Earlier this month, the Wage and Hour Division of the Department of Labor reissued 17 opinion letters from the Bush administration.  The letters provide employers important guidance on a wide-range of issues under the Fair Labor Standards Act.

The reinstatement marks the first publication of opinion letters since the DOL announced last June that it would bring back that form of guidance.  The Obama administration had eliminated the practice and withdrawn many existing opinion letters, including many of those reissued this month.

The reinstated letters do not upend any existing laws, but they provide important guidance and a possible safety net to employers facing similar situations. Many of the reinstated letters concerned application of Section 13(a)(1)’s overtime exemption for executive and administrative employees.  The letters also discussed whether certain bonuses must be included in the regular rate for purposes of calculating overtime and whether certain on-call time qualified as compensable working hours.

The letters contain a cover letter noting that someone had specifically asked the DOL to reissue that particular opinion letter.  Thus, employers who would like to rely on previously withdrawn opinion letters should consider asking the DOL to reissue them under its new policy.

The California Court of Appeals held late last week that a plaintiff does not have standing to pursue California Private Attorneys General Act (PAGA) claims on behalf of the state or other employees once he accepts an offer to settle his individual claims.  The court in Kim v. Reins International California, Inc. B278642 (Dec. 29, 2017), held that once the plaintiff accepted the settlement offer, he no longer qualified as an “aggrieved employee” within the meaning of the statute.  The case expands the potential impact of offers of judgment in California wage-hour class actions.

Continue Reading Cal. Court: No Standing to Continue PAGA Claim After Settlement

In its fifth major decision in five days, the Board overruled a 2016 decision that limited what changes to terms and conditions of employment that an employer can make without bargaining.  In so doing, the Board returned to a broader view of what it means to maintain the “status quo.”  In Raytheon Network Centric Systems, 365 NLRB No. 161 (Dec. 15, 2017), the Board held that employers do not need to bargain when “the employer takes actions that are not materially different from what it has done in the past.”  In Raytheon, that meant the employer lawfully modified employee medical benefit plans after the CBA expired because the employer had made similar modifications annually for 11 years.

Continue Reading NLRB: No Duty to Bargain Over Routine Changes to Health Plans

Late Friday evening, the NLRB overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), the decision that permitted unions to organize “micro-units” of employees.  In PCC Structurals, Inc., 365 NLRB No. 160, the Board returned to “the traditional community of interest standard” for evaluating the appropriateness of a petitioned-for bargaining unit.

Continue Reading NLRB Overrules Specialty Healthcare

Today, the NLRB issued two landmark cases reversing precedent on the Board’s test for work rules and joint employment. In The Boeing Company, 365 NLRB No. 154, the Board reversed a 2004 decision that prior Boards used to find unlawful “a large number of common-sense work rules and requirements that most people would reasonably expect every employer to maintain.” In Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156, the Board overruled the Browning-Ferris joint-employment test and returned to requiring direct control over essential terms and conditions of employment before it will find joint employment status.

Continue Reading NLRB Changes Course on Work Rules and Joint Employment

On Monday, December 11, 2017, the Board issued a decision holding that Administrative Law Judges can approve an employer’s offer to settle unfair labor practice charges so long as the settlement offer is “reasonable,” even if the general counsel and charging party object to the settlement.  The case reverses Obama-era precedent that held that an ALJ can approve a settlement only if the settlement provides “complete relief” for every alleged unfair labor practice. That standard made it impractical for employers to settle unfair labor practice charges because employers received no compromise in exchange for foregoing full-blown litigation.

Continue Reading NLRB Returns to “Reasonable” Settlements

In a series of recent decisions, courts have weighed in on a spate of ERISA lawsuits challenging retirement plans private universities offer to their employees.  These rulings, most of which allowed claims to proceed past the motion to dismiss stage, highlight the variation in standards courts apply when weighing ERISA fiduciary suits.  Moreover, they underline the need for plan fiduciaries to review the performance and fees of their plans’ service and investment providers on a regular basis to determine whether the providers’ fees are reasonable and their continued retention is appropriate.

Continue Reading Courts Weigh in on Challenges to University Retirement Plans

The newly-appointed NLRB General Counsel Peter Robb issued his list of priorities in Advice Memo 18-02 released December 4, 2017.  The Memo sets forth the “Mandatory Submissions to Advice” – the kinds of cases Regional Directors must submit to the Division of Advice to obtain guidance before issuing a complaint.  The Advice Memo signals the GC’s intent to assist the Board in undoing much of the Obama-era Board’s sweeping changes to federal labor law.  As predicted, many of the priorities focus on the Board’s handbook-related changes, granting employee access to employer email systems, and confidentiality rules in investigations.

Continue Reading New NLRB General Counsel Sets Out Priorities

The Sixth Circuit yesterday outlined narrow circumstances under which an employer can show good faith reliance on a Department of Labor opinion letter in setting wage-hour policy.  In Perry v. Randstad General Partner, No. 16-1010 (6th Cir. Nov. 20, 2017), the Court held the employer did not establish a good faith reliance defense despite undisputed evidence that the employer relied on a 2005 DOL opinion letter in determining that its employees met the administrative exemption of the FLSA. The opinion serves as a note of caution to employers relying on DOL opinion letters for wage-hour policies.

Continue Reading Federal Court of Appeals Cautions Employer Reliance on DOL Opinion Letters

On Monday this week, Arizona Governor Doug Ducey signed Executive Order 2017-07 to provide “second chance opportunities” for the 1.5 million Arizonans with criminal records.  The Order prohibits state agencies from initially questioning job applicants about their criminal records.  Arizona cities Phoenix, Tempe, and Tucson already have similar laws for city job applications.

Importantly, Ducey’s Order still allows state agencies to check the applicant’s criminal record—just after the applicant has received an initial interview—and the Order does not apply to private Arizona employers.  Ducey affirmed that he doesn’t “set policy for private employers.”  Instead, he stated, “We’re trying to lead the way in terms of examples from state government.”

Arizona joins 29 other states that have prohibited questions about criminal records in initial state employment applications.  Ten states, including California, have imposed the same limitation on private employers.

The “ban the box” movement continues to spread.  Employers should check local laws before creating application forms or interview questions that call for the applicant’s criminal history.