Wage and Hour

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On January 26, 2023, the Michigan Court of Appeals reversed the lower court decision that would have gone into effect on February 19, 2023. That decision, among other items, would have increased Michigan’s hourly minimum wage to $13.03 and would have greatly expanded the state’s paid sick leave requirements. The Court of Appeals decision means that employers do not have to make changes to their paid sick leave policies that were drafted in compliance with the Michigan Paid Sick Leave Act that went into effect in 2019. Further, businesses no longer have to scramble to adjust minimum wage rates for both tipped and non-tipped workers as required under the lower court decision. Michigan’s hourly minimum wage will remain at $10.10. The tipped minimum wage remains at $3.84 an hour. …

Continue Reading Michigan Paid Sick Leave and Minimum Wage Update

The Colorado Division of Labor and Employment (CDLE) had a busy last few weeks of December in 2022, revising a number of its Interpretive Notice and Formal Opinions (INFOs). On…

Continue Reading New Clarity: Colorado Employer Rights When Employee Fails to Return Money or Property at Separation

Key Points

  • On October 13, 2022 the Department of Labor (DOL) published a notice of proposed rulemaking advising that it intends to alter the test used to distinguish “independent contractors” from employees under the Fair Labor Standards Act (FLSA).
  • The proposed rule will rescind the 2021 Independent Contractor Rule and replace it with a multifactor, totality-of-the-circumstances test that will likely cause an increase in the number of workers classified as employees.

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Continue Reading Department of Labor Proposes New Rule to Distinguish Independent Contractors from Employees

On July 19, 2022, in the decision, Mothering Justice et al., v. Dana Nessel et al. (Nessel), the Michigan Court of Claims (Court)  held that in 2018 the Michigan Legislature unconstitutionally amended two voter-initiatives, the Earned Sick Time Act, PA 338, and the Improved Workforce Opportunity Wage Act (IWOWA), PA 337, by amending the proposals in the same legislative session that the Legislature enacted the two initiatives. The Legislature’s tactic of adopting and amending the voter initiatives subverted the constitutional protections against “legislative interference with the People’s constitutional right of initiative.” The Court’s holding nullified the amendments to the initiatives, 2018 Public Act (PA) 368 (IWOWA) and 2018 PA 369 (renamed as the Paid Medical Leave Act), and reinstated the original, more expansive terms of PA 338 and PA 337.
Continue Reading Michigan Court Reinstates Minimum Wage and Sick Leave Initiative Unconstitutionally Amended by State Legislature

In a landmark 8-1 ruling, the U.S. Supreme Court, in Viking River Cruises, Inc. v. Moriana (No. 20-1573, June 15, 2022), provided California employers with much needed relief from the onslaught of wage-hour claims brought under the California Labor Code Private Attorneys General Act of 2004, Cal. Labor Code sections 2698 et seq. (the “PAGA”).  The Court emphasized the preemptive effect of the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (the “FAA”), finding that the FAA preempts a rule of California law that invalidates arbitration agreements containing waivers of the right to assert representative PAGA claims.  The Court overruled the California Supreme Court’s rule to the contrary in Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal. 4th 348, 380 (2014).  The immediate impact of Viking River is to authorize motions by California employers utilizing mandatory arbitration agreements with class action waivers to dismiss PAGA claims brought in court or, alternatively, to compel arbitration of them.
Continue Reading U.S. Supreme Court Hands California Employers a Huge Win: Under the Federal Arbitration Act, Arbitration Agreements with Class Action Waivers Require Arbitration of PAGA Claims

In a unanimous 8-0 decision, in Southwest Airlines Co. v. Saxon, the U.S. Supreme Court (Court) held that airline cargo ramp supervisors that assist with loading and unloading cargo constitute a class of workers engaged in foreign or interstate commerce and are exempt under the from the scope of the Federal Arbitration Agreement (FAA). Justice Thomas authored the opinion on behalf of the Court (Justice Barret was recused from the case) and set forth a two-part analysis that (1) defined the relevant “class of workers” and (2) determined whether the class of worker is “engaged in foreign or interstate commerce.”…
Continue Reading SCOTUS Nixes Forced Arbitration Clause in Southwest Employment Contract of Cargo Ramp Supervisor

In the last quarter of 2021, 69% of the 2.050 employees surveyed by Global Workplace Analytics and Owl Labs reported working remotely during the pandemic. One third of employees expressed a strong preference for continuing to work remotely, including changing jobs if necessary. Clearly with help from technology, working remotely is rapidly becoming the new normal for many employees. In response to employee preferences in a tight labor market, employers are pivoting to incorporate remote work into their business models. The pivot can morph into a legal hurdle, though when an employee’s remote work location is outside the state in which the employer is located (employer’s home state).
Continue Reading Employers with Out-of-State Employees: Method for Assessing Differences in Wage & Hour Obligations