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New Laws Affecting New York City Retail And Fast Food Workers

Posted in Labor Law, New Legislation and Regulations

On May 30, 2017, the Mayor of New York City (“NYC”) signed into law five bills related to workplace reform in the retail and fast food industries. These laws are set to take effect on November 26, 2017.

New Laws Applicable to Retail Industry in NYC

Intro 1387 (On-Call Scheduling), bans the practice of on-call scheduling for retail employees in NYC. The law applies only to retail employers with twenty or more employees at one or more stores within NYC. Under this new law, an employer will be prohibited from (1) scheduling a retail employee for an on-call shift; (2) cancelling a work shift with fewer than 72 hours’ notice; (3) requiring a retail employee to work with fewer than 72 hours’ notice, unless the employee consents to working in writing; and (4) requiring a retail employee to contact an employer to confirm whether the employee should report for his/her scheduled shift in the 72 hours before the start of the shift. However, a retail employer is permitted to make schedule changes or cancel shifts within the 72 hour window if it is to give an employee time off or to allow an employee to voluntarily trade shifts with another employee or if the employer’s operations cannot begin or continue.

Read the New Laws Applicable to the Fast Food Industry in NYC here:

Is Panic Really the Best Choice? One Lawyer’s Approach to Analyzing “Substantially Similar Work” Under the California Fair Pay Act

Posted in Employment Contracts and Agreements, Labor Law, New Legislation and Regulations, Wage & Hour

Since the passage of the California Fair Pay act in late 2015 (effective January 1, 2016) and its recent amendments, many employers and commentators have criticized the statute for imposing a vague and dangerous standard on California employers.

The California Fair Pay Act replaces the former “equal work” standard of the Equal Pay Act with a “substantially similar” standard.   The California Fair Pay Act (Labor Code section 1197.5) states:   “(a) An employer shall not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions …”. Chuck-Post-07_web

Some adrenalized commentators have said that any effort to actually conduct this analysis is a fool’s errand. The standard is so vague and shapeless that it is functionally meaningless until a court sharpens the standard with defined tests and definitive holdings. Other commentators suggest that employers abandon any attempt to determine if any two types of work are substantially similar to one another (an analysis required by the statute) and instead focus on the second half of the statutory analysis, which allows employers to justify wage disparities (along race or gender lines) on the basis of a bona fide factors other than sex or race.

While it is true that courts have not yet ordained a specific analysis on how to determine substantially similar work, the statutory standard is not so vague as to defy either analysis or application.  Legislative examples propose that under this standard a male school janitor and a female hotel housekeeper may be engaged in substantial similar work.

Even if the standard were so vague as to defy application (and I don’t believe it is) employers are well served to act reasonably and based upon a good faith and reasonable interpretation of the law. Yes, a court may later hold that some part of any analysis used is incorrect, but the use of a reasonable analytic process (before any court decision considering the law) will likely place an employer in a better position than a company that has skipped the first step of the required analysis.

To read this full article and a general approach to conducting the “substantially similar” work analysis, click here.

Texas Bus Monitor Termination For Incontinence Is Discrimination

Posted in Disability Discrimination, Discrimination, Labor Law, Retaliation and Wrongful Termination

In Green v. Dallas County School District, a Texas jury found that a Dallas County School District (the “School District”) violated Texas disability discrimination laws when it fired a bus monitor who lost control of his bladder on a school bus.  The bus monitor, Paul Green, suffered a known disability – congestive heart failure – and had disclosed that he was taking a diuretic drug for his heart condition. The District said it did not fire the bus monitor “because of” his disability (congestive heart failure) but because of the health and safety violations that occurred. On appeal, the Court of Appeal agreed and reversed the jury verdict.  Green asked the Texas Supreme Court to consider whether the jury could have found he was fired because of a different “disability” – his urinary incontinence.

To read the rest of this article, visit HRUSA at

Colorado Payroll Information May Become Public Record

Posted in Employment Contracts and Agreements, Labor Law, New Legislation and Regulations, Wage & Hour

On April 13, 2017, Governor John Hickenlooper approved Colorado House Bill 17-1021 (“HB 17-1021”) which amends Section 8-1-115 of the Colorado Revised Statutes.  In summary, HB 17-1021 provides that the information an employer provides to the Colorado Department of Labor and Employment (“CDLE”) in connection with complaints and investigations into violations of the State’s wage and hour laws can be treated as a public record and released to the public pursuant to the Colorado Open Records Act, unless the CDLE determines that the information is a trade secret.

To read the rest of the article, visit the HRUSA blog at:

“Saying It’s So, Doesn’t Make It So”- Independent Contractor v. Employee Status

Posted in Employment Contracts and Agreements, Labor Law

Summary of Program

The risks involved in misclassifying a worker as an independent contractor rather than an employee have always been serious. A number of federal and state agencies regulate the proper classification of workers and have the authority to impose significant monetary and non-monetary sanctions against employers who get the classification wrong.

Program Highlights

This informative webinar will cover the legal landscape of independent contractor status. Topics will include:

  • A summary of the various tests applied by federal and state agencies to determine independent contractor status;
  • A summary of the enforcement authority of various federal and state agencies and the sanctions they may impose;
  • The due diligence employers must engage in before classifying a worker as an independent contractor; and
  • California’s law imposing monetary and non-monetary sanctions against employers (and other individuals) who willfully misclassify workers as independent contractors.

If you or your company is currently using independent contractors, this is a webinar you won’t want to miss. Register today!

Date & Time:

Thursday, June 15, 2017

12:00 pm – 1:00 pm

There will be no cost for this webinar.

Approved for one (1) hour MCLE. This program will be submitted to the HR Certification Institute for Review.

Please RSVP by Monday, June 12, 2017.

To RSVP please visit our event page at

Private-Sector Comp Time – Don’t Count On It!

Posted in Labor Law, New Legislation and Regulations, Wage & Hour

Compensatory time off or “comp time” is paid time off that is provided to employees instead of overtime pay.  Comp time has been used by public employers for decades.  There have been several attempts in the past to legalize comp time for private sector employers.  So far, no changes to the law have been passed.

On May 2, 2017, H.R. 1180, the Working Families Flexibility Act of 2017, passed the U.S. House of Representatives 229-197.  All Democrats and six Republicans voted against the bill.  H.R. 1180 must also pass the U.S. Senate in order to be presented to the President.  The White House Administration has already indicated that if H.R. 1180 were presented to the President in its current form, his advisors would recommend that he sign the bill into law.  However, given that at least some Democrats must vote in favor of the bill in the Senate it is unlikely that the President will ever be given this chance.

Read about the amendments to the Fair Labor Standards Act (FLSA) at

Recent NLRB Decisions On Email And Protected Activities

Posted in Employee Privacy Rights, Employment Contracts and Agreements

A recent National Labor Relations Board (NLRB) decision affirmed the Board’s position on employer email policies under the National Labor Relations Act (NLRA).   In Purple Communications, Inc. and Communications Workers of America, AFL-CIO the Board held that employees who may use their employer’s email system for work-related communications have the right to send off-the-clock email communications through their work email system that are protected under the NLRA.  The Act applies to most employees in the private sector, regardless of whether they are unionized, and gives employees the right to participate in activities or communications that are for their mutual aid or protection regarding the terms and conditions of employment.  This could include complaints about management, wages, shift schedules, or safety concerns.

To read the full article, visit the HRUSA page at:

California Employers – Revised Wage Orders Posted

Posted in Labor Law, New Legislation and Regulations, Wage & Hour

The California Department of Industrial Relations (DIR) updated all but Wage Order 14 and 17 recently.  The DIR regulates wages and hours for employees.  The Division of Labor Standards Enforcement (DLSE) enforces the provisions of the wage orders, including the posting requirements.  The Wage Orders are numbered 1 through 17.

The most recent updates were made to reflect the increases in California’s minimum wage.  (To read more on the minimum wage increase, visit my prior L&E Blog here.)  The update shows the minimum wage for 2017 and 2018 as follows:

Effective Date          26 or More Employees         25 or Fewer Employees

January 1, 2017                        $10.50                                               $10.00

January 1, 2018                        $11.00                                               $10.50

Employers are required to post a copy of the applicable Wage Order in an area frequented by employees, such as a breakroom or your employee entrance.  The Wage Orders must be printed on 8.5″ x 11″ paper.  If you are unable to post the Wage Order because of the work location or other conditions, you should inform employees that they may request a copy of the Wage Order from you.  While the Wage Order does not specify what penalties can be imposed for failure to comply with the posting requirements, it is likely Private Attorney General Act (PAGA) penalties could be recovered by employees and/or the DLSE for noncompliance.  PAGA’s default penalty provision under Labor Code section 2699(f) permits the recovery of a penalty of $100 per employee for initial violations, and subsequent penalties in the amount of $200 per employee per pay period.The updated version of the Wage Orders contains a revision date of “12/2016.”  Employers can find this date on the cover page for each Wage Order.J. Schoendienst 20

Given that there are 17 different Wage Orders it may be unclear as to which Wage Order each employer must post.  The DLSE has published a pamphlet to help guide employers in determining which Wage Order must be posted.  This pamphlet can be found here.

Electronic versions of the Wage Orders for posting can be obtained from the DIR Industrial Welfare Commission Wage Order webpage here.  Printed versions of the Wage Orders can be obtained by contacting a local DLSE district office.  A listing of these offices can be found here.

If you have questions about these revisions or which Wage Order applies to you, the attorneys in Weintraub Tobin’s Employment Law Group can assist you.  Contact any one of us if we can be of assistance.

Managing Your Business Under Mandatory Evacuation

Posted in Labor Law, New Legislation and Regulations

Imagine this: Your business lies within a zone that is subject to a mandatory evacuation order from emergency response and law enforcement officials.  Imagine that the evacuation order arises from a fire or imminent flooding.  What do you do?  Shut your business and get out of course.  Most evacuation orders are short lived and the hazardous conditions are realized or not within a short period of time.  But what happens when the evacuation order persists for a number of days or even weeks?  Your plant operations or business remains shut down.  You may have compelling business interests that demand attention during an extended evacuation order.  You may need to respond to security alarms and alerts, or ensure that the premises are adequately secured.  There may be a fear of product spoliation or destruction, and you may face a serious temptation to send a minimal or skeleton crew into the area covered by the evacuation order in order to ensure that those business concerns are addressed.

Lawyers are trained to look at scenarios like this in reverse.  The employer sends a skeleton crew in to secure the premises or ensure that essential processes are completed or that products do not spoil. Something bad then happens.  The wildfire burns down the surrounding area or the flood arrives and employees are injured.  Now what?

To read the full article, visit the HRUSA blog at

Neutral Solutions: Mediation

Posted in Employment Contracts and Agreements, Labor Law, Reductions in Force, Retaliation and Wrongful Termination

The Neutral Solutions Team at Weintraub Tobin specializes in Mediating employment disputes both pre and post litigation. Employment disputes are some of the most contentious and aggressively litigated cases in federal and state courts. The employee is adamant that the employer treated him or her unjustly and violated the law, and the employer reasonably believes that it acted fairly and the employee’s claim is without merit. Based on the disruption and negative impact this type of aggressive and protracted litigation can have on the lives and businesses of those involved, mediation is a smart and worthwhile alternative. For more information, please visit our Employment Mediation Page.