Wage and Overtime Law in the 2018 Landscape: Updates and Developments You Need to Know
The year 2017 has seen significant changes in wage and hour regulations. This trend is expected to continue this 2018 as various related developments are continuously advanced at the federal, state, and local levels. New legislative efforts mainly revolve on tips, removal of subminimum wage, and the U.S. Court of Appeals’ review of “dual jobs” regulation for tipped workers. Issues on worker classification, joint employment, and scheduling laws will also contribute to the evolution of the wage and overtime landscape.
This course offers an overview of the latest trends and best compliance practices with respect to the changes in wage and hour regulations. A panel of thought leaders and practitioners brought together by The Knowledge Group will help firms better understand how to apply this trend to their company.
Key topics include:
- Wage and Overtime Law: Recent Developments
- Enforcement Trends
- Notable Cases
- Best Compliance Practices
- 2018 Outlook
NERA Economic Consulting
- Independent Contractor Misclassification – Legal experts have warned that the April 2018 Dynamex decision in California will make defending contractor relationships more difficult for Defendants in independent contractor misclassification cases. Dynamex shifted the test used to determine an employer-employee relationship under California law to the simpler ABC test, which includes only three elements. Moreover, the ABC test starts with the assumption that workers are employees instead of independent contractors and then shifts the burden to employers to prove workers are not employees for purposes of state wage and hour laws. Despite being new to California, the ABC test has a broader bearing since it is already the precedent in other states, such as New Jersey. The Panel will discuss how the ABC test has been applied in prior cases, including Dynamex, and how the Dynamex has already impacted California misclassification cases.
- Joint Employer Allegations – In June 2017, the DOL withdrew the Obama era guidance related to determining joint employer status under the FLSA. Panelists discuss whether the use and interpretation of joint employer tests have changed since the guidance was withdrawn.
- The De Minimus Doctrine –Employers have relied on the De Minimus Doctrine to argue that small amounts of time spent on activities before clocking in or after clocking out are exempt from the FLSA. The California Supreme Court is now considering whether the De Minimus Doctrine should continue to be relevant to determining violations of state wage and hour laws. The panel will talk about how the De Minimus Doctrine has been applied in both FLSA and California cases, focusing on the time threshold for “too small” to matter. They will also discuss how evidence might change in support of liability and damages calculations in California if the De Minimus Doctrine can no longer be applied to state wage and hour claims.
- The “PAID” Program – The DOL’s WHD has announced a 6-month trial period for what is being called the Payroll Audit Independent Determination (“PAID”) Program. The program offers employers the chance to avoid civil penalties or liquidated damages in potential overtime and minimum wage claims under the FLSA by paying back pay owed to the affected employee(s). The Panel will discuss the types of calculations that employers would need to perform to determine whether there is any potential exposure under the FLSA that can be addressed through the PAID Program.
- Overtime Payment Calculation – The recent California Supreme Court decision in Alvarado v. Dart Container Corporation of California changed the basis for calculating overtime payments when an employee received a flat non-discretionary bonus. The Panel will present how to use the new method to incorporate flat bonuses into the calculation of the regular rate.
- Supreme Court decision in Encino Motorcars v. Navarro, on April 2, 2018, the Supreme Court ruled that FLSA exemptions should not be narrowly construed and, instead, should be given a “fair reading”. The panel will discuss the potential implications of this departure from long-standing FLSA precedent in the courts as well as employee exemption issues that continue to be problematic for employers.
- FLSA “Modernization”. The FLSA was enacted 80 years ago in 1938. Several provisions of the FLSA are difficult for employers to monitor in 2018. The panel will highlight areas in which the FLSA seems to conflict with the modern 2018 workplace, including employees working remotely and private sector compensatory time for flexible work arrangements.
- Tip Income Protection Act of 2018. This bill was signed into law on March 23, 2018. The Act prohibits employers (including managers and supervisors) from keeping any portion of employee tips even if an employer takes a tip credit for those employees. The panel will discuss the impact of the Act on industries where employees receive tips, including voluntary tip pooling arrangements, and the trend of paying tipped employees full minimum wages and will address a brief history of tip credits.
Who Should Attend:
- Wage & Hour Litigation Attorneys
- Wage & Hour Consultants
- Employment and Labor Lawyers
- Human Resources and Personnel
- Employment Law Advisors
- Employee Relations Professionals
- Payroll Managers
- In-House Counsel
- Top Level Management
- Other Related/Interested professionals
Jennifer Williams is a member of Cozen O’Connor’s Labor & Employment department. Jennifer has focused exclusively on representing management in all facets of labor and employment law for more than 15 years. She represents employers in labor and employment litigation before federal and state courts as well as administrative agencies, including the Equal Employment Opportunity Commission and the Department of Labor. Jennifer has extensive experience in litigating a full-range of employment disputes, including individual and class action wage/hour claims, disability, age, gender, and race discrimination and harassment matters, and retaliatory discharge. Jennifer also regularly litigates disputes involving employment contracts, as well as non-compete and confidentiality agreements.
Jennifer Williams is a member of Cozen O’Connor’s Labor & Employment department. Jennifer has focused exclusively on representing management in …
During her 15 years as an economic consultant and testifying expert, Dr. Newlon has prepared expert reports, testified, and consulted on matters involving a wide range of topics related to FLSA, state labor law, and antitrust wage suppression. Dr. Newlon has analyzed labor and antitrust claims in individual and class/collective actions (addressing questions at certification, liability, and damages phases).
In labor litigation, Dr. Newlon has significant experience with contractor misclassification, joint-employer claims, and allegations of wage and hour law violations. She has written reports and testified about classwide liability and performed damages calculations for wage and hour allegations, including extensive experience with violations of California labor statutes resulting in unpaid overtime, incorrect regular-rate calculation, missed meal penalties, timesheet rounding bias, and waiting-time and itemization penalties.
During her 15 years as an economic consultant and testifying expert, Dr. Newlon has prepared expert reports, testified, and consulted …
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Method of Presentation:
Basic Knowledge of Wage and Hour Laws
NY Category of CLE Credit:
Areas of Professional Practice
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About Cozen O’Connor
Established in 1970 and ranked among the top 100 law firms in America, Cozen O’Connor has more than 700 attorneys who help clients manage risk and make better business decisions. The firm counsels clients on their most sophisticated legal matters in all areas of the law, including litigation, corporate and regulatory law. Representing a broad array of leading global corporations and middle market companies, Cozen O’Connor services its clients’ needs through 27 offices across two continents. Cozen O’Connor’s Labor & Employment Department boasts a team of 70 lawyers based in offices in 10 states and Washington, D.C. We provide ongoing advice and litigation defense on a comprehensive range of employment law issues.
About NERA Economic Consulting
NERA Economic Consulting is a global leader in economic analysis and consulting. With nearly 400 experts in 25 offices around the world, the firm applies economic, finance, and quantitative principles to solve complex business challenges and legal questions.
The firm’s antitrust economists provide a full range of theoretical and empirical economic analysis and testimony in matters involving mergers and acquisitions, antitrust litigation, and competition policy. NERA's experts assess and, when appropriate, testify to the economic merits of allegations of anticompetitive mergers and acquisitions, foreclosure and exclusionary conduct, horizontal and vertical restraints, monopolization and abuse of dominant position, and collusion. NERA's experts also have extensive experience estimating damages in antitrust matters, as well as assessing the appropriateness of class certification.