Governor Brown Signs #MeToo Bill Package Favoring Employees in Harassment Litigation and Settlements, Expanding Anti-Harassment Training Requirements, and Protecting Employers From Defamation Claims
On September 30, 2018, Governor Brown acted on the last of over 1,200 bills that the Legislature passed this year, including a slate of #MeToo inspired laws. This e-Update surveys the most significant changes.
Although the Governor’s reaction to the #MeToo legislation was mixed, the laws taking effect on January 1, 2019 will significantly affect California employers.
Senate Bill 1300 is most impactful. It establishes that a single incident of harassment may satisfy the requirement that harassment be “severe or pervasive.” The law also directs trial courts that sex harassment cases should generally be resolved by a jury trial. Further, the law makes it harder for an employer that prevails in a discrimination or harassment suit to recover its attorneys’ fees. Finally, the law limits an employer’s use of confidentiality and non-disparagement agreements in harassment and discrimination settlements.
Governor Brown also signed Assembly Bill 2770, which aims to protect employees and employers from certain defamation claims. A.B. 2770 deems three specific communications privileged: (1) an employee’s credible report of sexual harassment to an employer; (2) communications between an employer and “interested persons” (like witnesses or victims) about sexual harassment claims; and (3) an employer’s statements to prospective employers that a decision to not rehire an individual is based on the employer’s finding that the individual engaged in sexual harassment. All communications must be made without malice to be privileged.
The Governor also signed Senate Bill 820, which prohibits any provision in a settlement agreement that would prevent the disclosure of facts related to sexual assault, harassment, or discrimination. The law excepts only provisions that shield the claimant’s identity or the settlement amount.
Another new bill is Senate Bill 1343, which expands employer training obligations. Currently, employers with 50 or more employees must provide anti-harassment training to supervisory employees within six months of hire and every two years. The new law extends the training requirement to employers with five or more employees. The law also requires that non-supervisory employees receive one hour of training, starting in January 2020.
Paul, Plevin will review these new laws at the firm’s annual Employment Law Update on November 2, 2018.
What This Means
These laws are certain to alter harassment litigation in California. The new ban on non-disclosure provisions in harassment cases is certain to make early settlement more precarious as it will no longer ensure a publicity-free resolution. The new laws will also impede the dismissal of sex harassment claims. Finally, employers must now expand their harassment prevention efforts by training both supervisory and nonsupervisory employees every two years.
Employers have until January 1, 2020 to provide the first mandated training, which must be repeated every two years thereafter. PPSC regularly offers customizable compliance trainings both on-site and at our offices. For more information, see our website.
We note that some of the bills vetoed by Governor Brown this year, such as the bill prohibiting mandatory arbitration of harassment claims, are likely to be presented again in 2019 before a new Governor and Legislature. Paul, Plevin will continue to track these legislative proposals and provide updates on developments that affect California employers.
This E-Update was co-authored by Desi Kalcheva and Mary Allain. For more information, please contact Ms. Kalcheva, Ms. Allain or any Paul, Plevin attorney by calling (619) 237-5200.
Michigan Legislature Adopts Minimum Wage Increases and Paid Sick Leave: Political Poker Is Alive and Well in Michigan
By Robert Boonin (firstname.lastname@example.org), James Hermon (email@example.com) and Andrea Frailey (firstname.lastname@example.org) of Dykema Gossett, PLLC
After various court battles, two ballot initiatives were set to be on the November ballot for voter consideration. If passed, one would have increased the state minimum wage and the other would have required employers to provide sick leave to employees. Under Michigan law, though, the Legislature is permitted the opportunity to foreclose the issues from appearing on the ballot by adopting those initiatives through legislation.
Even though the Republican majority of both houses appeared philosophically opposed to the initiatives, on September 5 both houses voted to adopt both of them. Ironically, even though the Democratic minority appeared anxious to have the initiatives on the ballot, most Democrats voted against their adoption by the Legislature.
Are you cross-eyed yet? What accounts for what most would consider ironic? It’s all a matter of sophisticated and high-stakes politics. By the Legislature taking ownership of both laws, the Legislature can more easily amend them during the coming lame-duck session, or even after a new Governor takes office. Voter initiatives require a three-fourths legislative majority to be amended, versus the simple majority required laws like these that are passed through the normal legislative process. Thus, though these actions are technically set to become law at this moment, they may be amended before their early 2019 effective dates.
In the meantime, Michigan has officially joined the ranks of states continually raising their minimum wages, and perhaps more significantly, the small minority of states which have enacted some sort of general paid leave requirement.
The Minimum Wage Increases, as Passed
The Improved Workforce Opportunity Wage Act (the “IWOA”) primarily does two things: a) it raises the state’s general minimum wage, and b) it eventually eliminates the lower minimum wage for employees who typically receive tips, a/k/a “tip credits.” The increases will be phased in over three years, as follows:
|General Minimum Wage||Tipped Employees’ Minimum Wage|
|Current||$ 9.25||$ 3.52|
|January 1, 2019||$10.00||$ 4.80|
|January 1, 2020||$10.65||$ 6.39|
|January 1, 2021||$11.35||$ 7.95|
|January 1, 2022||$12.00||$ 9.60|
|January 1, 2023||COLA Increase||90% of Gen’l. Minimum|
|January 1, 2024||COLA Increase||100% of Gen’l. Minimum|
Each year after 2022, the general minimum wage will be subject to an increase based on the percentage increase to the CPI provided the CPI has not increased over the prior year by more than 8.5 percent. This automatic indexing is a new feature to Michigan’s minimum wage law.
The Paid Sick Leave Law, as Passed
The Legislature also passed the Earned Sick Time Act (the “ESTA”). This law allows most Michigan employees to earn paid sick time. The ESTA requires employers with more than 10 employees to grant one hour of paid sick time for every 30 hours worked by each employee. For employers with less than 10 employees, the law requires their Michigan employees to earn one hour of paid sick time for every 40 hours of work. No employer with 10 or more employees, though, is required to permit employees to use more than 72 hours of paid sick leave a year, and smaller employers may cap their use to 32 hours per year.
Paid sick time earned under the law may be used by employees for time off needed: a) due to the employee’s or family member’s health condition or injury, including preventative care or diagnosis; b) due to the employee’s or family member’s treatment, services, relocation, or participation in criminal proceedings, relating to being a victim of domestic violence or sexual assault; or c) due to the temporary closure of a business or school due to a public health concern.
What the Legislation Means for Employers
These acts could have widespread impact on employers, but it is unlikely that they will go into effect as currently written. Since the Legislature adopted the initiatives instead of allowing a popular vote on them, there is more room for amendment; there already is serious talk in the Legislature about possible amendments. Amendments may adjust how the changes are phased in, address the new automatic minimum wage indexing provision, or even repeal either or both of the new laws. Until that happens, these provisions are Michigan law and employers with employees in Michigan should begin the process for complying with them in their current form. Waiting for possible amendments will be too speculative and, without planning now, adjusting pay scales, changing leave policies and union contracts, preparing to accrue paid sick time and budget for higher wages at the last minute may be impracticable.
California Supreme Court Holds Federal De Minimis Rule Not a Defense to Wage Claims Brought Under California Law
Yesterday, the California Supreme Court ruled that the de minimis rule found in the federal Fair Labor Standards Act (FLSA) does not apply to wage claims brought under California state law. The court thus rejected an attempt by Starbucks to invoke the rule as a defense to an employee’s claim that he was routinely required to work off-the-clock for a few minutes each day.
Background on the De Minimis Rule
Under the FLSA, employers are generally required to pay at least the federal minimum wage for all ‘‘hours worked.’’ California’s Industrial Welfare Commission (IWC) wage orders include similar requirements, which generally define ‘‘hours worked’’ more broadly as ‘‘the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.’’
But federal courts have long recognized an exception to the general rule requiring pay for all hours worked. Under the de minimis rule, employees generally cannot recover for otherwise compensable time if it amounts to only a few seconds or minutes of work beyond scheduled working hours. To determine whether work time is de minimis, courts consider: (1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work. Applying these standards, numerous courts have held that daily periods of up to 10 minutes are de minimis under federal law and thus not compensable.
Troester v. Starbucks Corporation
As a shift supervisor for Starbucks, Douglas Troester was responsible for performing certain tasks at the end of the business day after clocking out, including transmitting sales data to Starbucks headquarters and setting the store alarm. These closing activities generally totaled fewer than four minutes, and they nearly always took fewer than 10 minutes.
After his termination, Troester sued Starbucks for unpaid wages under California law. The federal district court granted Starbucks’s motion for summary judgment based on the de minimis rule. Troester appealed.
The Ninth Circuit Court of Appeals, finding no opinion by the California Supreme Court applying the de minimis rule to California wage claims, asked the California Supreme Court whether the rule applied under California state law. Yesterday the California Supreme Court found that it did not.
In its decision, the court noted that although the de minimis rule has been part of federal law for 70 years, neither the Labor Code nor the wage orders have been amended to recognize a de minimis exception. Only one published California Court of Appeal decision has applied the de minimis rule, and it found that the rule did not apply to the case before it. And although the California Division of Labor Standards Enforcement (DLSE) has for some time identified the de minimis rule as defense to claims for small amounts of unpaid time in its Enforcement Policies and Interpretations Manual and a handful of opinion letters, neither is binding, and the court found no intent to incorporate the rule into California law.
The court also noted practical considerations undermining the application of the de minimis rule in California wage actions. The rule was first adopted by federal courts decades ago when it was more difficult to track small amounts of time. With the technology available today, the court concluded that capturing all employee work time is considerably less difficult.
Although the court rejected the FLSA de minimis rule as a defense to state-law wage claims, the court did not decide whether a general de minimis principle may ever apply to wage and hour claims under state law. The court made it clear that no such principle applied in the case before it, because Starbucks was aware that Troester and other supervisors worked a few minutes off the clock every time they closed a store. But the court gave no examples of where a general de minimis principle might apply in future cases.
What This Means For Employers
Yesterday’s decision makes it clear that the FLSA de minimis rule is no defense to claims for small amounts of unpaid time under California law. Employers with nonexempt employees in California should enact and enforce policies and practices designed record every minute of every employee’s working time, and to pay employees for every minute worked.
Paul, Plevin, Sullivan & Connaughton LLP – San Diego, CA
Last week, Governor Brown signed into law Assembly Bill 2282, which was introduced in February 2018. The bill is another amendment to California’s Equal Pay Act, which has now been amended three times since January 1, 2016, when the Fair Pay Act expanded the law to apply to employees performing “substantially similar work” and limit the factors employers can rely on to justify pay disparities. The changes to the law take effect on January 1, 2019.
The new amendments are primarily intended to clarify the obligations imposed on employers by Assembly Bill 168, which took effect on January 1, 2018. AB 168 prohibited employers from asking job applicants for salary history information, and it also required employers to provide “applicants” with the “pay scale” for a position based on a “reasonable request.” Since AB 168 took effect, employers have struggled to interpret these requirements, including whether “applicants” included current employees, what information had to be included when providing the “pay scale,” and what constituted a “reasonable request.” AB 2282 addresses these questions by providing more details about employers’ obligations. Specifically, the new amendment provides:
- An “applicant” is an individual seeking employment, not a current employee.
- “Pay scale” is a salary or hourly wage range, and does not include bonuses or equity compensation.
- A “reasonable request” is a request made after an applicant has completed an initial interview with the employer.
The amendment also states what was previously understood: The ban on inquiring about an applicant’s pay history does not prohibit inquiries about an applicant’s “salary expectations.”
Finally, the new amendment drives home that employers cannot rely on prior salary – ever – to justify a pay disparity between employees performing substantially similar work. Existing law said employers could not rely on salary history information of an applicant as a factor to determine what salary to offer the applicant. Existing law also said employers could not use prior salary “by itself” to justify any disparity in compensation. The amendment removes the “by itself” limitation, and also adds a new sentence that says: “Prior salary shall not justify any disparity in compensation.” However, the amendment provides a slight exception for current employees, by providing: “Nothing in this section shall be interpreted to mean that an employer may not make a compensation decision based on a current employee’s existing salary, so long as any wage differential resulting from that compensation decision is justified” by the statutory factors of a seniority or merit system, a system that measures earnings by quantity or quality of production, or a “bona fide factor” other than gender, race or ethnicity, such as education, training or experience.
What This Means
This amendment provides employers with some additional clarity by better defining their obligations to provide pay scale information to applicants. The amendment also makes it clear that employers cannot rely on prior pay in initial salary setting, and cannot include prior pay even as one consideration in justifying a pay disparity between employees performing substantially similar work. Even though employers may make compensation decisions based on an existing employee’s current salary, employers still must be able justify any resulting wage differential based on factors enumerated in the statute. This means that employers must rely solely on these statutory factors, and never on prior pay, when explaining starting salaries or any pay differential between employees performing substantially similar work. Considerable uncertainty remains, however, over how narrowly courts will construe the statutory factors, especially a “bona fide factor other than gender, race or ethnicity,” which requires employers to prove an “overriding legitimate business purpose” and that the factor has been “applied reasonably.” It will take time for these questions to be answered by the courts.
This morning, the United States Supreme Court issued its long-awaited opinion in three consolidated cases pending before it (NLRB v. Murphy Oil Co.; Epic Systems Corp. v Lewis; Ernst & Young LLP v. Morris) on the issue of whether a class action waiver provision in an employment arbitration agreement violates the National Labor Relations Act (“NLRA”) and is, thereby, unenforceable. There previously was a split of authority among the federal circuit courts on this issue, with the Fifth Circuit (along with Second and Eighth Circuits) in Murphy Oil holding that class action waivers do not violate the NLRA, and the Seventh and Ninth Circuits (in Epic Systems and Ernst & Young, respectively) holding that such provisions do violate the NLRA. Writing for the Court in a 5-4 opinion, Justice Gorsuch resolved this split today, holding that class action waiver provisions in employment arbitration agreements do not violate an employee’s right under the NLRA to engage in collective, concerted activity for mutual aid and protection, and that these provisions remain enforceable under the Federal Arbitration Act (“FAA”). The Court’s more specific holdings are as follows:
Congress has instructed in the Arbitration Act that arbitration agreements providing for individualized proceedings must be enforced, and neither the Arbitration Act’s saving clause nor the NLRA suggests otherwise.
The Arbitration Act requires courts to enforce agreements to arbitrate, including the terms of arbitration the parties select. The Act’s saving clause—which allows courts to refuse to enforce arbitration agreements “upon such grounds as exist at law or in equity for the revocation of any contract”—recognizes only generally applicable contract defenses, such as fraud, duress, or unconscionability, not defenses targeting arbitration either by name or by more subtle methods. By challenging the agreements precisely because they require individualized arbitration instead of class or collective proceedings, the employees seek to interfere with one of these fundamental attributes.
“The employees also mistakenly claim that, even if the Arbitration Act normally requires enforcement of arbitration agreements like theirs, the NLRA overrides that guidance and renders their agreements unlawful yet. . . . The employees ask the Court to infer that class and collective actions are ‘concerted activities’ protected by §7 of the NLRA, which guarantees employees ‘the right to self-organization, to form, join, or assist labor organizations, to bargain collectively . . . , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.’ But §7 focuses on the right to organize unions and bargain collectively. It does not mention class or collective action procedures or even hint at a clear and manifest wish to displace the Arbitration Act. It is unlikely that Congress wished to confer a right to class or collective actions in §7, since those procedures were hardly known when the NLRA was adopted in 1935. Because the catchall term ‘other concerted activities for the purpose of . . . other mutual aid or protection” appears at the end of a detailed list of activities, it should be understood to protect the same kind of things, i.e., things employees do for themselves in the course of exercising their right to free association in the workplace.’ . . . In another contextual clue, the employees’ underlying causes of action arise not under the NLRA but under the Fair Labor Standards Act, which permits the sort of collective action the employees wish to pursue here. Yet they do not suggest that the FLSA displaces the Arbitration Act, presumably because the Court has held that an identical collective action scheme does not prohibit individualized arbitration proceedings, see Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 32.’”
Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, dissented. The majority characterized the dissenting arguments as policy arguments and reminded us all (thank you majority) that the role of courts is not to make policy, but to enforce the laws as written. “The policy may be debatable but the law is clear: Congress has instructed that arbitration agreements like those before us must be enforced as written. While Congress is of course always free to amend this judgment, we see nothing suggesting it did so in the NLRA—much less that it manifested a clear intention to displace the Arbitration Act. Because we can easily read Congress’s statutes to work in harmony, that is where our duty lies.”
The Supreme Court’s opinion reverses unfavorable precedent in the Ninth Circuit (Ernst & Young v. Morris) and Seventh Circuit (Epic Systems v. Lewis), and reaffirms the important principles that arbitration agreements will, and must, be enforced according to their terms, and that laws (or judicial decisions) that seek to interfere with arbitration are preempted by the Federal Arbitration Act. Class action waiver provisions in arbitration agreements are enforceable and do not violate the NLRA. This is a nice win for employers.
In a major decision with wide-ranging implications, the California Supreme Court handed down a decision on April 30, 2018, substantially restricting the ability of California businesses to lawfully use independent contractors in their core business operations. Dynamex Operations, Inc. v. Superior Court (Lee), Case No. S22732.
Under pressure from government tax and employment law enforcement agencies, as well as labor representatives, the Court announced a new independent contractor test. The decision is widely viewed as a potential blow to the gig economy, and a significant restriction on employer flexibility in determining the most cost-effective configurations between contractors and employees.
Facts and Analysis
Dynamex is a nationwide package and documents delivery service. In recent years it classified its drivers and delivery personnel as independent contractors. The Supreme Court, citing arguments that such classification denied workers various employment benefits and resulted in significant loss of tax revenue, held these contractors were improperly classified, and must be treated as employees. The determination of class-wide damages awaits.
Under prior law, the test for determining contractor status relied upon a number of factors, and thus allowed employers some flexibility in classifying certain workers as contractors, especially if they could demonstrate that one, but not all, of the definitions were met. No more. Now to establish an exemption the employer must prove that all factors point to independent contractor status under a new test. Here’s how it works:
First, the courts will presume that anyone whom the employer “suffers or permits” to work for them is presumed to be an employee. This definition presumes that “all workers who would ordinarily be viewed as working in the hiring business” are employees. (Emphasis is the Court’s.) The only examples of exclusions given by the Court would be workers – like plumbers or electricians – who the Court called “genuine independent contractors” – who do not perform services that are part of the employer’s scope of operations or line(s) of business.
Second, the Court adopted what in other states has been called the “ABC” test. Under this test, a worker is properly considered an independent contractor only if the employer establishes all of the following:
A. The worker is free from control and direction of the hirer in connection with the performance of the work, both under the contract and in fact; and
B. The worker performs tasks that are outside the usual course of the hiring party’s business; and
C. The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring business. This normally means the worker will have established and promotes his or her own business; is licensed; does advertising; has other clients or potential customers; and the like.
What This Means
Although this test is new, the Court ruled that its decision was merely explaining existing law, which means it can and will be applied retroactively. In light of this, all California employers are well-advised to conduct a prompt audit of their use of contractors in light of the new standards. The expectation and intention of the decision is that large numbers of current contractors may not qualify for that status under the new test.
It remains to be seen how this ruling will affect joint employer or subcontractor relationships, in which a true contractor entity (such as a staffing company) is engaged but whose employees are subject to detailed direction by the retaining company. It is clear, however, that this ruling is intended to expand the populations of persons for whom tax deduction, statutory employee benefits, leave and discrimination benefits, and the like, are available, and that hiring companies could be exposed to statutory liability to the subcontractor’s employee, since it “suffered or permitted” them to work on its premises. It is not clear whether the rules on indemnification and reimbursement of expenses will be interpreted in the same fashion as the new rules on classification and taxation, but caution suggests these practices, and subcontractor indemnities, be examined as well.
By Jason E. Reisman, Blank Rome LLP
Spoiler alert! Today, the U.S. District Court for the Eastern District of Pennsylvania handed Uber what the Court described as Uber’s first win on its independent contractor classification for one class of its drivers: “This case is the first to grant summary judgment on the question of whether drivers for UberBLACK are employees or independent contractors with the meaning of the Fair Labor Standards Act ….” The case is Razak et al. v. Uber Technologies, Inc. et al. (Civil Action No. 16-573; 4/11/18).
Wow. Pretty significant progress for the gig economy’s foundational feature – the engagement of workers classified as “independent contractors.” I dare say that, with this decision, the gig economy may have just gotten a little more employer-friendly – at least here in Eastern Pennsylvania and at least as to Uber.
The Court pulled out one of those highly exciting, multi-factor, legal balancing tests to evaluate Uber’s classification of the drivers as independent contractors. As you undoubtedly expect, such tests involve weighing each factor against the others, where no one factor is dispositive, and also examining all of the circumstances as a whole. In essence, as the Court noted, the test examines the situation “as a matter of economic reality.” The 6 factors the Court evaluated come from a 1985 decision by the U.S. Court of Appeals for the Third Circuit, Donovan v. DialAmerica Marketing, Inc.:
(1) The degree of the alleged employer’s right to control the manner in which the work is to be performed;
(2) The alleged employee’s opportunity for profit or loss depending upon his managerial skill;
(3) The alleged employee’s investment in equipment or materials required for his task, or his employment of helpers;
(4) Whether the service rendered requires a special skill;
(5) The degree of permanence of the working relationship; and
(6) Whether the service rendered is an integral part of the alleged employer’s business.
Using the above test, the Court found the 4 of the 6 factors weighed in favor of “independent contractor” status, with the other 2 only being somewhat supportive of employee status. Importantly, the Court noted that it was the plaintiffs’ burden to prove that they indeed were “employees” – and they failed to do that.
Stay tuned as this decision filters out – it will be interesting to see how and whether it impacts pending misclassification cases across the country against Uber, as well as other gig economy stalwarts, and likely even non-gig businesses. Though truly a fact-specific analysis, employment defense lawyers around the country are surely going to find creative ways to use this Uber decision to buttress arguments for their clients.
You (likely) heard it here first!
The Ninth Circuit Rules That Employers Cannot Rely On Prior Pay To Justify A Pay Differential Between Men And Women
On Monday, the Ninth Circuit issued an en banc opinion in Rizo v. Yovino, holding that an employer may not rely on prior pay as a defense to a gender pay equity claim under the federal Equal Pay Act (“EPA”). This is a significant decision as it reverses Ninth Circuit law established over 35 years ago and creates a split between federal circuits on this issue, which opens the door to review by the United States Supreme Court. The practical impact of the decision is immediate: Employers defending gender pay equity claims cannot rely on prior pay as even part of the justification for a pay differential between men and women.
Aileen Rizo was hired by the Fresno County Office of Education in 2009. The County set Rizo’s starting salary based on its policy of placing new employees within the County’s salary schedule at a step corresponding to their prior salary plus 5%. Rizo filed an equal pay claim in 2012 after learning she was earning less than male colleagues performing the same work. The County sought summary judgment on the ground that prior salary fell under the EPA’s “any factor other than sex” defense and as such, was a permissible basis for setting compensation under the EPA. The County’s summary judgment motion was denied, and the County obtained permission to file an immediate appeal. On appeal, a three-judge panel of the Ninth Circuit reversed the trial court’s denial of summary judgment, concluding that under a 1982 Ninth Circuit decision, Kouba v. Allstate Insurance Co., prior salary constitutes a “factor other than sex” under the EPA, as long as the employer’s consideration of prior salary was reasonable and effectuated some business policy.
The Ninth Circuit then granted Rizo’s petition to rehear the appeal en banc. On rehearing, an 11 judge en banc panel of the Ninth Circuit reversed course, overturned Kouba v. Allstate, and held that prior salary is not a “factor other than sex,” and therefore cannot be used to justify a pay differential between the sexes, independently or as one of several factors.
The Court’s en banc opinion was authored by Stephen Reinhardt, known as “the liberal lion of the Ninth Circuit,” who passed away on March 29, 2018 at the age of 87. In the majority opinion, Judge Reinhardt concluded “unhesitatingly, that ‘any other factor other than sex’ is limited to legitimate, job-related factors such as a prospective employee’s experience, educational background, ability, or prior job performance.” He observed that since the 1963 EPA was intended to eliminate long-existing, endemic sex-based pay disparities, it was “inconceivable” that Congress would create an exception for basing new hires’ salaries on those very disparities. Accordingly, the Court held: “Prior salary, whether considered alone or with other factors, is not job related and thus does not fall within an exception to the [Equal Pay] Act that allows employers to pay disparate wages.”
In response to an argument made in a concurring opinion, the Court noted that its decision expressed a general rule, and did not resolve its application under all circumstances. The Court specifically stated that it was not deciding whether or under what circumstances past salary might play a role in the course of an individualized salary negotiation, and expressly reserved questions relating to individualized negotiations to future cases.
What This Means
This is a significant development for all California employers. First, the case was decided under the EPA, which applies to employers nationwide. However, California’s Fair Pay Act, which took effect on January 1, 2016, was designed to be substantially tougher than the EPA. To accomplish this, the California legislature expanded coverage to employees performing “substantially similar work” instead of “equal work,” and also narrowed the “catch-all defense.” In contrast to the “any factor other than sex” language under the EPA, the defense under California law is limited to “a bona fide factor other than sex.” Under California’s formulation of this defense, an employer must prove the “factor other than sex” is job-related, consistent with business necessity, and not based on or derived from a sex-based factor. Given these more stringent requirements, it is not hard to see how a California court would adopt the Ninth Circuit’s reasoning and conclude that prior pay cannot constitute a “bona fide factor other than sex.”
Second, the Ninth Circuit did not just prohibit the use of prior pay as the sole justification for a challenged pay disparity. (California law already prohibits an employer’s reliance solely on prior pay.) The Court went one step further and held that prior pay, “whether considered alone or with other factors” could not be used to justify a pay differential. This could mean that an employer who uses prior salary along with valid job-related factors such as education, past performance, experience and training, could lose an equal pay claim because it failed to justify the entire pay disparity based on legitimate factors. In this regard, the Ninth Circuit’s interpretation of the EPA is more restrictive than other circuit courts that have addressed this issue.
Use of prior pay as a factor in setting compensation is already under attack. California is one of several states that prohibit an employer from even inquiring about an applicant’s prior pay. With the Ninth Circuit’s decision in Rizo and California’s nascent Fair Pay Act, employers are well-advised to avoid using prior pay in setting compensation, and to review the pay of existing employees whose starting pay was set based on prior pay, preferably as part of a broader, privileged audit of pay practices.
By Abad Lopez, Dykema (email@example.com)
On April 2, 2018, the United States Supreme Court in Encino Motor Cars, LLC v. Navarro, Justice Thomas writing for the majority, held that car dealership “service advisors” are “salesm[e]n… primarily engaged in… servicing automobiles” and therefore are exempt from the FLSA’s overtime requirements under 29 U.S.C. § 213(b)(10)(A). Significantly, in addition to issuing a ruling that is favorable to auto dealerships, the Court also provided useful language to all employers based on its view of how FLSA overtime exemptions should be construed.
In its ruling, the Court held that the service advisors’ activity of selling services makes them salesmen in the “ordinary meaning” of the term. Even though they don’t directly service automobiles, the Court pointed to the broad range of tasks they perform and that they “are integral to the servicing process.” Although “service advisors do not spend most of their time physically repairing automobiles,” the Court noted that the same is true of partsmen. The inclusion of partsmen in the statute means that “the phrase ‘primarily engaged in… servicing automobiles’ must include some individuals who do not physically repair automobiles themselves but who are integrally involved in the servicing process.”
Relying on longstanding precedent, the Ninth Circuit Court of Appeals denied the auto dealership’s exemption for its auto service advisors under Section 213(b), stating that exemptions should be “construed narrowly.” The Supreme Court rejected this canon of construction, noting that nothing in the FLSA mandates this narrow construction and thus there is “no reason to give [the exemptions] anything other than a fair interpretation.” The Court also noted that “the FLSA has over two dozen exemptions in § 213(b) alone… Those exemptions are as much a part of the FLSA’s purpose as the overtime pay requirements.” The Court also rejected the notion that the “remedial purpose” of the FLSA was paramount to its other provisions or that it should be pursued at all costs. Rather, the FLSA’s exemptions should be construed plainly, and without favor to grant or deny any such exemption.
The Supreme Court’s pronouncement lies in stark contrast to judicial opinions from lower courts premised on the “narrow construction” of the FLSA’s exemptions while expanding the statute’s remedial purposes to its outer limits. This narrow interpretation often resulted in an unpredictable and unfair bent against employers. In Encino Motor Cars, LLC, the Supreme Court puts to rest once and for all the argument that the FLSA’s exemptions should be construed narrowly. Even further, the Court’s decision may be used to reign in the canons of construing statutes liberally or using legislative history to achieve a preordained result, versus simply relying on a fair reading of the statutory text.
The best reading of the FLSA is a fair reading, not a liberal construction in favor of employees, particularly where the sole justification for such liberal construction is based on amorphous canons or legislative history. With this case, the Supreme Court has dispensed with an oft-cited but critically flawed canon for construing the FLSA’s exemptions under § 213(b) narrowly to favor employees. In doing so, employers have been provided with a strong rebuttal to litigants seeking to apply the FLSA broadly, where the statutory text would not otherwise allow.
By Jonathan Keselenko, Foley Hoag LLP, Boston, MA
The Massachusetts Attorney General Maura Healey (the “AG”) recently released her long-awaited guidance regarding the 2016 overhaul of the Massachusetts Equal Pay Act (the “Act”), which takes effect on July 1, 2018. The Act, which, among other things, prohibits employers from paying employees of different genders differently for comparable work, has left employers with many questions as to how its provisions would be interpreted and enforced. While the AG’s guidance does not provide the concrete interpretation of the Act many employers were hoping for, it does give employers greater clarity on many of the Act’s more ambiguous provisions. In particular, the guidance shows that the AG will interpret the terms of the Act broadly and highlights the important role employer self-evaluations of pay practices will play in defending against claims under the Act.
While the Act provides that employees who have a “primary place of work” in Massachusetts are subject to the Act, it was unclear at the time of the Act’s passage how that statutory term would apply to employees with non-traditional working arrangements, such as employees who travel extensively, telecommute, or work in multiple locations. The guidance provides further explanation as to how the AG will apply the law in these scenarios, offering an expansive view of what it means to have a “primary place of work” in Massachusetts.
According to the AG, an employee who travels for work has a “primary place of work” in Massachusetts if he or she returns regularly to a Massachusetts “base of operations” before resuming his or her business travel. Similarly, a telecommuting employee whose work arrangements are made through a Massachusetts work site will be covered by the Act, even if the employee is not physically present in Massachusetts while telecommuting. The guidance also explains that an employee will be covered if he or she spends a plurality of his or her time in the Commonwealth; Massachusetts does not need to be the place where the employee does a majority of his or her work for the Act to apply. Finally, the AG will deem employees who permanently relocate to Massachusetts to have a primary place of work in Massachusetts on their first day of actual work in Massachusetts.
The concept of “comparable work” is the centerpiece of the Act, but the statute’s definition of the term as work that requires “substantially similar skill, effort, and responsibility” is far from precise. Accordingly, the AG’s guidance endeavors to provide more clarity as to what “comparable work” means.
According to the AG, “substantially similar” means “alike to a great or significant extent,” but does not mean “identical or alike in all respects.” As such, “[m]inor differences in skill, effort, or responsibility will not prevent two jobs from being considered comparable.”
“Skill,” the AG explains, includes the “experience, training, education, and ability required to perform the job.” For example, the AG opines that janitors and food service staff in a school setting may require comparable skills, even if the jobs are substantively different, because neither job requires prior experience or specialized training. Moreover, skill is measured only by skills that are necessary to the job, not the skills an individual employee happens to have.
“Effort” means the amount of physical and mental exertion required to perform the job. Thus, according to the AG, a job that requires standing all day and an office job where workers spend their day seated do not require substantially similar effort, but two jobs involving substantively different work, such as janitorial and food service jobs, may be comparable because they often require the same amount of physical exertion. Effort also looks to job factors that cause mental fatigue or stress.
“Responsibility,” the AG provides, is to be measured by the degree of discretion or accountability in a job, and includes factors such as how much supervision the employee receives or gives others and how much the employee is involved in decision-making. For example, a job that requires an employee to sign legal or financial documents may not be comparable to a job that merely requires employees to draft such documents without being personally accountable for errors contained in them.
When comparing working conditions, the AG advises that the physical surroundings to be considered include the elements regularly encountered by a worker while performing a job, such as extreme temperatures and noise, and the intensity or frequency of those elements. The AG also advises that an employer should consider the frequency with which workers come across workplace hazards such as chemicals, fumes, electricity, heights, dangerous equipment and other factors, and the severity of injuries that these hazards could cause. Importantly, the guidance affirms that shift differentials are permissible under the Act where they are based on meaningful differences between the days and times of scheduled shifts.
Permissible Variations in Pay
The AG’s guidance clarifies the six permissible bases for pay differentials that are set forth in the Act. According to the AG:
- A “system that rewards seniority with the employer” must recognize and compensate employees based on length of service with the employer.
- A “merit system” must provide for variations in pay based on legitimate, job-related criteria.
- A “system that measures earnings by quantity or quality of production, sales, or revenue” is a system that provides for variations in pay based upon the quantity or quality of the employee’s individual production (e.g. piecemeal pay or hours worked) or sales and other revenue generation (e.g., commissions) in a uniform, reasonably objective fashion.
- The geographic location of the job may constitute a valid reason for variation in pay if the cost of living or the relevant labor markets differ from one location to another.
- Employee travel will justify a pay differential if it is a regular and necessary condition for the job. Variations in pay based on travel are not permitted where there are alternatives to that travel, the travel is part of an employee’s regular commute, or the travel is based on the employee’s preference to travel.
- Education, training, and experience will justify variations in pay if they are reasonably related to the job in question and, at the time the employee’s wages were determined, a reasonable employer could have concluded the skills would be valuable in the particular job.
Further, the AG clarifies that a “system” is a “plan, policy or practice that is predetermined or predefined; used by managers or others to make compensation decisions; and uniformly applied in good faith without regarding to gender.” In other words, ad hoc explanations for pay differentials will not pass muster under the Act.
Importantly, the AG plainly states that changes within a labor market or other market forces will not justify unlawful pay differentials. Nor will the fact that the employer lacked the intent to discriminate based on sex be a defense to a claim that the Act has been violated.
Prohibition on Seeking Pay History
The AG’s guidance confirms that the Act’s prohibition on seeking the pay history of prospective employees will be broadly interpreted. Employers cannot avoid the prohibition by obtaining pay history information from an agent, such as a recruiter or staffing company, nor can they request that prospective employees “volunteer” information about their pay history. Moreover, multistate employers who search for employees nationally cannot ask about applicant pay history if there is a possibility that the individual will be chosen or assigned to work in Massachusetts.
However, the AG guidance indicates that certain compensation-related inquiries are still permissible. First, an employer may still ask a prospective employee about their salary requirements or expectations without violating the Act. Second, an employer may ask about the prior volume or quantity of previous sales by a prospective employee in a sales field, as long as the inquiry does not touch upon the individual’s earnings from the sales. Third, an employer may consult public sources to learn about an employee’s pay history.
Affirmative Defenses for Employers
Finally, the AG’s guidance provides some explanation of the affirmative defenses to liability available to employers. Under the Act, an employer has a complete defense to liability if it can show that it undertook a “good-faith self-evaluation of its pay practices” that was “reasonable in detail and scope” within the previous three years and before an action is filed and that it has made “reasonable progress” towards “eliminating unlawful pay disparities.” If the self-evaluation is not “reasonable in detail and scope” but meets all other requirements, the employer has a partial defense that allows it to escape liability for liquidated damages. Although still somewhat amorphous, the AG elaborates on the key statutory language:
- Good faith: To be in “good faith,” the self-evaluation must be conducted in a genuine attempt to identify unlawful pay disparities. A self-evaluation conducted to achieve pre-determined results or justify disparities is not a good faith self-evaluation.
- Reasonable in detail and scope: Whether an evaluation is reasonable in detail and scope will depend on the size and complexity of the employer’s workforce, looking at factors such as (1) whether the evaluation includes a reasonable number of jobs and employees; (2) whether the evaluation takes into account relevant information; and (3) whether the evaluation is reasonably sophisticated in its analysis of comparable jobs, employee compensation, and the permissible reasons for pay disparities set forth in the Act. The guidance also provides useful templates and checklists to guide employers in conducting reasonable self-evaluations, including a Pay Calculation Tool employers may use to detect pay disparities within comparable job classifications. These documents make clear that some level of statistical analysis is necessary for a self-evaluation to be reasonable in the eyes of the AG.
- Reasonable progress: Reasonable progress, for the purposes of the affirmative defense, means that the employer has taken meaningful steps toward eliminating unlawful pay disparities. Such a determination will depend on (1) how much time has passed since the evaluation; (2) the degree of progress made compared to the scope of the problems identified, and (3) the size and resources of the employer.
- Eliminating unlawful pay disparities: The AG interprets this phrase to mean adjusting employee’s pay so that employees performing comparable work are paid equally, but eliminating unlawful pay disparities does not require employers to pay employees retroactively for historical disparities.
Importantly, the guidance states that a self-evaluation must address the employee or job at issue in order for the employees to make use of the affirmative defense to a claim under the Act or the Massachusetts anti-discrimination statute.
While some provisions of the Act remain vague, the AG’s guidance answers many of the questions employers have had since the passage of the Act, and gives employers a preview of how the AG will enforce it. Attorney General Maura Healey has made pay equity one of her top priorities, so employers should expect robust enforcement efforts beginning on July 1, 2018. In the meantime, employers should take advantage of the time before the Act goes into effect to review their compensation and handbook policies to make sure they are compliant with the Act. Moreover, employers will want to consult with their counsel to determine whether conducting a self-evaluation makes sense for their organization and, if so, to begin taking steps to design and conduct a self-evaluation that can potentially shield them from liability under the Act.