Ninth Circuit: An employee’s knowing violation of the FLSA is the employer’s willful violation, and you can’t necessarily collect from joint employers

By Matt Hesketh and Lindsay Hesketh A staffing company (Company A) got into hot water with the DOL for failing to pay overtime. Scalia v. Employer Solutions Staffing Group, LLC, No. 18-16493 (March 2, 2020). The employees at issue were placed by a second company (Company B). Company B instructed Company A’s payroll employee to pay […]

Drafting Yourself into a Lawsuit

By Beth Ann Lennon Many employment-related statutes require employers to provide “clear and conspicuous” communications to employees.  The Ninth Circuit’s decision last week in Gilbert v. Cal. Check Cashing Stores (“CCCS”), No. 17-16262, reminds us of the need to proofread employment documents to satisfy that requirement.  As the Ninth Circuit was forced to explain again, […]

Ninth Circuit Strikes Class Arb Waivers

By John Alan Doran The Ninth Circuit Court of Appeals weighed in, today, on the propriety of class action arbitration waivers under the NLRA.  The Court held that such waivers violate Sections 7 and 8 of the NLRA in the context of a pending FLSA lawsuit. Ernst & Young requires new employees to sign an […]

DOL Fumbles…SCOTUS Punts

By John Alan Doran This morning the U.S. Supreme Court issued its latest decision (read, “non-decision”) in Encino Motorcars, LLC v. Navarro. The case involves a decades-old question of whether auto dealership “service advisors” are exempt under a specific FLSA overtime exemption covering any “salesman, partsman, or mechanic…engaged in selling or servicing automobiles, trucks, or […]

Protection for (Some) HR Managers

By Andy Volin Like most employment statutes, the Fair Labor Standards Act (“FLSA”) prohibits retaliation against employees who file complaints. The Supreme Court ruled in 2011 that this protection even extends to oral complaints at work. Recently, the Ninth Circuit decided that even a management employee in HR could assert retaliation based on a report […]

Exempt or Not? Service Advisors

By Andy Volin The Fair Labor Standards Act (“FLSA”) requires payment of a minimum hourly wage and overtime, unless an employee fits within one of many exemptions. In some parts of the United States, courts had ruled that automobile service advisors – the people at the dealership who you speak with about your car’s repair […]

Supremes OK Post-Shift Screening

By John Alan Doran The Supreme Court today shed further light on post-work, non-compensable time under the FLSA. Integrity Staffing Solutions, Inc. v. Busk, No. 13-433 (U.S. December 9, 2014). The plaintiff class were warehouse workers who retrieved and packaged goods to ship to Amazon customers. After each work shift, they were required to stand […]

Cussing Out The Boss May Be Protected

By Jon Watson During a meeting about commissions and minimum wage and about his own and other sales peoples’ breaks, an employee lost his temper. In a raised voice he called his supervisors names, including “f***ing mother f***ing,” f***ing crook[s],” and an “a**hole,” among others. He also stood up, pushed his chair aside, and told […]

Workers May Choose Vacation or FMLA Leave

By Matt Morrison In 2007, Maria Escriba requested and received two weeks of vacation from her employer to travel to Guatemala to care for her ailing father. When Escriba did not return to work at the end of her leave, the employer discharged her.  Escriba sued, alleging that her employer unlawfully interfered with her right […]

Employer’s Final Paycheck Deductions Upheld

By John Alan Doran The Ninth Circuit just held that an employer is entitled to deduct from an employee’s final paycheck money an employee owes to the employer. Ward v. Costco Wholesale Corp. Costco issued Ms. Ward a company credit card, but required her to sign a contract allowing Costco to deduct any remaining credit […]