Employment Law This Week®: Two New CA Laws Impacting Hiring, Compensating Short Breaks, Suit Over “Draw” Pay System, Waiving ERISA Time Limits

by Epstein Becker & Green
Contact
We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode!

This week’s stories include ...

(1) Two Questions CA See more +

We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode!

This week’s stories include ...

(1) Two Questions CA Employers Can No Longer Ask Potential Hires

Our top story: California Governor Jerry Brown has signed two new laws that impact the hiring process: (i) a “ban the box” law that restricts when employers can ask job applicants about criminal history, and (ii) a “salary history ban” that bars employers from asking job applicants about their salary history or using that information in setting compensation. Both laws align with nationwide trends, with states, cities, and counties all taking action.

California’s salary history ban comes on the heels of New York City’s similar law, which takes effect on October 31. We asked Ann Knuckles Mahoney, from Epstein Becker Green, to compare California’s new law to New York City’s salary history inquiry law:

“In California, employers will be required to provide, upon reasonable request, a pay scale to applicants for the position. While the New York City law certainly contemplates having discussions about salary expectations, this requirement to affirmatively provide a pay scale is certainly something different from the other salary history inquiry laws. Another key difference is that this California Salary History Law reaffirms part of the California Equal Pay Law which prohibits employers from justifying salary discrepancies based on prior salary histories alone. Additionally, the New York City law allows employers to ask applicants about their deferred compensation.”

(2) Third Circuit Rules Employees Must Be Compensated for Short Breaks

The Fair Labor Standards Act (FLSA) requires employers to pay workers for breaks of up to 20 minutes, the U.S. Court of Appeals for the Third Circuit rules. Employer Progressive Business Publications allowed sales representatives to log off of their computers and take breaks whenever they chose and for any length of time. But if the workers were logged off for more than a minute and a half, they were not paid for the time. The panel gave deference to the interpretation of compensable breaks by the Wage and Hour Division of the Department of Labor (DOL) and concluded that treating breaks longer than 90 seconds as unpaid “flexible time” flouted the spirit of the FLSA.

(3) Sixth Circuit Revives FLSA Suit Over Retailer’s "Draw" Pay System

A “draw” pay system for commission paid employees may be legal but not if terminated workers are required to repay advances. The Sixth Circuit will let a proposed class of sales employees move forward with their wage and hour suit against appliance retailer H.H. Gregg. The company advances sales employees a “draw” to cover any difference between their commissions and the minimum wage for their hours worked. The employees are required to repay the draw from their future commission earnings. The court found that this draw and commission system is permitted under the FLSA but allowed the workers to move forward with their claim that requiring the repayment of draws following termination violates the FLSA.

(4) Eleventh Circuit Says ERISA Time Limits Can Be Waived

The Eleventh Circuit says that a limitations period for bringing claims under the Employee Retirement Income Security Act (ERISA) can be waived by the employer. The question arose from a DOL action against TPP Holdings for breach of fiduciary duty. During settlement negotiations, TPP agreed to waive a timeliness argument in exchange for a delay in filing the action. After settlement discussions broke down, the DOL filed suit and TPP raised the timeliness defense anyway, arguing that ERISA did not allow the parties to waive the statute of limitations. The Eleventh Circuit disagreed, stating that “rights of all kinds—even constitutional ones—can be waived.”

(5) Tip of the Week

Keith Earley, Principal at Early Interventions LLC, shares his thoughts on avoiding diversity stagnation:

“There are five things that we can do. First, focus on the business case which is often articulated but not well executed. Second, the hiring process versus the retention process. If we focus more on the culture, on leadership commitment and accountability, then we have a better shot at reducing turnover and improving our hiring practices and strategies. Third, white men are diverse; excluding white men from the definition of ‘diversity’ sends a message that diversity is not about them. It is, but from a different vantage point. Fourth, strengthening accountability ..."

Watch the episode and subscribe for weekly notifications: EmploymentLawThisWeek.com. See less -

Embed
Copy

Other MultiMedia by Epstein Becker & Green

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Epstein Becker & Green | Attorney Advertising

Written by:

Epstein Becker & Green
Contact
more
less

Epstein Becker & Green on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.