Wage & Hour

Expert Analysis

• DOL's New Retaliation Focus Requires Employer Vigilance

  

  In light of the U.S. Department of Labor’s recently issued bulletin signaling a wide-sweeping approach and enforcement posture to even subtle forms of retaliation, employers must ensure they have a solid framework for fair treatment, prompt investigation and appropriate resolution of employee complaints, says Mark Tabakman at Fox Rothschild.

• To Close Pay Gaps, Laws Must Shift Burden To Employers

  

  To address the scourge of gender- and race-based pay gaps, legislators should follow the recent lead of several jurisdictions by requiring companies to advertise salary ranges with job postings and prohibiting reliance on past pay, reversing the information asymmetry that gives employers more bargaining power, say Christine Webber and Rebecca Ojserkis at Cohen Milstein.

• Bankruptcy Rulings Highlight Split On Excusable Neglect

  

  The Fifth Circuit's recent decision in CJ Holding, and a New York federal bankruptcy court's recent decision in Westinghouse, contribute to a growing split on the weight assigned to various factors when courts decide what may constitute excusable neglect in bankruptcy filing, say attorneys at Cullen Dykman.

• Avoiding Surprise Taxation Of Employment Settlements

  Excerpt from Practical Guidance

  

  Sandra Cohen at Cohen & Buckmann discusses how to avoid unwelcome tax-related payments in connection with settling an employment claim, as the extra cost can significantly decrease the perceived value of an offer and push the parties further apart.

• Mass. 7-Eleven Ruling May Threaten Some Franchise Models

  

  A recent ruling by Massachusetts’ highest court in Patel v. 7-Eleven — holding that franchisees can be classified as employees entitled to wage and hour benefits — may hint at the future of U.S. franchise law, and means that control exerted over franchisees must be carefully scrutinized going forward, say Peter Loh and Betsy Stone at Foley & Lardner.

• Justices Must Apply Law Evenly In Shadow Docket Rulings

  

  In recent shadow docket decisions, the U.S. Supreme Court has inconsistently applied the requirement that parties demonstrate irreparable harm to obtain injunctive relief, which is problematic for two separate but related reasons, says David Hopkins at Benesch.

• Employer's Agenda

  

  In this Expert Analysis series, in-house employment attorneys discuss the most important issues companies and counsel should plan for amid the current business landscape, and offer practical advice for how to address the year's unique challenges.

• Conservative Justices' Silence May Hint At Fate Of PAGA Case

  

  Though the tone of recent oral arguments in Viking River Cruises v. Moriana suggested skepticism that California Private Attorneys General Act claims are comparable to class actions and thus can’t escape arbitration, the reticence of the conservative justices may point to a different outcome, say Corinne Spencer and Antwoin Wall at Pearlman Brown.

• Calif. Wage And Hour Reminders As Telework Endures

  

  More than two years after the COVID-19 pandemic began, remote work arrangements remain prevalent in California, and employers in the state face ongoing compliance risks due to myriad laws requiring minimum and overtime wages, meal periods and rest breaks, and postings for teleworking employees, says Michael Nader at Ogletree.

• Threat To False Claims Act Lurks In High Court PAGA Case

  

  At Wednesday's oral arguments in Viking River Cruises v. Moriana, the U.S. Supreme Court considered whether employees may waive their right to pursue representative actions under the California Private Attorneys General Act, but the decision could imperil the future of False Claims Act qui tam actions, says R. Scott Oswald at The Employment Law Group.

• And Now A Word From The Panel: Doing The MDL Math

  

  A recent decision by the Judicial Panel on Multidistrict Litigation in a labor case illustrates the hurdles faced by those seeking MDL centralization when there are relatively few underlying cases — but other factors may also influence the panel's decision on whether to create an MDL, says Alan Rothman at Sidley.

• The Stakes Are High In Supreme Court Arbitration Rights Case

  

  Recent oral arguments before the U.S. Supreme Court in Morgan v. Sundance highlight how the justices’ eventual ruling could engraft a prejudice requirement into a party’s waiver defense when the Federal Arbitration Act is implicated, and potentially define how early in a proceeding the right to arbitrate must be asserted, says Kate Dodoo at McAfee & Taft.

• 2nd Circ. Title VII Ruling Guides On Joint Employer Doctrine

  

  Although the Second Circuit recently affirmed the dismissal of Felder v. U.S. Tennis Association, it clarified how courts can determine whether two employers are jointly liable for Title VII claims, so entities that use staffing companies or contract workers should follow several best practices to limit joint employer liability, say William Manuel and Anne Yuengert at Bradley Arant.