California Court Rules Commissioned Employees Must Be Paid Separately for Rest Breaks

Last week the California Court of Appeal issued a decision holding that employers must separately compensate commissioned (“inside sales”) employees for legally required rest breaks.

Under California law most employees are entitled to a paid 10-minute rest break for every work period of four hours, or major fraction thereof.  California law also provides an overtime exemption for commissioned salespeople, but this “inside sales” exemption does not exempt those employees from minimum wage or meal and rest break requirements.  (So-called “outside” salespeople are not subject to minimum wage, overtime, or meal/rest break requirements.)

Stoneledge Furniture compensated its retail sales associates according to a standard commission agreement.  The agreement provided for sales associates to be compensated on a commission-only basis, but also guaranteed the associates a minimum income of $12.01 per hour.  The minimum income was paid to sales associates as a “draw” against future commissions.  If an associate earned commissions that met or exceeded the draw, the associate would be paid the commissions actually earned.  But if an associate’s earned commissions were less than the draw, the associate would receive the minimum draw.  The agreement did not provide separate compensation for any non-selling time, such as time spent for meetings, training, or rest breaks.

Two sales associates filed a class action against Stoneledge alleging the company failed to provide paid rest breaks.  The trial court certified a class but later granted summary judgment to Stoneledge, finding that by guaranteeing sales associates a minimum income of $12.01 per hour, Stoneledge ensured they would be paid for all hours worked, including rest breaks.

The Court of Appeal reversed, holding that Stoneledge violated California law by not separately compensating sales associates for rest breaks.  The court relied on the applicable wage order, which provides, “authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.”  The court reasoned that since the minimum pay guarantee was a draw against commissions, it was simply an advance subject to clawback, or deduction, from future commissions.  As a result, when a sales associate earned commissions that exceeded the draw, the only pay the associate received consisted of commissions, which did not account for rest breaks.  The court held that to comply with California law, commission-based compensation plans must provide for separate pay for legally required rest breaks.  In reaching its conclusion, the court relied on previous cases holding that piece-rate employees must be separately compensated for rest breaks, a requirement the state legislature later codified at California Labor Code section 226.2, which took effect in 2016.

Although this decision focused on rest breaks, its reasoning applies equally to other compensable yet “non-productive” time that is not accounted for and compensated under commission or piece-rate compensation plans.  Employers with California-based commissioned (inside) salespeople, or employees paid on a piece-rate basis, should review their compensation plans to ensure those employees are separately paid at least the minimum wage for rest breaks and other non-productive yet compensable time, and that this pay does not operate as a “draw” subject to deduction.  In other words, pay for all non-productive compensable time must be guaranteed and independent from compensation tied to sales commissions or piece-rate production.

Aaron Buckley
Paul, Plevin, Sullivan & Connaughton LLP
San Diego, CA

MA Superior Court Adopts “Relief from Duties” Test to Determine If Meal Breaks Are Compensable

As the last post illustrates, states are adopting disparate rules concerning meal and rest breaks, and so employers need to pay attention to the laws of the each relevant jurisdiction.  Massachusetts is no exception, as a recent case demonstrates.

In Devito v. Longwood Security Services, Inc., a Massachusetts Superior Court judge held that, under state law, employers must pay their employees for meal breaks unless the employees are relieved of all work-related duties during that time.  In so holding, the Court rejected the application of the federal “predominant test,” which provides that meal breaks need only be paid when the employee’s meal break time is spent predominantly for the benefit of the employer.  The decision holds that the standard Massachusetts employers must meet to avoid paying employees for meal breaks is much stricter than the federal standard.

The Court based its conclusion on the language of the Massachusetts Department of Labor Standards’ regulations, which the Court held to be a source of authority for determining whether certain hours worked should be counted for the purpose of a Wage Act claim.  Those regulations provide that “Working Time” does not include “meal times during which an employee is relieved of all work-related duties.”  Further, they state that all on-call time is compensable unless the employee is not required to be on work premises and is “effectively free to use his or her time for his or her own purposes.”  Taken together, the Court found that meal breaks are compensable hours worked under the Wage Act unless employees are relieved of all work-related duties during the meal breaks.

The Court rejected authorities that applied the “predominant test” used under the federal Fair Labor Standards Act.  It ruled that there was no reason to look to interpretations of the FLSA for guidance in interpreting the governing Massachusetts law and regulations because the law and regulations are unambiguous.

While this trial court decision is not binding on other courts, the decision demonstrates the risks that employers face when providing meal breaks to employees without relieving them of all duties.  Prudent Massachusetts employers should review their meal break policies and pay employees for any meal breaks during which employees are expected to be available for work-related matters.  Only if an employee is truly relieved of all work responsibilities during the meal break can a Massachusetts employer avoid paying employees for break time without risking a potential Wage Act claim.

Jonathan Keselenko, Foley Hoag LLP, Boston, MA

California Supreme Court: Employees Cannot Be Required to Remain On-Call During Rest Breaks

Last week the California Supreme Court issued a decision holding that employers cannot require employees to remain “on-call” during legally required rest breaks.  The ruling reversed a January 2015 appellate court decision.

California law has long required employers to provide most employees with a paid, uninterrupted 10-minute rest break for every work period of four hours or major fraction thereof, during which employees may not be required to work.  California also requires employers to provide most employees with unpaid, uninterrupted 30-minute meal periods for work periods exceeding five hours, during which employees must be relieved of all duty.

Three security guards filed putative class actions against their employer, ABM Security Services, Inc., claiming the rest breaks provided to them were rendered invalid by ABM’s requirement that they keep their radios and pagers on, remain vigilant, and respond to calls if necessary.  ABM argued that the mere requirement to stay “on-call” did not render the rest breaks invalid. The trial court agreed with the security guards and awarded $89.7 million in damages to a class of more than 14,000 security guards.  ABM appealed.

The Court of Appeal analyzed the issue by turning to Industrial Welfare Commission Wage Order 4, which governs the working conditions of ABM’s security guards.  Although Wage Order 4 requires employees to be “relieved of all duty” during meal periods, it contains no similar language as to rest periods.  The absence of any explicit language requiring employees to be relieved of all duty during rest periods led the Court of Appeal to conclude that no such requirement was intended.

A divided California Supreme Court disagreed, holding that a “rest period” means just that―a period of rest in which an employee must be relieved of all duties.  The court noted its interpretation is consistent with Labor Code section 226.7, which prohibits employers from requiring “any employee to work during any meal or rest period . . . .”   In other words, the court determined an employer’s responsibilities are the same for meal and rest periods:  to relieve employees of all work.  Therefore, the court held that state law requires employers to relieve employees of all work-related duties during a required rest break, including the duty to remain on-call.

The practical effect of the decision is that employees must be allowed to turn off radios and mobile phones during rest breaks because requiring an employee to leave them on would mean the employee is on-call and available for work.

Keep in mind the court did not hold that rest periods may never be interrupted; it simply said employees cannot be required to remain on-call or readily available for interruption.  If a rest break is interrupted or not provided, the employer must either provide a new, uninterrupted rest period within the required time frame, or pay the employee a penalty equal to one hour of pay at the employee’s regular rate.

The court did not disturb the longstanding rule that employees may be required to remain onsite or nearby during rest breaks.

Employers should immediately review their policies and practices to ensure they are not requiring California employees to remain on-call or in contact during rest breaks.  This means employees must be allowed to turn off radios, mobile phones and other communication devices.

Aaron Buckley – Paul, Plevin, Sullivan & Connaughton LLP – San Diego, CA

NEW FLSA REGULATIONS ENJOINED!

Late Tuesday afternoon, the United States District Court for the Eastern District of Texas granted a motion brought on behalf of 21 states and supported by business groups led by the United States Chamber of Commerce to preliminarily enjoin the new overtime exemption regulations set to go into effect on December 1, 2016. Those new regulations were announced in May by the United States Department of Labor (“DOL”) and, if they had gone into effect, would have increased the minimum salary threshold for most executive, administrative and professional employees from $455 per week (or $23,660 per year) to $913 per week (or $47,476 per year). The new rules would have jeopardized the exempt status of 4.6 million employees.

The Elements for Preliminary Relief Were Satisfied by the States

At the outset, the court had to determine if the states will “likely succeed on the merits” as the case is further litigated, and if a permanent injunction is on the horizon. The states’ case was premised on both constitutional and statutory grounds. The court concluded that while the states’ constitutional claims were unlikely to succeed, their statutory arguments appeared strong and likely to succeed.

The court noted that the Fair Labor Standards Act (“FLSA”) provides that “‘any employee employed in a bona fide executive, administrative, or professional capacity… as such terms are defined and delimited from time to time by regulations of the Secretary, shall be exempt from minimum wage and overtime requirements.” According to the court, the issue boiled down to what Congress meant by “executive, administrative and professional.” The court concluded that Congress’ focus when the FLSA was enacted was on what these employees actually do, i.e., what are their duties, which, the court concluded, “does not include a minimum salary level.” That is, while the law generally grants administrative agencies great deference as they interpret statutes, “nothing… indicates that Congress intended the Department to define and delimit a salary level.”

Consequently, the court held that the DOL exceeded its authority by imposing a salary level requirement in the tests for these white collar exemptions. Further, the court stated: “Congress did not intend salary to categorically exclude an employee with [exempt] duties from the exemption,” but such an outcome, the court stressed, would happen under the new regulations. Indeed, this outcome was expressly admitted to by the DOL in the preamble to the new regulations, i.e., that the significant salary level increase would, in and of itself, make otherwise exempt employees non-exempt.

The court also held that absent an injunction, the states would be irreparably harmed. That harm would not only include the cost of paying higher salaries, but it would also entail the cost spent on compliance and the redirection of resources from other critical services of the state governments.

Finally, the court found that the public interest would be best served by it issuing an injunction. On this point, the court noted that more time would be needed for it to make a final ruling on the case, and that by issuing an injunction, the only harm to the DOL would be a delay in the implementation of the new regulation. Thus, the court concluded that preserving the status quo while the case continues on the merits is appropriate.

The Injunction’s Scope Is National

In light of the above, the court determined that an injunction was appropriate. The remaining issue regarded its scope. The DOL argued that it should only apply to those states that participated in the case, and established the potential of irreparable harm. The states argued that the injunction should apply nationwide. After noting that injunctions are dictated by the nature of the violation at issue and not its geographical scope, the court agreed with the states and applied its injunction nationwide.

Consequently, the court granted the motion of the preliminary injunction and enjoined the DOL from implementing and enforcing the new salary level regulations on December 1, 2016.

What’s Next?

At this time, the new regulations are essentially on hold, subject to further litigation. The current regulations are not enjoined in the meantime. Those may later become an issue as the litigation proceeds, but for now, employers must continue to comply with the regulations currently in effect. Employers operating in states with their own laws and regulations must continue to comply with their states’ laws; nothing in Tuesday’s injunction affects state laws.

To be sure, many employers have already made or announced changes to conform to the regulations set to go into effect in just over one week. Those employers may consider cancelling those changes or retaining some of them. How to proceed will depend on the circumstances and each employer’s assessment of the likelihood that the injunction will become permanent. Another unknown factor is the stance the Trump Administration will take on this matter. The incoming administration could continue to fight for the new DOL regulations, or could simply let the injunction stand so that it can chart its own path in 2017. Time will tell.

ONE DOWN, ONE TO GO: COURTS WEIGH-IN ON ENJOINING DOL PERSUADER AND FLSA EXEMPTION RULES

Over the course of the last year, the U.S. Department of Labor promulgated two controversial regulations triggering court challenges. One rule – known as the “Persuader Rule” – was set to require employer consultants and lawyers to file disclosure reports of any union avoidance activities they engage in, even if that activity was purely advisory in nature and did not involve direct contact with employees.  The other rule regards the changes to the overtime exemption regulations, which are set to increase the salary threshold for exempt status from $455 per week to $913 per week, and then to automatically adjust that threshold every three years.

THE PERSUADER RULE

This past spring a Texas court issued a preliminary injunction on the eve of “persuader” rules’ effective date. If not enjoined, the new persuader rules would have substantially broadened the definition of “persuader” activity and required greater disclosure by law firms regarding their relationships with their clients.  Under the current rules, lawyers may give advice to employers regarding union avoidance issues and, so long as they don’t meet with employees directly, their work is not disclosable.  The new rules would have made the mere giving of advice reportable.  This week, the court made the preliminary injunction enjoining the implementation of the new rules permanent.  The only option for the DOL at this point is for it to appeal that ruling to the Court of Appeals.   Given the outcome of last week’s election, even if it does appeal the case, the conventional wisdom is that the Trump Administration will abandon the rule and the appeal.

THE STATUS OF THE OVERTIME REGULATIONS

The new FLSA exemption regulations are set to go into effect on December 1, 2016. A few months ago, two lawsuits were filed in another Texas federal court, one by 21 state attorneys general, and the other by a coalition of business groups spearheaded by the U.S. Chamber of Commerce (of which Dykema is a member and serves on its Labor and Employment Committee).  The claims in the cases are not identical, but they do overlap and basically contain two themes.

One theme is that the dramatic increase to the salary level jeopardizes the exempt status of 4.6 million workers, employees on November 30 considered to be exempt, but on December 1 would no longer be exempt despite their duties remaining the same. The magnitude of this change is unprecedented and is claimed to run afoul of the statute making these employees exempt based on their duties and not their salaries.

The second theme regards the triennial indexing of the salary level threshold. Both lawsuits assert that the DOL cannot create automatic adjustments to the regulations because the FLSA states that the DOL is only empowered to issue regulations on this matter “from time to time.”  The automatic indexing, the plaintiffs claim, serves to change the rules without the “notice and comments” required before administrative agencies may change a rule.

On Wednesday, November 16, 2016, the court heard arguments on the states’ motion for an injunction to stop the December 1 implementation of the new regulations. During the arguments, the court stressed that it would not base its decision on the prospects of the incoming Trump Administration’s disfavoring the new regulations.  Rather, the court said it would limit its review to the merits of the new regulations as they currently stand.  In that regard, though, the court’s exchanges with counsel from both sides revealed some skepticism on the court’s part, mostly pertaining to the unprecedented loss of exempt status by so many employees and whether the DOL has the right to preclude exempt status as to employees who clearly meet the duties tests for their exemptions.  That said, the DOL strongly argued that its right to set a salary level test has been unchallenged in the courts or by Congress for 70 years, and that defining the exemption as it has done was therefore well within its authority.

The court concluded the hearing by stating that it will issue its decision by November 22, 2016. The conventional wisdom is still that there is a high likelihood that the regulations will not be enjoined.  Further, if enjoined, the injunction may only apply to state (and local) governments.  More importantly, given the perceived skepticism of the court (which may be encouraging to employers), employers should not “take their foot of the pedal” towards complying with the new regulations, but instead, should continue to act with the assumption that the regulations will go into effect on December 1.

Should the court deny the injunction, though, on November 28th the court will hear arguments on the pending motion for summary judgment brought by the business groups.  The prospects of success by the business groups on that motion may be better assessed after reading the court’s decision on the injunction.

Dykema and other WHDI firms will continue to monitor these cases and related developments.

Second Circuit Provides Further Guidance on Compensability of Donning and Doffing Time

The FLSA requires that covered employees be compensated not only for time spent on the principal activities he or she is engaged to perform but also tasks that are an integral and indispensable part of those principal activities. In Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513 (2014), the U.S. Supreme Court explained that an activity is “integral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.”

Recently, the Second Circuit had an opportunity to apply Busk’s “integral and indispensable” standard in the context of a donning and doffing claim. In Perez v. City of New York, __ F.3d __, 2016 WL 4087216 (2d Cir. Aug. 2, 2016), Assistant Urban Park Rangers (AUPRs) employed by the City’s Department of Parks & Recreation claimed an entitlement to compensation for time spent donning and doffing uniforms and equipment. The district court granted summary judgment for the City, but the Second Circuit reversed, finding that a reasonable jury could conclude the AUPR’s donning and doffing activity was integral and indispensable to their principal law enforcement and public assistance activities.

As an initial matter, the Court of Appeals emphasized that the donning and doffing of uniforms was by all indications undertaken for the City’s benefit, as evidenced by the fact that the Parks Department (i) “prescribes the components of the uniform in painstaking detail, and AUPRs may be disciplined for non-compliance”; and (ii) “requires AUPRs to don and doff their uniforms at the workplace.” Moreover, the Second Circuit explained, “it is the professional Parks Department clothing, with its recognizable color scheme and insignias, that not only attract citizens in need of assistance but also establishes an AUPR’s authority to investigate violations, issue summonses, make arrests, and otherwise intervene in emergency situations.”

The Court next observed that the protective gear carried by the AUPRs appeared to be vital to the primary goal of their work in that “an AUPR’s utility belt holds items used to perform law enforcement duties” and so may be properly classified as tools of the trade: “A summons book is, of course, necessary for the issuance of summonses. A baton, mace, and handcuffs, in turn, may be critical in effecting an arrest. And a radio and flashlight may prove crucial in tracking suspects and coordinating with other municipal employees.” Therefore, the Court opined, “a reasonable factfinder could conclude that the donning and doffing of an AUPR’s utility belt are integral and indispensable tasks.” Likewise, the Circuit Court concluded that “the donning and doffing of an AUPR’s bulletproof vest may also qualify as integral and indispensable” since “it guards against ‘workplace dangers that transcend ordinary risks,'” in particular “[t]he risk of sustaining gunfire while enforcing municipal laws.”

Perez offers yet another illustration of the highly fact-intensive, job-specific nature of the “integral and indispensable” inquiry.

Lawrence Peikes
Wiggin and Dana LLP

Massachusetts Court Declines Invitation To Determine “Oppressive and Unreasonable” Wage Rate

Beyond setting a minimum wage rate for the Commonwealth, the Massachusetts Minimum Fair Wage Law (MFWL) also forbids payment of an “oppressive and unreasonable wage,” defined by statute as “a wage which is both less than the fair and reasonable value of the services rendered and less than sufficient to meet the minimum cost of living necessary for health.”

The plaintiff in Costello v. Whole Foods Market Group, Inc., 2016 WL 4186927 (D. Mass. Aug. 8, 2016) offered the novel argument that a wage rate higher than the established minimum wage may nonetheless be “oppressive and unreasonable,” only to be shot down by a federal district judge. Although technically a matter of first impression, the district court found “that from the very beginning, the MFWL has been interpreted to enforce the minimum wage standards that are statutorily or administratively set, but not to permit ad hoc, case by case inquiries into what might be ‘oppressive and unreasonable’ in varying circumstances. The fact that a wage is not below any established minimum is conclusive that the wage is also not ‘oppressive and unreasonable.'” The court therefore concluded that because the plaintiff’s wage rate always exceeded the statutory minimum, it “could never have violated the MFWL.”

The issue actually arose in the context of a claim for retaliatory discharge–the plaintiff alleged that he was fired for complaining about an “oppressive and unreasonable” wage rate. Rejecting the claim essentially for want of protected activity, the court reasoned that the plaintiff could not have reasonably believed the statute “authorizes the free-floating assessment he proposes. In other words, given the way the law has been administered, it would not have been reasonable for him to believe that his employer violated the minimum wage law by not giving him a raise from an already above-minimum wage to an even higher wage.”

While the result in Costello is hardly surprising, a contrary ruling would undoubtedly have had disastrous consequences, potentially leaving it to the judiciary to determine on a case-by-case basis whether a given wage was “oppressive and unreasonable” under the particular circumstances. Hopefully, this is the last we’ve seen of the novel argument rejected in Costello.

Lawrence Peikes
Wiggin and Dana LLP

Supreme Court of Connecticut Recognizes Fortune Claim

In Fortune v. National Cash Register Co., 373 Mass. 96, 364 N.E.2d 1251 (1977), the Supreme Judicial Court of Massachusetts held that an employer breaches the implied covenant of good faith and fair dealing by terminating an at-will sales employee in order to deprive him or her of the opportunity to earn commissions, such as in a situation where the employee is discharged on the brink of completing a commissionable sale. Nearly forty years later, the Supreme Court of Connecticut has followed suit, recognizing in Geysen v. Securitas Security Services USA, Inc., __ Conn. __, __ A.3d __, 2016 WL 4141090 (Aug. 9, 2016) “the availability of a breach of the covenant of good faith and fair dealing contract claim when the termination of an employee was done with the intent to avoid the payment of commissions.”

In arriving at this conclusion, the Court rejected the notion that in the at-will employment context a claim for breach of the covenant of good faith and fair dealing is coextensive with a claim for wrongful discharge, reasoning that “the former focuses on the fulfillment of the parties’ reasonable expectations rather than on a violation of public policy.” The Court noted that “although an employer may terminate the employee at will” and “an employer does not act in bad faith solely by refusing to pay commissions on sales invoiced after an employee’s termination if that obligation is an express contract term,” “the employer may not act in bad faith to prevent paying the employee commissions he reasonably expected to receive for services rendered under the contract.”

On a more positive note, the Court rejected the plaintiff’s claim under Connecticut’s wage payment statutes, reiterating that the wage laws leave the timing of accrual of earned compensation to the determination of the wage agreement between the employer and employee, and holding that a “contract provision providing that commissions will be paid only if the work had been invoiced prior to termination of the employee does not violate public policy and is enforceable.” The Court also affirmed dismissal of the plaintiff’s public policy-based wrongful discharge claim, ruling “that the parameters of the public policy of this state with regard to the payment of wages is reflected in the wage statutes and that an employee cannot use the nonpayment of wages that have not accrued as the basis for a wrongful discharge claim.”

All in all then, the Geysen decision is a mixed bag. However, by recognizing the equivalent of a Fortune claim the Court has undoubtedly opened the door to further litigation.

Lawrence Peikes
Wiggin and Dana LLP

Massachusetts Enacts Groundbreaking Wage Equity Law

On August 1, 2016, Massachusetts Governor Charlie Baker signed a new pay equity act (the “Act”) into law. The Act, which goes into effect on July 1, 2018, is designed to close the wage gap between men and women. Although Massachusetts already had a pay parity law that prohibits wage discrimination, the Act provides greater clarity on what constitutes unlawful pay discrimination and imposes new rules and restrictions on employers.

First, the Act clarifies what it means to discriminate against workers who perform “comparable work” to others. While the current statute prohibits pay discrimination where workers perform “comparable work,” it does not define that term. Under the Act, comparable work is defined to be work that requires “substantially similar skill, effort and responsibility and is performed under similar working conditions.” The Act, however, does not define “substantially similar,” so that term will still be subject to interpretation by either the Attorney General’s Office or courts.

Second, whereas seniority was the only stated basis for paying variable wages under the old law, the Act recognizes six justifications for pay disparities where workers perform comparable work. Variations in pay are permissible under the Act if based upon: (1) a seniority system, provided that job-protected leave does not reduce seniority; (2) a merit system; (3) a system measuring quality or quantity of production, sales or revenue; (4) geographic location of where the job is performed; (5) education, training, or experience to the extent these factors reasonably relate to the job at issue; and (6) travel, if travel is a regular and necessary condition of the job.

Third, Massachusetts becomes the first state in the country to constrict what employers may ask prospective employees about their wage history. Under the new law, employers may not seek the wage or salary history of a prospective employee from the prospective employee or a current or former employer or require that applicants meet certain salary criteria to be eligible for a job. This  provision, however, includes an important caveat: prospective employees may authorize a prospective employer to verify salary history, and prospective employers may confirm salary history  after an offer with compensation has been negotiated and made to a prospective employee.

Fourth, the Act makes it unlawful for employers to prohibit employees from discussing or disclosing information about their own wages, or the wages of other employees.

Fifth, the Act establishes an affirmative defense for employers who have audited their pay practices within the prior three years. Specifically, employers who voluntarily evaluate their pay practices and “demonstrate that reasonable progress has been made towards eliminating wage differentials based on gender for comparable work,” have an affirmative defense to pay discrimination claims, so long as the evaluations were reasonable in detail and scope. At the same time, the law prohibits courts from drawing an adverse inference against employers who have not done a voluntary audit.

Sixth, the Act enhances the enforcement scheme of the previous law. The statute of limitations has been extended from one year to three years. The new law also allows employees to go directly to court with their pay discrimination claims without first bringing a complaint to the Massachusetts Commission Against Discrimination or the Attorney General’s Office.

Pay equity has been a topic of significant interest of late both locally and nationally. Massachusetts Attorney General Maura Healey in particular has made pay equity a priority of her office and has been using her enforcement powers to audit employer pay practices to detect and address discrimination. Accordingly, employers should expect that the Attorney General’s scrutiny of discriminatory pay disparities will only increase when the Act goes into effect. Now more than ever, employers should take time to review and evaluate their compensation practices to identify and remedy discriminatory pay disparities, and to take advantage of the new affirmative defense discussed above. They should also review hiring practices to ensure that they are not making impermissible inquiries into the pay histories of prospective employees. They also should review employee handbooks and other policies to ensure that they do not inhibit employees from discussing their compensation, as such a prohibition not only violates the Act, but also federal labor law.

Jonathan Keselenko
Foley Hoag LLP
Boston, MA

 

DOL’s Companionship Services Rule Applies Retroactively Says District Court

In 2013, the DOL promulgated a rule that served to eliminate the overtime exemption for companionship service workers, including live-in domestic service providers, employed by home care agencies and other third-parties.  The new rule was to become effective on January 1, 2015.  In the meantime, a lobbying group representing the interests of home healthcare companies filed suit in the U.S. District Court for the District of Columbia challenging the rule.  The district court vacated the rule, finding it in conflict with the FLSA.  However, last August, the U.S. Court of Appeals for the D.C. Circuit reversed the district court’s vacatur, reasoning that the rule was grounded in a reasonable interpretation of the FLSA and neither arbitrary nor capricious.  Just last month, the U.S. Supreme Court denied the lobbying group’s petition for certiorari.

Against this backdrop, the U.S. District Court for the District of Connecticut was called upon to determine the effective date of the new rule.  As artfully framed by the district court, the case, Kinkead v. Humana, Inc., “raise[d] a basic but well-settled question about the intersection of law and time.”  In particular: “Are employers like the defendants in this case liable to pay overtime only from the date that the D.C. Circuit’s mandate issued in October 2015 to overturn the district court’s decision that vacated the rule?  Or are employers liable to pay overtime as of the agency’s initial effective date in January 2015?” Applying “the well-established rule that judicial decisions are presumptively retroactive in their effect and operation,” the court determined that the rule became effective in January 2015, as originally contemplated by the DOL.  The court reasoned that the defendants’ purported reliance on the district court’s decision was, in light of this presumption, unjustified.  As such, the plaintiffs’ overtime entitlement kicked in as of January 2015.

Lawrence Peikes, Wiggin and Dana LLP