that the NCAA could not bar certain education-related benefits (such as tutors or computers) and left open the door for a direct challenge to the NCAA’s prohibition on paying athletes. Continue Reading Student Athletes Oppose Motion to Dismiss FLSA Claims in Light of Supreme Court’s Alston Opinion