hawaii – ManagEase

Ninth Circuit: Fair Credit Reporting Act Pre-Adverse Action Notice Is a Procedural Requirement and Not an Actionable Right

August 6, 2018/0 Comments/in HR Alerts /by ManagEase

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July 13, 2018

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In Dutta v. State Farm, the Ninth Circuit Court of Appeal stated that an employee did not have standing to sue a prospective employer for failing to comply with the pre-adverse action notice requirements under the Fair Credit Reporting Act (FCRA). The FCRA requires employers to give applicants notice before they take any adverse employment action based on the results of a consumer report (e.g., credit report). This requirement is meant to give the applicant an opportunity to contest or correct information in the credit report. After providing such pre-adverse action notice and certain timing requirements are met, an employer may then take the adverse action if it still intends to do so.

Hawaii: Prior Salary History Inquiries Banned as of January 1, 2019

August 6, 2018/0 Comments/in HR Alerts /by ManagEase

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January 1, 2019

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Senate Bill 2351 prevents employers with at least one employee working in Hawaii from making prior salary history inquiries, except under very limited circumstances. Like most other states implementing such laws, employers must be careful not to ask for, search for, or rely upon prior salary history when setting compensation rates for a new position.

Ninth Circuit: Tribal Casinos Must Obey NLRA

June 8, 2018/0 Comments/in HR Alerts /by ManagEase

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April 26, 2018

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According to the Ninth Circuit Court of Appeals, even self-governed tribal land must obey the provisions of the National Labor Relations Act (“NLRA”). In National Labor Relations Board v. Casino Pauma, the circuit court stated that the casino violated the NLRA by attempting to limit protected union activity.

Under the NLRA, employees have the right to engage in specified protected activities relating to improving or discussing working conditions, free of employer retaliation or adverse action. At Casino Pauma, operated by the Pauma Band of Mission Indians and located on the tribe’s reservation, a number of casino workers began distributing union leaflets to customers entering the casino. The employees were originally removed by security. When they attempted to distribute leaflets some weeks later, the employees were disciplined.

The NLRB filed a complaint on behalf of the employees. An administrative law judge found that the casino violated the NLRA by attempting to interfere with protected union activities, and the circuit court agreed, stating that the NLRA applies to tribal employers.

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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

Ninth Circuit Overrules Itself: Prior Salary History Cannot Justify Wage Differential Between Men and Women

May 7, 2018/0 Comments/in HR Alerts /by ManagEase

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April 9, 2018

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In April 2017, the Ninth Circuit previously confirmed that employers could consider an individual’s prior salary history when justifying a wage differential. Now, a year later, the circuit court has reversed its own decision, stating that prior salary history cannot be used to justify pay disparities prohibited by the federal Equal Pay Act.

Ninth Circuit: DOL’s 80/20 Tip Credit Rule is Invalid

October 6, 2017/0 Comments/in HR Alerts /by ManagEase

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September 6, 2017

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The Department of Labor (“DOL”) permits employers to give a tip credit to tipped employees who spend no more than 20% of their time performing non-tipped duties. In Marsh v. J. Alexander’s, LLC, the Ninth Circuit noted that this rule is only found in the Field Operations Handbook used by the DOL as guidance for investigations by field officers, rather than in a statute or regulation; as a result, the court stated it was not valid.

Ninth Circuit: Prior Salary History may be used to Justify Wage Differentials Between Men and Women

May 2, 2017/0 Comments/in HR Alerts /by ManagEase

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April 27, 2017

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Last week, the Ninth Circuit ruled on Rizo v. Yovino, a wage inequality claim brought under the federal Equal Pay Act. In reviewing this case, the Ninth Circuit affirmed a previous case, Kouba v. Allstate Insurance Co., and confirmed that prior salary history may be considered a “factor other than sex” for the purpose of justifying a wage differential.

Ninth Circuit: Wage Rates Used for Overtime Hours Cannot Be Lower Than Those Used for Non-Overtime Hours

May 2, 2017/0 Comments/in HR Alerts /by ManagEase

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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.

Ninth Circuit: Car Dealership Service Advisors Not Exempt from FLSA

February 6, 2017/0 Comments/in HR Alerts /by ManagEase

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January 9, 2017

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We previously reported on Navarro v. Encino Motorcars, LLC, wherein a group of service advisors at an auto dealership alleged that they did not receive owed overtime compensation. At that time, the Ninth Circuit decided to defer to the U.S. Department of Labor’s interpretation of the Fair Labor Standards Act (“FLSA”); the U.S. Supreme Court reversed this decision and remanded the case to the Ninth Circuit to determine how the FLSA statutes apply to auto dealership service advisors.

Ninth Circuit: Disclosures for Background Checks Cannot Contain a Liability Waiver

February 6, 2017/0 Comments/in HR Alerts /by ManagEase

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ID, MT, NV, OR, WA Employees

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January 20, 2017

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On January 20, 2017, in Syed v. M-I, LLC, the Ninth Circuit Court of Appeals stated that the disclosure required by the Fair Credit Reporting Act (“FRCA”) cannot also contain a liability waiver for conducting the background check in the same document. Rather, only the disclosure notice and background authorization can be contained within the same document. Having other language in the disclosure notice violates background check rules under the FRCA.