I pass along Reuter
Legal’s list of top five wage cases of 2017 (with my brief comments).
Number 1: Overtime
Rule Struck Down:
A federal judge struck
down an Obama administration rule that would have made more than 4 million
workers eligible for mandatory overtime pay. (The
biggest losers in this group are employees who have quasi-management
responsibilities— shift supervisors, store managers, etc.— who often work more
than 40 hours a week. Now they will lose overtime pay, and be scheduled over 40
hours per week with no extra pay.)
Number 2: New
Legal Test for “Contract Employees.” Lots of firms lease employees, or take
on work performed by the main employer as contractors. Example: In this case, a drywall contractor “subbed” the job to a different firm that
performed drywall installation. In these situations, the sub-contractor
sometimes fails to pay overtime or minimum wages. A federal court (Fourth
Circuit) set forth a new test to determine if the employees of the contractor
company is, in effect, an employee of the primary organization. The panel of
judges said a fundamental question is whether the companies jointly decide the
terms and conditions of employment. That shared control can be direct or
indirect, formal or informal, the panel said. (This is
a win for employees, but will be challenged before the Supreme Court. Many
other industries are affected: cable TV and internet installers, home nurses, delivery
drivers and couriers, and a growing number of professional work groups, e.g., “contract”
lawyers and doctors and other health professionals.)
Number 3: Salary
History Case (Involving Gender Discrimination): Employers sometimes ask
applicants or new hires for their salary history. (This
is one reason that pay for women consistently lags about 20% behind pay for men
in identical jobs.) Initially, the 9th Circuit Court of
Appeals found no bias when employers ask for salary history. But later in 2017,
it said it will reconsider this ruling. (Federal courts
have split on this issue. Perhaps in 2018, the Supreme Court will decide the
matter.)
Number 4:
Franchise Employees Get Paid: A federal court in California approved a $3.75
million deal between McDonald’s and about 800 employees of a California franchisee
who said the company was jointly liable for wage-and-hour violations. (The key here is that company is paying for violations
committed by franchise owners. These are not company-owned restaurants. The
ruling was based on a potent state wage-and-hour law, not a federal law, so
this outcome is beyond the reach of the Trump administration.)
Number 5: Uber Drivers
Allowed to Sue as a Group (Class Certification): Uber wanted to force
drivers into arbitration, where their wage claims would be handled individually. A
federal court rejected Uber’s case for arbitration. (Now
the matter will proceed in open court, where a class of Uber drivers will get a
better chance of winning or negotiating a settlement.)