On November 29, 2017, a California Superior Court judge ruled that employers that require employees to set aside time for a shift and have them call in to determine if they will indeed be working are required to pay employees “reporting time pay,” even if the employee never actually steps foot inside the business for a shift. This ruling serves as a cautionary reminder to employers that California disfavors “on-call shifts,” and employers should expect to pay employees a premium to utilize such shifts.
California Employers Should Prepare for New Minimum Wage Laws: A Summary of New Minimum Wages Effective January 1, 2018
Several new minimum wage rates are slated to take effect on January 1, 2018 in various cities throughout California, as well as the state as a whole. California employers should begin preparing now to adjust employee wages to ensure compliance with the new rates.
A summary of the new minimum wage rates for nonexempt employees is provided below:
California Employers Should Remain Cautious when Classifying their Workforce, Notwithstanding More Lenient Federal Policies
Although the Trump administration rescinded its guidance on worker misclassification earlier this year and appears to have otherwise taken a “softer approach” to misclassification enforcement, California employers should remain diligent in properly classifying their workers and should not allow lax federal enforcement to lead to similarly lax corporate policies. California employers remain subject to strict laws governing worker misclassification. California law presumes that all workers who render services for another are non-exempt employees unless employers prove that they are independent contractors or exempt employees. Cal. Lab. Code § 3357. Employers who willfully misclassify their workers can be subject to steep penalties.
Tim Garrett Provides Update on Eighth Circuit’s Protection of Racist Insults in Cooper Tire Case
I provided an update on the August 2017 decision by the Eighth Circuit Court of Appeals ruling that a picketing worker from Cooper Tire should not have been fired for yelling racist insults at a busload of African-American replacement workers. The Eighth Circuit’s decision affirmed the National Labor Relations Board’s (NLRB) decision that the company violated the law when it refused to reinstate the worker and ordered the company to reinstate the picketing worker with full back pay. In the article, I outline the case background and the various appeals, ending with analysis of the most recent decision.
The full article, “NLRA Protects Striker’s Racists Insults,” was published in the November 2017 issue of HR Professionals and is available online.
HR Professionals: Don’t Miss Our Labor & Employment Law Seminar – November 16
Labor & employment attorneys Lymari Cromwell and Mary Leigh Pirtle will discuss the following topics:
- FMLA/ADA: A practical, scenario-based discussion regarding extended leaves of absence and how they are regulated by application of the FMLA and the ADA, including a detailed discussion of the EEOC’s position with respect to extended leave as a reasonable accommodation.
- Reasonable Accommodation/Interactive Process: A discussion regarding common pitfalls in the interactive process under the ADA.
- State Law Considerations: A high-level discussion regarding state laws pertaining to paid leave and marijuana legalization.
This complimentary program will be held from 8:00 a.m.–10:30 a.m. on Thursday, November 16 at the Marriott Memphis East. Registration and breakfast will begin at 7:30 a.m.
To register for this event, click here.
The DOL’s Fiduciary Rule: Alive, Dead or Both?
Bass, Berry & Sims attorney Doug Dahl provides an update regarding the Department of Labor’s (DOL) fiduciary rule, which sets forth when an individual becomes a fiduciary by providing investment advice to employer retirement plans. While the final rule was released in April 2016, numerous delays have postponed entire implementation until July 2019. Until then, Doug recommends employers consider the following:
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Update: Stage Now Set for DOL to Adopt More Modest Salary Level for Overtime Exemptions
In an article for the October 2017 issue of The Corporate Counselor, Bass, Berry & Sims attorney Tim Garrett examined the latest ruling related to the Department of Labor’s (DOL) overtime rule following Texas Federal Judge Amos Mazzant’s final rule striking down the Obama-era rule. If implemented, the rule would more than double the minimum salary that employers would have to pay “white-collar” workers to meet overtime pay exemptions. Judge Mazzant’s final ruling cited that the DOL rule had made the salary level too high and that the exemption would inadvertently become based on pay and not duties of the position. Following the ruling, the DOL withdrew its appeal of the preliminary injunction and the Fifth Circuit granted the request.
Is Genetic Testing the Future of Employee Wellness Programs?
Bass, Berry & Sims attorney Susie Bilbro authored an article for BenefitsPRO discussing the future of genetic testing in employee wellness programs following the latest updates from the Preserving Employee Wellness Programs Act, introduced in the House of Representatives (H.R. 1313) in March 2017. The bill would allow employers to ask employee’s family medical history and request genetic information as part of wellness programs. While the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) do not typically allow employers to obtain employee information regarding health conditions or those of family members, both laws allow employers to inquire about this information and conduct medical examinations if providing health or genetic services through a voluntary wellness program.
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Mutual Agreement to Arbitrate Employment-Related Disputes (TN)
Bass, Berry & Sims attorneys Bob Horton and Kimberly Veirs contributed an article for Practical Law on Tennessee laws related to the mutual agreements to arbitrate employment-related disputes. The article outlines key differences between federal and Tennessee arbitration law and cites several cases interpreting these statutes. Bob and Kimberly also provided sample language for a Tennessee-specific agreement to arbitrate employment-related claims that can be used by employers with employees in Tennessee.
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Mandatory Arbitration of Employment-Related Claims (TN)
Bass, Berry & Sims attorneys Bob Horton and Kimberly Veirs contributed an article for Practical Law on Tennessee laws related to the mandatory arbitration of employment-related claims. The article outlines key differences between federal and Tennessee arbitration law and provides guidance on issues associated with unconscionability, severability, waiver of class and representative actions, arbitrability, drafting considerations, EEOC challenges, and bracketed text. As part of the article, the authors provided sample language for a Tennessee compliant mandatory arbitration provision of employment-related claims that can be incorporated into a written employment agreement or employee handbook.
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