Andrew Volin

Andrew Volin

Sherman & Howard L.L.C.

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The War on Employment Arbitration

The Seventh Circuit just created a split in the Federal Courts of Appeals by ruling an employment arbitration provision that did not permit arbitration of collective claims was not enforceable because it violated the National...more

6/1/2016 - Arbitration Agreements Class Action Class Action Arbitration Waivers D.R. Horton Employment Contract NLRA NLRB Split of Authority

Labor & Employment Advisory: New Overtime Regulations Announced

Under the Federal wage and hour law, the Fair Labor Standards Act (FLSA), non-exempt workers are required to be paid overtime pay – 1.5 times their regular rate – for all hours worked in excess of forty (40) in a week There...more

5/19/2016 - DOL Exempt-Employees Final Rules FLSA Minimum Salary Misclassification Non-Exempt Employees Over-Time Wage and Hour White-Collar Exemptions

New Overtime Pay Minimum Salary Doubles

$47,500 is the new minimum annual salary level ($914/week) for the white collar overtime exemption, according to an announcement [expected later] this week by the Department of Labor. This more than doubles the current...more

5/19/2016 - DOL FLSA Minimum Salary Non-Exempt Employees Over-Time Wage and Hour White-Collar Exemptions

Tipped Employee Splitting Hairs

Tipped employees can be paid an hourly rate less than the minimum wage, as long as their wages, along with their tips, are at least the minimum wage. Colorado’s Federal Court just rejected a claim brought by a restaurant...more

2/15/2016 - DOL Minimum Wage Tipped Employees Wage and Hour

Retaliation Encyclopedia

The EEOC just released proposed enforcement guidance on retaliation, and at 73 pages, it has everything you ever wanted to know on the topic. This is the first time since 1998 that the EEOC has updated its guidance on this...more

1/26/2016 - ADA ADEA EEOC Enforcement Guidance Equal Pay Act GINA Pay Discrimination Retaliation Title VII

Not Worth Fighting Over?

In wage and hour disputes, sometimes an employer would rather just pay a claim instead of fighting it. Maybe the claim is only worth several hundred dollars and attorney’s fees would be a far greater expense. Or maybe not...more

1/22/2016 - Campbell Ewald v Gomez Class Action Mootness Rule 68 SCOTUS Settlement Offer Wage and Hour

Joint Employment for Wage/Hour

The Department of Labor’s Wage and Hour Division (“WHD”) has issued new guidance on joint employer status. The guidance re-emphasizes that companies that share workers with associated companies, or that subcontract work to...more

1/21/2016 - DOL FLSA Joint Employers MSAWPA New Guidance Staffing Agencies Wage and Hour

No Arbitration for Masseuse

The Tenth Circuit just ruled that an arbitration agreement between a massage student and her school was not enforceable, because it would not permit the effective vindication of the student’s statutory rights. Nesbitt v....more

1/7/2016 - Arbitration Agreements Class Action FLSA Motion to Compel Unenforceable Contract Terms Unpaid Wages

Protection for (Some) HR Managers

Like most employment statutes, the Fair Labor Standards Act (“FLSA”) prohibits retaliation against employees who file complaints. The Supreme Court ruled in 2011 that this protection even extends to oral complaints at work....more

12/17/2015 - Anti-Retaliation Provisions Employer Liability Issues FLSA Managers Termination

Triple Dipping Remedies

The Tenth Circuit recently announced that employees who prove they are owed wages under both Federal and Colorado state law may be entitled to the unpaid wages, plus penalties under both statutes, possibly recovering more...more

12/15/2015 - Appeals Liquidated Damages Penalties Treble Damages Unpaid Wages Wage and Hour

“Copy-Cat” Defense Prevails – Twice

Employers may be sued for discrimination more than once, but usually later lawsuits are based on different events. A Texas employer recently persuaded a jury that new claims against it were fabricated by employees who knew...more

12/4/2015 - Admissible Evidence Defense Strategies Employment Discrimination

Colorado Vacation Pay Update

Earlier this month, we alerted you that the Colorado Department of Labor was considering an enforcement position with respect to “use it or lose it” vacation policies. The CDOL recently issued a FAQ document about Colorado’s...more

10/22/2015 - DOL Employee Handbooks Employee Rights Employer Liability Issues Policies and Procedures PTO Sick Pay Vacation Leave Vacation Pay Wage and Hour Wages

Bad Timing, but No Punitives

Firing someone right after they complain of discrimination can result in a retaliation claim, even if the employer thinks it has a good reason unrelated to the complaint. The Tenth Circuit just upheld a jury verdict in this...more

9/14/2015 - Anti-Discrimination Policies Employment Discrimination Good Faith Hiring & Firing Retaliation

Drug Test Entitles Workers to Union Rep

The NLRB says sending a worker for a drug test is the same as disciplinary action and the worker gets to be accompanied by a Union representative. Manhattan Beer Distribs. LLC, 362 N.L.R.B. No. 192 (August 27, 2015). In this...more

9/10/2015 - Disciplinary Proceedings Drug Testing Employment Policies Hiring & Firing Marijuana NLRA NLRB Union Representatives Unions Workplace Safety Wrongful Termination

Another Mini-Dukes Action Revived

Current and former women employees of Wal-Mart recently won big in the Sixth Circuit in their mini-Dukes discrimination class action. The trial court had ruled that the class action was filed too late, but the court of appeal...more

7/10/2015 - Appeals Class Action Corporate Counsel Disparate Impact Dukes v Wal-Mart Job Promotions SCOTUS Sex Discrimination Statute of Limitations Supervisors Tolling Wal-Mart

Exempt or Not? Service Advisors

The Fair Labor Standards Act (“FLSA”) requires payment of a minimum hourly wage and overtime, unless an employee fits within one of many exemptions. In some parts of the United States, courts had ruled that automobile service...more

3/27/2015 - Automotive Industry Car Dealerships Exempt-Employees FLSA Wage and Hour

Perceived Threat

The Americans With Disabilities Act permits an employer to deny employment to a person who would create a “direct threat” to the safety of himself or others in the workplace. A company with a warehouse operation refused to...more

3/19/2015

Repaid Deduction Saves Day

The Fair Labor Standards Act requires employees to be paid on a salary basis, not hourly, to be exempt under the so-called white collar exemptions, e.g. for executive or administrative employees. ...more

3/12/2015 - Exempt-Employees FLSA Wage and Hour Wage Deductions White-Collar Exemptions

Wal-Mart Plaintiffs Seek to Change the Rules

After the Supreme Court rejected a nationwide class action by female Wal-Mart workers in the 2011 Dukes case, the plaintiffs filed smaller class actions in different parts of the country. Wal-Mart has persuaded several of the...more

12/6/2013 - Class Action Dukes v Wal-Mart SCOTUS Statute of Limitations

On Being a Slave to One’s Job

The 13th Amendment to the Constitution outlawed slavery in the United States, and a federal statute (18 U.S.C. § 1584) makes it a crime to hold someone into involuntary servitude. Recently, a plaintiff asserted an...more

11/20/2013 - Employer Liability Issues

Cop Moved Off Her Beat and Onto FMLA Leave

A police officer in a small town asked for light duty after she hurt her foot off duty. The chief refused because there was no light duty available, the force had only provided it in the past to officers with work related...more

9/19/2013 - Discrimination FMLA Light-Duty Positions Retaliation

“Lies, Damned Lies, and Statistics”

This phrase, popularized by Mark Twain -- who attributed it to a British Prime Minister -- can be used to describe both the positive and negative power of numbers to illustrate a point. Recently, it gained new meaning in the...more

7/11/2013 - Discrimination EEOC Firemen Hiring & Firing Hiring Statistics Job Applicants Race Discrimination

Wal-Mart Continues Winning Streak In Regional Class Actions

Female workers have sued Wal-Mart in a number of cases around the country, following the Supreme Court ruling in 2011 rejecting a nationwide class action. These new regional cases often make the same allegations of...more

7/11/2013 - Class Action Discrimination Gender Discrimination Gender-Based Pay Discrimination Job Promotions Sex Discrimination Wage and Hour Wages Wal-Mart

Fifth Regional Mini-Dukes Class Action Brought Against Wal-Mart

A fifth regional class action gender discrimination case has been filed against Wal-Mart. This latest case, brought in Wisconsin, claims Wal-Mart discriminates against women in pay and promotions at the store level in states...more

3/12/2013 - Discrimination Dukes v Wal-Mart Gender Discrimination Job Promotions Wages Wal-Mart

Witness Statements No Longer Exempt from Production to Union

Employers who obtain witness statements in anticipation of litigation or grievances often contend the statements are exempt from the duty to provide information to the union, relying on the NLRB's 1978 decision in...more

1/10/2013 - American Baptist Anheuser-Busch Balancing Test Confidential Documents NLRB Section 7 Witness Statements

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