In Egan v. Delaware River Port Authority, the Third Circuit court stated that any time an employee’s use of FMLA leave is given any “negative weight” when taking an adverse employment action against an employee, it is considered to be retaliation. There, the plaintiff was granted intermittent FMLA leave for migraines. Though the employer approved the time off, the plaintiff believed that management was unhappy with him taking time off. When his position was later eliminated, the employee sued, alleging that that his employer had a “mixed-motive” for his termination, and that he was retaliated at least in part for taking FMLA leave.
Seventh Circuit is the First Federal Court of Appeals to Recognize Sexual Orientation as a Federally Protected Class
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This landmark decision effectively prohibits discrimination and retaliation against applicants and employees on the basis of sexual orientation under federal law.
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Second Circuit: “Black Car” Drivers are Independent Contractors Under the FLSA
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April 21, 2017
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A recent Second Circuit case confirmed that New York City “black car” drivers—workers who provide high-end transportation services, e.g., limousines—are independent contractors under the Fair Labor Standards Act (“FLSA”).
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Third Circuit: FMLA Leave Cannot be Any Basis for Adverse Action against Employees
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November 14, 2016
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In Egan v. Delaware River Port Authority, the Third Circuit court stated that any time an employee’s use of FMLA leave is given any “negative weight” when taking an adverse employment action against an employee, it is considered to be retaliation. There, the plaintiff was granted intermittent FMLA leave for migraines. Though the employer approved the time off, the plaintiff believed that management was unhappy with him taking time off. When his position was later eliminated, the employee sued, alleging that that his employer had a “mixed-motive” for his termination, and that he was retaliated at least in part for taking FMLA leave.
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Ninth Circuit: Wage Rates Used for Overtime Hours Cannot Be Lower Than Those Used for Non-Overtime Hours
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March 21, 2017
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In Brunozzi v. Cable Communications, Inc., the Ninth Circuit stated that wage rates cannot be decreased in weeks when overtime is worked, as compared to weeks when no overtime is worked. There, two cable technicians were paid a piece rate per cable system installed, plus a contractually-based production bonus each pay period as part of their regular wages. When the employer calculated overtime, it reduced the production bonus by the amount of overtime paid for piece rate work, which meant that employees received lower wage rates than when they did not work overtime.
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Eleventh Circuit: Commissions Paid Only Apply to the Workweek in Which They Are Earned When Calculating Overtime Exemption Status
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April 13, 2017
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In Frexia v. Prestige Cruise Services, LLC, an employee alleged that his employer violated the FLSA because the employee’s compensation—a weekly fixed salary plus sales-based commission—fell below the overtime exemption threshold for certain weeks. The Eleventh Circuit’s review of the case confirmed that pay for work performed each workweek must be counted for that workweek, rather than counted across a span of several weeks, in order to meet the overtime exemption threshold.
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California: Labor Commission Releases Updated Paid Sick Leave FAQ
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March 29, 2017
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The California Department of Industrial Relations (“DIR”) Labor Commissioner recently updated the statewide Paid Sick Leave: Frequently Asked Questions (“FAQ”) page. The update is intended to provide further clarity to three commonly asked questions, which are summarized below.
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California: Arbitration Agreement Provisions Waiving Right to Seek Public Injunctive Relief Are Unenforceable
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April 6, 2017
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Arbitration agreement provisions that require an individual to waive their statutory right to seek public injunctive relief in any forum, including arbitration or in court, have been deemed unenforceable by the California Supreme Court in McGill v. Citibank.
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May Updates
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Form I-9 Glitch Needs Immediate Review by Employers
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November 14, 2016
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The USCIS sent a press release this week to notify employers that the updated electronic Form I-9 published on November 14, 2016 had a glitch when it was issued. Specifically, when completing the form on a computer, numbers entered in the Social Security number field get transposed when the form is printed. For example, the number 123-45-6789 appears as 123-34-6789 when the form is printed.
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Reminder: San Francisco 2016 Employer Reporting Deadline is May 1, 2017
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May 1, 2017
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Employers subject to San Francisco’s Health Care Security Ordinance and Fair Chance Ordinance must file the 2016 Employer Annual Reporting form by May 1, 2017 to satisfy their reporting requirements. The Reporting form also includes a survey for compliance with San Francisco’s Paid Parental Leave for Bonding with New Child Ordinance. Covered employers are subject to a $500 penalty per quarter for failure to submit the form. The Reporting form can be obtained here.