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Overtime Ruling Turns on Weight of Drivers' Vehicles

XpertHR • November 21, 2017
Because they spent some of their time driving small vehicles weighing 10,000 pounds or less each workweek, delivery drivers for a Baltimore-based bakery chain were owed overtime under the Fair Labor Standards Act (FLSA), a federal appellate court has ruled.

Supervisor Training: Answers to Your Most Pressing Questions

XpertHR • November 21, 2017
Having clear employment policies is crucial for employers, but those policies are often only as good as the supervisors entrusted with carrying them out. Robin Shea, a partner at the national law firm Constangy, Smith, Brooks & Prophete, and author of the firm’s award-winning Employment & Labor Insider blog, speaks frequently on training issues, and offers her expertise in XpertHR’s webinar, Supervisor Training – Your ‘First Line’ of Defense. Here are a few of Shea’s insights reformulated in a Q&A

Timing Is Everything: FMLA Claim Survives Summary Judgment Where Employer Began Auditing Employee’s Records The Day After FMLA Leave Request

Jackson Lewis P.C. • November 21, 2017
Employees requesting, currently taking, or just returning from leave under the Family and Medical Leave Act (“FMLA”) can be terminated for legitimate reasons that are unrelated to their FMLA leave. This point is exemplified by Jennings v. Univ. of N.C., N.C. Ct. App., Case No. COA16-1031 (July 5, 2017), which was the subject of a prior post on this Blog. In Jennings, the North Carolina Court of Appeals ruled that an employer did not violate the FMLA by proceeding with a disciplinary hearing and termination of an employee because of allegations of misconduct that arose prior to her FMLA leave.

Restaurant Supply Driver’s Federal FLSA Claims Shown the Exit Ramp on MSJ Ruling

Jackson Lewis P.C. • November 21, 2017
Finding not a “scintilla” of evidence to support claims of minimum wage violations, a New York federal district court in Yu Sen Chen et al v. MG Wholesale Distribution Inc. et al, 16-cv-04439 (E.D.N.Y.) dismissed a proposed collective action (and refused to exercise supplemental jurisdiction of the corresponding state law claims). In doing so, the district court relied on simple arithmetic and the plaintiff’s own admissions.

MeToo: Revisiting Policies in a Trending Workplace

Ogletree Deakins • November 21, 2017
From Twitter hashtags to news media talking points, #MeToo has come to powerfully symbolize what many have termed a “watershed moment” for modern American culture on the issues of sexual harassment and sex discrimination. And it’s easy to see why: It is estimated that #MeToo has been retweeted almost 2 million times across 85 countries. It appears that the movement is picking up steam, with women (and men) of all backgrounds and all professions sharing their stories of abuse and harassment.

Serial Plaintiffs’ Lawyer Commences Latest Round of Hotel Litigation: How Can Hotels Protect Themselves?

Ogletree Deakins • November 21, 2017
Just as one flood of lawsuits against Arizona businesses finally dries up, another downpour begins. Peter Strojnik of Phoenix, the same attorney who filed more than 1,100 lawsuits that drew the attention of the Arizona attorney general, has filed approximately 60 new lawsuits under the Americans with Disabilities Act (ADA) against motels and places of lodging in the last three months in federal court in Arizona. Fernando Gastelum, an Arizona resident with a prosthetic leg who uses a wheelchair, is the plaintiff in each of these cases. In each suit, Gastelum claims that he visited the hotel or motel’s website to determine if the property provides the accessible features necessary for him to be able to stay there. He claims that the websites failed to disclose sufficient information about their accessibility and that, upon visiting each hotel or motel, he discovered barriers to access, including a lack of accessible parking spaces, steep ramps, stairs with open risers, and other alleged ADA violations. He seeks orders requiring the hotels and motels to remove the alleged access barriers and revise their websites, and demands damages, including punitive damages and attorneys’ fees.

Ninth Circuit Concurs that Workweek, Not Individual Hour, is Relevant Timeframe for Determination of Minimum Wage Compliance

Ogletree Deakins • November 21, 2017
In an issue of first impression, the Ninth Circuit joined the Second, Fourth, Eighth and D.C. Circuits (and the position adopted by the Department of Labor) that, in determining whether an employer has complied with the minimum wage provisions of the Fair Labor Standards Act (“FLSA”), the proper inquiry is whether the total compensation for a given workweek divided by the total hours for that week meets or exceeds the minimum wage. Douglas v. Xerox Business Servs., LLC, 2017 U.S. App. LEXIS 22967 (9th Cir. Nov. 15, 2017). Employers should be aware that this case addresses only federal, and not state, wage and hour law in the Ninth Circuit.

How Do Employers Calculate FMLA Leave Around the Holidays?

Franczek Radelet P.C • November 21, 2017
It’s that time of year — my kids are already making changes to the fourth draft of their Christmas wish list, holiday music has been playing on my local radio station for four weeks now, and I’m just about ready to claim the couch where I will spend most of Thanksgiving week in my PJs watching football and eating leftover turkey!

Department of Transportation Adds Four New Drugs to Testing Panel

FordHarrison LLP • November 21, 2017
Executive Summary: On November 13, 2017, the Department of Transportation (DOT) announced that it is amending its drug-testing program to require testing for synthetic opioids. The new DOT regulations now harmonize with the Department of Health and Human Services (HHS) Mandatory Guidelines for Federal Workplace Drug Testing Programs using Urine (HHS Mandatory Guidelines), published January 23, 2017.

A “New Look” for Salon Employee Commission Arrangements in California

Ogletree Deakins • November 21, 2017
A new addition to California law changes the definition of commission pay for licensed employees of beauty salons and barber shops. Under the new law, certain common arrangements, such as agreements to pay stylists on a commission-only basis or on a minimum wage plus commissions basis, are no longer considered to be commission-based pay.
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