Hunton Employment & Labor Perspectives

The California Supreme Court has ruled that California employers cannot rely on the federal de minimis doctrine to avoid claims for unpaid wages on small amounts of time.   Under the de minimis doctrine, employers may be excused from paying workers for small amounts of otherwise compensable time if the work is irregular and administratively difficult to record.  Federal Courts have frequently found that daily periods of approximately 10 minutes are de minimis even though otherwise compensable.

In Troester v. Starbucks Corporation, the California Supreme Court held that California wage and hour laws have not adopted the FLSA’s de minimis doctrine.  As a result, Starbucks was not permitted to avoid paying an employee who regularly spent several minutes per shift working off-the-clock.  The Supreme Court acknowledged, however, that there may be circumstances involving “employee activities that are so irregular or brief in duration that it would not be reasonable to require employers to compensate employees for the time spent on them.”

California was one of the leading states to tackle pay discrimination by banning inquiries into salary history.  California Labor Code Section 432.3, which went into effect on January 1, 2018, prohibits public and private employers from seeking or relying upon the salary history of applicants for employment.  But some of the law’s terms were undefined and some of the provisions were unclear, so after Section 432.3 went into effect, employers had questions about how to remain compliant with the law when hiring new employees.

On July 18, the Department of Labor’s (DOL) Office of Labor-Management Standards issued a final rule rescinding the so-called “persuader rule,” a controversial Obama-era regulation requiring employers to disclose advice received regarding opposition to union efforts.

The Supreme Court recently approved substantial changes to the Federal Rules of Civil Procedure, including amendments to Rule 23, which covers federal class actions.  The amendments to Rule 23 seek to modernize and standardize the notice, settlement, objection, and appeal procedures.  If Congress approves the amendments, they will become effective December 1, 2018.     

Criminal Background Inquiries in the Hiring Process:  Class Action Litigation and “Ban the Box” Trends in 2018

Wednesday, August 8, 2018 1:00 p.m. – 2:00 p.m. ET

Speakers

Robert T. Quackenboss Partner, Hunton Andrews Kurth LLP Washington, DC

Susan Joo Associate, Hunton Andrews Kurth LLP San Francisco, CA

In AHMC Healthcare, Inc. v. Superior Court of Los Angeles County, No. B285655 (June 25, 2018) (“AHMC Healthcare”), California’s Second District Court of Appeals upheld an employer’s use of a payroll system that automatically rounds employee time up or down to the nearest quarter hour.  Although the California Supreme Court has not yet addressed this issue, AHMC Healthcare aligns with decisions from the federal Ninth Circuit Court of Appeals, many federal district courts, and California’s Fourth District Court of Appeals, which also upheld time-rounding practices.

Many in the labor community are familiar with the Machinists Union’s long running effort to unionize Boeing’s South Carolina-based 787 Dreamliner manufacturing facility.  After failing in two previous attempts to organize the entire facility, the Union recently won a bid to organize a “micro-unit” limited to a group of flight line technicians and inspectors.  The Regional Director’s decision to approve the Union’s proposed bargaining unit took most labor practitioners by surprise, given the NLRB’s recent decision in PCC Structurals overturning the ...

As website accessibility lawsuits continue to surge, places of public accommodation oftentimes battle multiple lawsuits filed by different plaintiffs represented by different attorneys.  Even after entering into private settlements, which include detailed website remediation plans, defendants may continue to be the target of these lawsuits by copycat plaintiffs.  The Eleventh Circuit recently addressed this dynamic head-on, and held that a private settlement entered into by Hooters and a first-filed plaintiff did not moot a nearly identical, later-filed website accessibility lawsuit by a different plaintiff.  This case underscores the importance of quickly remediating website accessibility issues, as well as taking care to draft settlement agreements to maximize arguments that future lawsuits are barred.

The Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d)(2), confers federal subject matter removal jurisdiction over purported class actions filed in state court when, among other things, there is an amount-in-controversry (“AIC”) exceeding $5,000,000.  Deciding whether a class action can be properly removed under CAFA typically turns on whether this high jurisdictional threshold can be met.