California employers may remember the scramble that occurred in 2016 after the U.S. Department of Labor (“DOL”) under the Obama administration revised the regulations governing white-collar exemptions under the Fair Labor Standards Act (“FLSA”). At that time, the DOL intended to more than double the minimum salary threshold for exempt employees under federal law.

The California Supreme Court last year adopted a new test, called the ABC Test, for use in cases involving the question of when is a worker an employee versus an independent contractor under IWC Wage orders. That case, Dynamex Operations West Inc. v. The Superior Court of Los Angeles County, (“Dynamex”) was a class action which involved delivery drivers suing their employer for misclassifying them as independent contractors rather than employees. The ABC test, intended to simplify the legal analysis on these types of cases, was a win for plaintiffs and made it more likely that a worker would be found an employee than before. You can read our previously posted E-Blast about the Dynamex decision here.

The Ninth Circuit has revived two class actions against Nike Retail Services, Inc. and Converse, Inc. and they both will now have to face employee allegations that they violated the California Labor Code by failing to pay employees for time spent during “off the clock” exit inspections when leaving the stores.

In Rodriguez, et al. v. Nike Retailers, Inc., the lead plaintiff, Isaac Rodriguez (“Rodriguez”) alleged that employees should have been compensated for the time spent “off the clock” when waiting for the manager to check their bags for stolen items prior to leaving for the day. Similarly, in Chavez, et al. v. Converse, Inc. the lead plaintiff, Eric Chavez sought compensation for time spent submitting to “off the clock” exit inspections every time employees left the store.

Why You May Be Seeing “Fight for $15” Buttons Worn By In-N-Out Workers

On Monday, the U.S. Supreme Court denied In-N-Out Burgers' ("In-N-Out") petition to review a decision that upheld a ruling by the National Labor Relations Board (“NLRB”) that ordered In-N-Out to lift its ban on workers wearing “Fight for $15” buttons with their work uniforms.

In-N-Out, as Californian’s are well aware, is a fast food chain famous for its “animal style” burgers and fries as well as its throwback to the 1940s era when the chain first opened its doors. In-N-Out hasn’t changed much since its opening, with clean-cut matching uniforms and high standards for customer service, including being greeted with perky smiles. The “Fight for $15” is a national political movement advocating for the federal minimum wage to be raised to $15 per hour. Currently, the federal minimum wage is $7.25/hour and has not increased since 2009.

As we previously reported here, in May 2016 the U.S. Department of Labor (“DOL”) issued a new overtime exemption rule that had significantly raised the minimum salary threshold required for an employee to qualify for the federal Fair Labor Standards Act (“FLSA”) “white collar” overtime exemption from $23,660 to $47,476. The rule was set to go into effect on December 1, 2016 but shortly before the rule took effect, the proposed rule had been blocked by a Texas federal courthouse after a challenge from 21 states and subsequently invalidated in September 2017.

With today’s technology and, specifically, the prevalent use of social media by the workforce at large, companies and business alike have taken to various social media sites to get their messages out. Labor unions are no different and have utilized social media platforms such as Facebook and Twitter to organize workers and push their agenda forward.

On February 20, 2019, United Farmworkers for America (“UFW”) went “live” for an hour on Facebook to discuss H-2A worker’s rights and to answer any questions that they may have regarding their employment in the United States. The UFW discussed several topics during the live video, such as California’s new overtime requirements, California’s Adverse Effect Wage Rate (“AEWR”), proposed changes to the H-2A program, transportation requirements, and reimbursement costs for traveling to the farm in the United States within the first week of work. The video is available on Facebook and can be found here. Please be advised the video is in Spanish (and is an hour long); however, we have summarized what was discussed in this video for your convenience. 

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