In an article published by the Society for Human Resource Management (SHRM), Bass, Berry & Sims attorney Bob Horton provided insight on what responsibilities franchisors have for ensuring that franchisees comply with employment laws. Bob suggests that “simply providing training to franchisees regarding employment law should not transform, by itself, a franchisor into an employer. During the course of employment law training, supervisors will often ask for advice regarding specific situations that come to mind during the training. Responding to such inquiries during the course of training should certainly be avoided as those conversations could be used as evidence of indicia of control by the franchisor.”

The full article, “Franchisors Shouldn’t Micromanage Franchisees’ Compliance Training,” was published by SHRM online on February 21, 2017, and is available online.

California Legislature introduced and passed a law phasing in state-wide minimum wage increases that will ultimately reach $15.00 per hour by 2022 for large employers and by 2023 for small employers.  Specifically, for employers with more than 25 employees, the hourly minimum wage will increase according to the following schedule:

Continue Reading California Minimum Wage Increases

California employers are required to provide written wage statements to employees generally identifying the total hours worked during each period.  The Labor Code provides an exception to this requirement for those employees who are paid solely on salary and who are exempt from overtime.  However, because not all salaried, exempt employees are paid solely on a salary basis (e.g., receiving commissions or stock options), California employers were uncertain whether they were still required to disclose total hours worked for those workers.  To address this issue, the legislature amended the Code to expand the exception.  According to the revised language, employers no longer need to provide written wage statements disclosing total hours worked for the following employees:

Continue Reading Employers Not Required to Track “Hours Worked” on Itemized Wage Statements for Exempt Employees

After amending its Equal Pay Act to address gender-related wage differentials effective January 1, 2016, the California legislature enacted nearly identical language to also preclude wage differentials based on race or ethnicity, effective January 1, 2017.  Specifically, the bill amends the Labor Code to prohibit employers from paying any of their employees at wage rates less than the rates paid to employees of another race or ethnicity for substantially similar work when viewed as a composite of skill, effort, and responsibility and performed under similar working conditions.

As with gender, if there is a wage differential, the employer bears the burden of demonstrating that the wage differential is based on one or more of the following factors:

Continue Reading California Again Updates Equal Pay Act

The California legislature has added a new provision to the Labor Code expanding protections from “unfair immigration-related practices” (originally passed in 2013) beyond the retaliation context and extending protections to any employee or applicant, regardless of whether they have ever made a complaint.  The law also specifies that it shall be unlawful for any employer to:

Continue Reading New Protections for Immigrants

Last week, President Trump issued a memorandum directing the Department of Labor (DOL) to reconsider implementation of the fiduciary rule. The fiduciary rule, which widens the scope of who is considered a “fiduciary” of an employee benefit plan under ERISA and under what circumstances an advisor provides “investment advice,” has been met with considerable criticism in some circles.

Many expected President Trump to delay or overturn the rule, but at least initially, he has declined to do so.  Trump’s memorandum did not delay, withdraw or revise the fiduciary rule in any way. His memorandum merely tasked the DOL with reconsidering the fiduciary rule in light of whether it could negatively affect the ability of consumers to gain access to retirement and investment advice. Specifically, Trump requested legal and economic analysis as to whether the fiduciary rule will:

Continue Reading DOL’s Fiduciary Rule Still in Limbo after Trump Memo and Federal Judge’s Ruling

On Thursday, January 26, President Trump named Republican Phillip Miscimarra as acting Chairman of the National Labor Relations Board (the Board). Miscimarra was the sole remaining Republican on the Board, along with two Democrats – all of whom had been appointed by President Obama. Miscimarra takes over the chairmanship from Mark Gaston Pearce. Miscimarra has a background as a member of several management-oriented labor and employment law and general practice firms. The Board currently has two vacancies which President Trump will be filling in the coming months, along with the position of general counsel. The term of the current general counsel expires later this year.

Continue Reading A Step in the Right Direction

In Syed v. M-I, LLC, the U.S. Court of Appeals for the Ninth Circuit recently held that combining a liability waiver and a Fair Credit Reporting Act (FCRA) disclosure in an employment application constitutes a willful violation of the FCRA. The employee claimed that his employer obtained his credit report unlawfully because the disclosure form he signed did not consist “solely of the disclosure” as required by the FCRA. The Ninth Circuit’s decision reversed the judgment of a California district court, which had dismissed the lawsuit because the complaint failed to allege that the employer’s understanding of its obligation under the FCRA was unreasonable.

Continue Reading In Bizarre Procedural Posture, Ninth Circuit Finds FCRA Willful Violation

Bass, Berry & Sims attorney Doug Dahl provided insight for an article in InsuranceNewsNet on the impact to employee benefits based on future regulatory shifts in a Trump administration, especially surrounding the Affordable Care Act, the final Department of Labor (DOL) fiduciary rule and the DOL overtime rule. “This expansionary trend for the DOL is likely to be significantly restricted under the Trump presidency, taking a back seat to agencies more aligned with Trump’s agenda,” Doug noted. “Trump’s presidency makes the viability of repealing or at least delaying these rules much more likely.”

The full article, “Regulation Reversal the Ultimate Trump Card?” was published by InsuranceNewsNet on January 19, 2017, and is available online.