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California: Clarification on Defining Exempt Managerial Duties

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December 18, 2019

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In The Safeway Wage and Hour Cases, the California Court of Appeal revisited how to determine whether a manager’s duties qualify as exempt or nonexempt. Generally, the court identified two types of work that each qualify as exempt from overtime.

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California: Settlement Agreements with Staffing Agencies Don’t Necessarily Cover Staffing Clients

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February 6, 2020

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In Grande v. Eisenhower Medical Ctr., the California Court of Appeal stated that an employee’s settlement of a wage and hour claim with a staffing agency does not prevent the employee from later suing the staffing agency’s client on the same wage and hour claims, where the settlement agreement does not expressly release the staffing agency’s clients.

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California: Employers Must Pay for Screening Time

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February 13, 2020

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In Frlekin v. Apple, Inc., the California Supreme Court stated that employers must pay employees for time spent undergoing security checks before exiting the workplace. The Ninth Circuit Court of Appeal asked the California Supreme Court to decide the rule in this case two years ago. There, employees were required to clock out and then undergo a security check while still on the premises. The security check was extensive, requiring employees to open and take things out of their bags, and verify the serial numbers of their own Apple products. If they didn’t complete the security check, employees were disciplined. The Court stated that because the employer retained sufficient control over the employee during this process, it was considered working time that should have been compensated.

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Colorado: Add New Vacation Pay Requirements to the List of Wage and Hour Changes

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December 15, 2020

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In addition to the bevy of wage and hour changes we previously reported on, the Colorado Department of Labor and Employment (DLE) adopted its proposed rule concerning vacation pay. Generally speaking, Colorado employers have been required to pay out an employee’s accrued, unused vacation pay upon separation of employment; but a June 2019 Court of Appeal case said that employers could place restrictions on such payments as part of their workplace policies or agreements.

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March Updates

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This Short List addresses the following topics:
  1. Second Circuit: ERISA Plans Can Be Modified Absent Fraud or Mistake
  2. 10th Circuit: Colorado Home Healthcare Workers are Not Entitled to Overtime
  3. California: Wage and Hour Concerns for Coronavirus
  4. California:  Emergency Wildfire Smoke Regulations Renewed Again
  5. Denver, CO: Anti-Discrimination Protections Expanded
  6. District of Columbia: Notice Requirements for Paid Family Leave
  7. Illinois: Guidance Issued on Sexual Harassment Requirements
  8. Minneapolis, MN: Local Minimum Wage Law is Given a Green Light
  9. St. Louis, MO: Ban-the-Box in Effect for Private Employers
  10. New Mexico: Workers’ Comp Claim Doesn’t Apply to Tribal Casino
  11. New York: Statewide Salary History Ban FAQs
  12. New York City, NY: Contractors/Freelancers Must Receive Anti-Harassment and Discrimination Protection & Training
  13. Philadelphia, PA: Salary History Inquiry Ban is Back in Effect
  14. Columbia, SC: Criminal and Salary History Ordinance No Longer Applies to Private Employers

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Federal DOL Updates: Clarification on the “Joint Employer” Standard, Overtime Calculation in Multi-Week Bonus Periods, and Per-Project Pay for Exempt Salary Threshold

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The U.S. Department of Labor (DOL) published a final rule concerning the joint employer standard, as well as two Fair Labor Standards Act (FLSA) opinion letters providing guidance on specific wage and hour inquiries.  Below are key takeaways from each of these updates.

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Colorado: Wage and Hour Change is a Comin’!

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March 16, 2020

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On January 22, 2020, the Colorado Department of Labor and Employment (CDLE) published a final rule for the Colorado Overtime and Minimum Pay Standards (COMPS) Order #36, with sweeping changes to the state’s wage and hour laws. Specifically, COMPS replaces the Colorado Minimum Wage Order in an attempt to provide clarity to the rules. Most significantly, COMPS will now apply to all industries.

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Minnesota: Split-Day Overtime is Over

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September 18, 2019

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In In re Minnesota Living Assistance, Inc., the Minnesota Supreme Court stated that employers cannot use split-day overtime to comply with state overtime rules, where employees have not yet worked the overtime hours meant to comply with state overtime rules. There, the employer paid employees one rate for the first 5.5 hours worked in a 16-hour day, and 1.5 times that rate for the remaining 10.5 hours. The Court stated that the Minnesota Fair Labor Standards Act requires employers to pay employees overtime for all hours worked in excess of 48 in a week, regardless of whether the employee received time-and-a-half compensation during the first 48 hours worked.

Additionally, time-and-a-half wages paid during the first 48 hours worked in a workweek cannot be excluded when calculating an employee’s regular rate of pay, because those hours were not paid for overtime work (which are excluded when calculating the regular rate of pay). Because federal Fair Labor Standards Act overtime rules vary compared to the state rules, employers must take care to comply with both.

Action Items

  1. Review split-day overtime policies and procedures to ensure compliance with state wage and hour rules.
  2. Have payroll processes updated.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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.

© 2019 ManagEase

Pennsylvania: Fluctuating Workweek Method of Overtime Pay No Longer Permitted

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November 20, 2019

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In Chevalier v. General Nutrition Centers, Inc., the Pennsylvania Supreme Court stated that employers may not use the fluctuating workweek (FWW) method of calculating overtime under state wage and hour law. The FWW allows employers to pay a fixed salary, regardless of the number of hours worked, and pay overtime at a half hourly rate for time worked over 40 hours in a week by dividing the fixed salary by the number of hours worked in a week. The idea is that employees already receive the first portion of the overtime rate in the fixed salary.

The Court stated that this method, although permitted under federal law, was not consisted with state wage and hour law, which requires that employees be paid for overtime “not less than one and one-half times” the employee’s regular rate. Employers must stop using the FWW method of calculating overtime and ensure that employees receive one and a half times the regular rate of pay for overtime hours worked.

Action Items

  1. Have payroll processes updated immediately.
  2. Review pay structures for compliance.
  3. Have payroll administrators trained on overtime calculations.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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.

© 2019 ManagEase

9th Circuit: De Minimis Rule Does Not Apply to Regular Work Activity Regardless of How Little Time is Spent

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June 28, 2019

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In Rodriguez v. Nike Retail Servs., Inc., the Ninth Circuit refused to apply the de minimis rule to time employees spent participating in security checks after clocking out, even though the time spent could have been less than a minute. The de minimis rule allows employers to forego paying employees for short, uncertain and indefinite periods of time that are irregularly worked off the clock.

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