Fifth Circuit Reverses Course, Concludes That “Day Rate” Pay Method Fails to Satisfy FLSA’s “Salary Basis” Test for Overtime Exemptions

Upon further reflection, a panel of the U.S. Court of Appeals for the Fifth Circuit has determined that paying an employee a set amount for each day that he works (i.e. on a “day rate” basis) does not satisfy the “salary basis” component required to qualify as overtime-exempt under the Fair Labor Standards Act (FLSA), even if by working a single hour in a given week, the employee will earn at least the weekly minimum salary (currently, $684.00) required to satisfy the exemption. Hewitt v. Helix Energy Solutions Group, Inc., 2020 U.S. App. LEXIS 12554 (5th Cir. Apr. 20, 2020).

In so holding, the Court of Appeals reversed the position another panel initially took in an opinion last year but subsequently withdrew, deciding the case on other grounds. Faludi v. U.S. Shale Solutions, L.L.C., 936 F.3d 215 (5th Cir. 2019), op. withdrawn, 950 F.3d 269 (5th Cir. 2020). The Fifth Circuit has now aligned itself with the Sixth Circuit in concluding that a day-rate payment scheme fails to meet the FLSA’s salary-basis test. See Hughes v. Gulf Interstate Field Servs., Inc., 878 F.3d 183, 189 (6th Cir. 2017). The Fifth Circuit includes the federal courts in Texas, Mississippi, and Louisiana, while the Sixth Circuit includes the federal courts in Michigan, Ohio, Kentucky, and Tennessee.

In Hewitt, the plaintiff worked on an offshore oil rig for periods of about a month at a time, known as “hitches.” The company paid the plaintiff a set amount for each day that he worked, and he received bi-weekly paychecks. Despite earning over $200,000 during each of the two years he was employed, and admittedly being paid at least $455.00 for each week in which he worked (the minimum salary required for exempt status during the time of his employment), the plaintiff filed suit, claiming he was entitled to overtime for each week he worked in excess of 40 hours. In response, the company asserted that he was exempt from overtime, under either the “executive” exemption or as a “highly compensated employee.” The district court agreed that the plaintiff was exempt on either basis, and granted summary judgment to the employer. The plaintiff appealed and the Fifth Circuit reversed.

Both the “white collar” (executive, administrative, and professional) exemptions and the highly compensated employee exemption involve a “duties test” and a “salary test.” The salary test includes two components: (1) the employer must pay the employee a minimum per-week rate, and (2) the employer must pay the employee on a “salary basis.” At issue on appeal was whether the employer demonstrated that the “salary basis” component was met. The pertinent U.S. Department of Labor (DOL) regulation provides:

An employee will be considered to be paid on a ‘salary basis’ within the meaning of this part if the employee regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of the employee’s compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.

29 C.F.R. § 541.602(a).

“Broadly speaking, then,” the Court of Appeals stated, “Section 541.602(a) requires that an employee receive for each pay period a ‘predetermined amount’ calculated on a ‘weekly, or less frequent’ pay period.” In other words, concluded the Court, the “employee [must] know the amount of his compensation for each weekly (or less frequent) pay period during which he works, before he works.” (emphasis added).

In this case, because the plaintiff was paid a day rate only for the actual days he worked in a given week, he could only determine what his pay would be after he completed the pay period. Thus, he did not receive a “predetermined amount” for each bi-weekly pay period. Accordingly, held the Court of Appeals, he was not paid on a “salary basis” under DOL regulations. The Court added that this conclusion was supported by the language of Section 541.602(a)(1) of the regulations, which states that “an exempt employee must receive the full salary for any week in which the employee performs any work without regard to the number of days or hours worked” (emphasis added) and that paying an employee only for the days he works, as was the case with the plaintiff, “cannot be squared with this provision.”

Notably, one issue that did not play a significant role in this case was the potential applicability of Section 541.604(b) of the regulations. That section provides in part:

An exempt employee’s earnings may be computed on an hourly, a daily or a shift basis, without losing the exemption or violating the salary basis requirement, if the employment arrangement also includes a guarantee of at least the minimum weekly required amount paid on a salary basis regardless of the number of hours, days or shifts worked, and a reasonable relationship exists between the guaranteed amount and the amount actually earned. The reasonable relationship test will be met if the weekly guarantee is roughly equivalent to the employee’s usual earnings at the assigned hourly, daily or shift rate for the employee’s normal scheduled workweek. Thus, for example, an exempt employee guaranteed compensation of at least $725 for any week in which the employee performs any work, and who normally works four or five shifts each week, may be paid $210 per shift without violating the $684-per-week salary basis requirement.

In this case, the employer did not argue that the plaintiff was guaranteed a minimum weekly amount that reasonably approximated what he usually earned. On the contrary, the employer conceded that this provision was inapplicable to the facts at hand. Moreover, as the Court already had held, the plaintiff was not paid “on a salary basis.” Nevertheless, as the regulations note, such circumstances may allow an employer to implement a salary-based pay system with a daily-rate component, without abrogating an employee’s exempt status.

If you have any questions about this decision, exemptions under the FLSA, or any other wage and hour issue, please contact the Jackson Lewis attorney(s) with whom you regularly work.

DOL Issues New Opinion Letters Revolving Around the FLSA’s “Regular Rate”

Continuing the practice it reinstituted about two years ago, on March 26, 2020 the U.S. Department of Labor’s Wage Hour Division (WHD) issued three new opinion letters, each revolving around the “regular rate” that is used when calculating any overtime pay due to non-exempt employees for work performed in excess of 40 hours in a workweek. A brief summary of those Opinion Letters is as follows:

Opinion Letter FLSA2020-3: Should an Alabama City’s End-of-Year Bonus Be Included in the Regular Rate Calculation?

In Opinion Letter FLSA2020-3, the DOL addressed whether an Alabama city’s longevity bonus, payed to city employees as mandated by the city’s board of commissioners, must be included in the regular rate calculation. The city had been paying the bonus to qualifying employees every two weeks, but was contemplating compiling the bonus to pay out in a single lump sum each year around Christmas time, and was seeking advice on whether such a payment would need to be included in the regular rate calculation.

Concluding that the bonus was to be included in the regular rate calculation, the DOL noted that the pertinent resolution of the board of commissioners directed that the bonus “shall” be paid. This mandatory language rendered the payment non-discretionary and therefore, as the FLSA regulations clearly set forth, required that it be included in the regular rate calculation. Although the city had discretion as to the form and the timing of the bonus, it did not have the authority to forego the bonus altogether. However, the DOL noted that such bonuses would be subject to exclusion from the regular rate, for “bonuses paid at Christmas or on other special occasions,” if the board of commissioners’ resolution stated that city officials “may” pay such a bonus, thereby rendering the bonus discretionary.

A copy of the FLSA2020-3 may be found here: Opinion Letter FLSA2020-3

Opinion Letter FLSA2020-4: Was the Employer’s New Hire Referral Bonus Excludable from the Regular Rate Calculation?

In Opinion Letter FLSA2020-4, the DOL examined a company’s new hire referral bonus program. Eligible employees (i.e. those whose regular job duties did not involve the recruitment and hiring of new employees) would receive a referral bonus in two installments, the first upon hire of the recommended candidate and the second if both the new hire and the referring employee were still employed a year later. Typically, under the regulations a referral bonus will not be included in the regular rate calculation if (1) participation in the referral process is voluntary; (2) the employee’s efforts in recruiting do not involve a significant amount of time; and (3) recruitment activities are limited to solicitation among friends, relatives, etc. during the employee’s off hours as part of his or her social affairs.

In the instant case, the first installment of the employer’s referral bonus payment at issue met these requirements and therefore was excludable from the regular rate. The second installment, however, prompted more scrutiny. Given that a condition of the second half of the bonus payment was that the referring employee still be employed a year later, the DOL concluded that this portion of the bonus was more akin to a longevity bonus. Longevity bonuses may still be excludable from the regular rate calculation, as long as they are not dependent upon an employee’s “hours worked, production or efficiency” or do not create a contractual right to enforcement by the employee. Here, there was no indication that the first set of circumstances existed, but it was unclear whether or not the second half of the bonus payment was contractually enforceable. Thus, the DOL could not provide a definitive answer as to whether the second installment of the bonus payment was excludable from the regular rate calculation. The Agency did note, however, that if the second installment of the bonus was paid regardless of whether the referring employee remained employed, or if it was paid shortly after the first installment, it would no longer be characterized as a longevity bonus and therefore would be excludable from the regular rate calculation as well.

A copy of FLSA2020-4 may be found here: Opinion Letter FLSA2020-4

Opinion Letter FLSA2020-5: Is “Imputed Income” From an Employer’s Insurance Benefit Included in the Regular Rate Calculation?

Opinion Letter FLSA2020-5 concerned an employer’s contributions to group term life insurance premiums. Because the IRS requires payments for employer premiums of an employee’s life insurance coverage exceeding $50,000 to be included in the employee’s taxable gross income, the employer questioned whether this also required the amount of those premiums to be included in the regular rate calculation. They do not, responded the DOL, as they are excludable under Section 207(e)(4) of the FLSA regulations as “contributions irrevocably made by an employer pursuant to a bona fide benefit plan.” IRS regulations are not co-extensive with FLSA regulations, noted the DOL, and payments that are taxable as income are not necessarily payments that should be included as part of the regular rate calculation.

A copy of FLSA2020-5 may be found here: Opinion Letter FLSA2020-5

If you have any questions about the regular rate calculation under the FLSA, or any other wage and hour questions, please contact the Jackson Lewis attorney(s) with whom you regularly work.

Limousine Service Employee Was Properly Classified as Exempt, Second Circuit Holds

Upholding a jury verdict in favor of the defendant “black car” (limousine service) company, the U.S. Court of Appeals for the Second Circuit concluded that the plaintiff-employee was properly classified as overtime-exempt under both the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL). Suarez v. Big Apple Car, Inc., 2020 U.S. App. LEXIS 8683 (2d Cir. Mar. 17, 2020). The Second Circuit has jurisdiction over the federal courts in New York, Connecticut, and Vermont.

The plaintiff worked as the driver recruiter, director of driver services, and dispatch manager for Big Apple Car, a limousine service providing corporate transportation. In these roles, the plaintiff recruited over 100 drivers and had unfettered control over the company’s recruitment program. She also played a major role in training the company’s drivers and, according to the company’s president, had hiring, firing, and supervisory authority over them as well. In addition, the plaintiff served as the company’s primary contact with the Taxi and Limousine Commission, and was primarily responsible for ensuring that the company remained complaint with applicable regulations. Following her discharge, the plaintiff filed suit, claiming that she was owed overtime wages pursuant to the FLSA and NYLL. A jury sided with the employer and, after the trial court denied her post-trial motions, the plaintiff appealed.

Under both the FLSA and NYLL, employees who serve in a “bona fide executive administrative, or professional capacity” are exempt from the overtime requirements of these laws, provided that they satisfy certain minimum salary levels and meet the duties requirements of one or more of these categories. With respect to the “administrative” exemption under both laws, an employee’s primary duty must be the “performance of office or non-manual work directly related to the management or general business operations of the employer of the employer’s customers” and that primary duty must include the “exercise of discretion and independent judgment with respect to matter of significance.” 29 C.F.R. § 541.200(a). The NYLL further requires that the employee “regularly and directly assist an employer, or an employee employed in a bona fide executive or administrative capacity” or “perform, under only general supervision, work along specialized or technical lines requiring special training, experience or knowledge.” 12 N.Y.C.R.R. § 142-2.14(c)(4)(ii)(c). As with all exemptions, the employer has the burden of proving that an exemption applies.

In this case, the Second Circuit agreed that the employer had sufficiently demonstrated that the administrative exemption was satisfied, in light of the job duties acknowledged by both the plaintiff and the company, particularly given plaintiff’s responsibility for ensuring compliance with the Taxi and Limousine Commission regulations and her authority to hire, fire, and discipline drivers.

If you have any questions about overtime exemptions under federal or state law, or about any other wage and hour issue, please contact the Jackson Lewis attorney(s) with whom you regularly work.

Colorado’s COMPS Order 36 Goes Into Effect, With Some Modifications and Compliance Grace Periods

On March 16, 2020, the Colorado Overtime & Minimum Pay Standards (COMPS) Order 36 went into effect, bringing sweeping changes to Colorado’s wage and hour laws.  COMPS Order 36 represents a dramatic shift from previous Colorado wage orders, significantly increasing the coverage of the rules, placing greater limitations on exemptions from the overtime requirements, expanding the definition of time worked, and imposing other requirements and potential liability on employers. For a comprehensive look at COMPS Order 36, please see our previous article here. On the March 16, 2020 effective date, the Colorado Department of Labor and Employment Division of Labor Standards and Statistics (“Division”) adopted three temporary changes to the Order, as well as a one-month compliance grace period.

Three Modifications to the Order

First, the Division added, in new Rule 2.2.7G, an exemption from the 12-hour daily overtime requirement for direct care/direct support “companions” who are Medicaid-funded and who work shifts of 24 hours or longer, in conformance with a federal appellate ruling issued last month. Additionally, the Division added, in Rule 5.2.1B, a related technical clarification to the definition and scope of Medicaid-funded providers, to whom additional rest period flexibility applies.

Second, and of particular note to all employers, the Division lessened employer obligations as to what information must be included in earnings statements issued every pay period. Under modified Rules 7.2 and 7.3, earning statements must include the (1) employee’s and employer’s names; (2) total hours worked in the pay period; (3) employee’s regular rates of pay, gross wages earned, withholdings made, and net amounts paid; and (4) any credits or tips claimed during the pay period.

Lastly, in modified Rule 1.6, the Division clarified that, for now, the “joint employment” standard remains the same as it has existed under Colorado wage and hour law, notwithstanding the recent adoption by the U.S. Department of Labor of a narrower joint-employment standard under federal wage law. In other words, COMPS Order 36 now provides for a broader standard for joint employment than the standard set forth in the new federal regulation. The Division currently is considering potential permanent changes to the state’s joint employment rules.

One-Month Compliance Grace Period

In light of the unprecedented impact of the COVID-19 crisis, the Division has delayed enforcement of the following requirements until April 16, 2020:

  1. Employers have one month to comply with all documentation and notices required by COMPS Order 36, such as new posters, handbook inserts, acknowledgement forms, etc.
  2. While the Division must investigate any claims filed with it, the Division’s “Direct Investigations” team launches its own investigations, based on tips, leads, and known problem sectors. Direct Investigations will not launch new investigations based on violations of new COMPS Order 36 rules for the first month.
  3. To the extent a violation committed within the first month of COMPS Order 36 is solely the result of a new obligation established under the Order, the Division will deem the violation “non-willful” if the employer remedies it within the first month of the Order’s effective date.

Lastly, the Division has postponed mailing any new claim notices to employers until April 1, 2020, for all wage claims, not just those related to COMPS Order 36, so as to enable employers to catch up with mail receipt and avoid missing the 14-day statutory deadline required to avoid untimely payment penalties.

If you have questions about the requirements of COMPS Order 36 or any other wage and hour question, please contact the Jackson Lewis attorney(s) with whom you regularly work.

Settlement or Dismissal of Individual Claims Does Not Preclude Assertion of PAGA Claims, California Supreme Court Holds

Noting the legal and conceptual differences between, as well as the penalties available in, a claim under the state’s Private Attorneys General Act (PAGA) and an employee’s individual suit for damages and statutory penalties, the California Supreme Court recently held that an employee may bring a PAGA claim even if the employee has settled or dismissed his or her individual claims.  Kim v. Reins International California, Inc., 2020 Cal. LEXIS 1593 (Cal. Mar. 12, 2020).

A full discussion of the decision may be found in the Jackson Lewis California Workplace Law blog, here.


New Jersey Independent Contractor Bill Based on “ABC” Test Has Failed – For Now

On January 14, 2020, the latest session of the New Jersey legislature ended and, with it, so did Senate Bill (SB) 4204. The bill, which in many respects mirrored California’s recently-enacted Assembly Bill (AB) 5, sought to codify the “ABC test” as the proper method for determining whether an individual should be classified as an independent contractor or as an employee for purposes of wage claims and unemployment compensation under state law. However, by ending its session without a vote on the bill, the legislature effectively pushed any further consideration of it to the next session.

Under SB 4204, for an individual to be properly classified as an independent contractor, a company must demonstrate all of the following:

(A) The individual has been and will continue to be free from control or direction over the performance of his service, both under his contract of service and in fact;

(B) The service is outside the usual course of the company’s business for which such service is performed; and

(C) The individual is customarily engaged in an independently established trade, occupation, profession, or business.

Significant opposition, in large part by those contractors whom the proposed law purportedly was designed to protect, resulted in the New Jersey legislature pausing to further consider the utility of the bill. Nevertheless, its concept very well may have enough support for a similar bill to gain momentum in the new legislative session. Notably, the senator introducing the bill already has indicated that the measure will be considered again.

Jackson Lewis will continue to monitor this and any related bill for further developments. In the meantime, if you have any questions about the bill or any other wage and hour issue, please contact a Jackson Lewis attorney.

Minnesota Supreme Court Holds Minneapolis Minimum Wage Ordinance to Be Lawful

The Minnesota Supreme Court, the state’s highest appellate court, has upheld a minimum wage ordinance enacted by the City of Minneapolis in 2017, providing for a higher minimum wage than that provided by state law. Graco, Inc. v. City of Minneapolis, 2020 Minn. App. LEXIS 12 (Minn. Jan. 20, 2020).

In June 2017, the Minneapolis City Council enacted that Municipal Minimum Wage Ordinance, providing for higher minimum wage rates for hours worked by employees within the City’s geographic boundaries. As of January 1, 2020, the minimum wage for “large” employers under the Ordinance (those with more than 100 employees) is $12.25 per hour, while the minimum wage for “small” employers (those with 100 or fewer employees) is $11.00 per hour. By contrast, under the Minnesota Fair Labor Standards Act (MFLSA), the current minimum wage for large employers (those with an annual gross volume of sales or business of $500,000 or more) is $10.00 per hour, while the minimum wage for small employers (less than $500,000 in business) is $8.15.

In November 2017, Graco and others sued the City, asserting that the Ordinance is preempted by state law and should be enjoined. The state district court denied the injunction and ultimately ruled that the Ordinance neither conflicts with, nor is preempted by, the MFLSA. The plaintiffs appealed and the Minnesota Court of Appeals affirmed the lower court’s decision. A detailed discussion of the appellate court decision may be found here: Minnesota Appeals Court Upholds Minneapolis Minimum Wage Ordinance.

The plaintiffs then appealed to the Minnesota Supreme Court, which likewise upheld the Minneapolis Minimum Wage Ordinance. First, because the specific language of the MFLSA requires only that employers pay “at least” the minimum wage established by the state statute, the statute clearly contemplates that a higher hourly rate is permissible, noted the Supreme Court. Thus, as the Ordinance mandates such a higher minimum, added the Court, it “does not forbid what the MFLSA permits but instead complements the statute” and therefore is not expressly preempted by the statute. As the Court concluded:

[T]he statute prohibits employers from paying wages less than the statutory minimum-wage rate; it does not set a cap on the hourly rate that employers can pay. If employers comply with the ordinance, which requires minimum-wage rates above the state minimum-wage rates, employers comply with the MFLSA. And if employers can comply with both the municipal regulation and the state statute, the provisions are not irreconcilable, and therefore no conflict exists.

The Supreme Court then addressed, and rejected, the plaintiff’s contention that that the MFLSA impliedly preempts the Ordinance by entirely occupying the field of minimum wage regulation in Minnesota. To determine if express preemption exists, Minnesota courts consider four issues:

(1) What is the “subject matter” . . . to be regulated?

(2) Has the subject matter been so fully covered by state law as to have become solely a matter of state concern?

(3) Has the legislature in partially regulating the subject matter indicated that it is a matter solely of state concern?

(4) Is the subject matter itself of such a nature that local regulation would have unreasonably adverse effects upon the general populace of the state?

As to the first three issues, the Supreme Court reiterated the fact that the MFLSA only sets a “minimum” wage of “at least” an established hourly amount, not a required or maximum hourly rate. Moreover, while state law permits the labor commissioner to adopt rules to protect minimum wage and overtime rates, it does not invest exclusive authority in that office. As to the fourth issue, the Court rejected the plaintiff’s contention that a “patchwork” of local minimum wage ordinances would unduly burden employers, noting that it “previously [had] held that while varied local regulation may be restrictive to businesses, it does not arise to the level of an unreasonably adverse effect on the state.” Moreover, the Court added, if the legislature concludes that such a burden is too onerous on employers, “the problem can be corrected by a clear expression of the legislative will” (i.e. by enacting a local wage preemption law).

Therefore, the Minneapolis Minimum Wage Ordinance and its higher minimum wage rates are now part of settled law, and affected employers need to ensure that they comply with these higher rates.

If you have any question about the Ordinance or any other wage and hour issues, please contact the Jackson Lewis attorney(s) with whom you regularly work.

New York Governor Vetoes “Wage Theft” Lien Bill, Promises Replacement

Concluding that it too broadly defined “employer” and raised a myriad of due process concerns that subjected it to risks of unconstitutionality, on December 31, 2019, Governor Andrew Cuomo vetoed a bill that would have allowed a current or former employee (or the New York State Department of Labor), alleging “wage theft” by an employer, to place a lien on the employer’s interest in real or personal property for the value of the wage claim plus liquidated damages. “Wage theft” is defined to include such claims as minimum wage violations, failing to pay overtime, and not paying tipped workers the difference between their tips and the legal minimum wage. The bill was passed by the New York legislature last summer and was discussed in detail in a Jackson Lewis article here: New York Legislature Passes Bill Allowing Liens on Employers For Alleged Wage Claims.

Although the veto comes as a relief to employers operating in New York, the reprieve may be brief.  In his memorandum vetoing the bill, Governor Cuomo made it clear that he intends to propose replacement legislation in 2020 to allow victims of wage theft to use “any and all assets, even personal assets, of the bad actor” to satisfy a judgment.  The Governor noted that his administration has been very aggressive when it comes to providing wage theft protections for vulnerable employees but was concerned that the due process issues inherent in the current bill might lead a court to find it unconstitutional.

Jackson Lewis will continue to monitor the situation for any further developments. In the meantime, if you have any questions about this or any other wage and hour issue, please contact the Jackson Lewis attorney(s) with whom you regularly work.

Full Eleventh Circuit Finds that Plaintiffs Lack Standing in Alabama Lawsuit Challenging State Prohibition of Local Minimum Wage Laws

In a closely-split decision by the full court of appeals, the Eleventh Circuit has held that the plaintiffs lacked standing to pursue their claims against the named defendants in the lawsuit, specifically, the Attorney General for the State of Alabama. As a result, the Court of Appeals had no authority to determine whether the plaintiffs’ equal protection claim might survive on its merits. Lewis v. Governor of Alabama, 2019 U.S. App. LEXIS 36857 (11th Cir. Dec. 13, 2019) (en banc).

At its core, the case involved the validity of a 2015 Alabama law prohibiting cities or other local municipalities from adopting their own laws concerning minimum wages, leave benefits, collective bargaining and other employment-related issues. The law was enacted in response to an ordinance passed by the Birmingham City Council to increase the minimum wage for all employees within the City’s boundaries, from the current federal minimum of $7.25 to $10.10. While local jurisdictions in a number of states have enacted their own minimum wage ordinances in recent years, about half of the states have passed laws prohibiting such ordinances.

The lawsuit originally was filed in 2016 by the NAACP and two Birmingham residents against the Alabama Attorney General, the Governor of Alabama and the Mayor of Birmingham, alleging a variety of Constitutional violations and a violation of the Voting Rights Act, based on allegations that the state law’s passage was rooted in the state legislature’s racial bias against Birmingham’s black-majority city council and citizens. The case was dismissed by a federal district judge in 2017 but was revived in July 2018 by a three-judge panel of the Eleventh Circuit, concluding that the facts as alleged were sufficient to maintain the plaintiffs’ race discrimination claims.

The full Court of Appeals subsequently agreed to hear the appeal and the panel decision was vacated. By a 7-5 vote, the majority held that although the plaintiffs, two African-American workers who were employed in Birmingham, clearly could demonstrate an actual or imminent injury (significant economic harm), they could not demonstrate that these injuries were “fairly traceable” to the attorney general’s conduct or that, even if they prevailed, they would receive the remedy they sought. On the contrary, the majority found such an assertion to be highly speculative, particularly given that in the four years since the municipal ordinance was passed, a new mayor and a majority of the city council were elected, with no subsequent suggestion that the new leadership intended to revive the ordinance even if given the opportunity. Moreover, employers within the city limits, facing a nearly 40% increase in the minimum wage, as well as employers statewide who understandably would be concerned about the creation of a hodgepodge of municipal minimum wage rates, almost certainly would immediately challenge the ordinance as unlawful.

Thus this challenge, to Alabama law prohibiting local wage ordinances and other employment laws, is over and does not appear likely to be rekindled. Jackson Lewis will keep you apprised should any further developments occur. In the meantime, if you have any questions regarding this or any other wage and hour issue, please contact the Jackson Lewis attorney(s) with whom you regularly work.

The California Supreme Court to Decide Dynamex Retroactivity

The California Supreme Court announced that it would decide whether its April 30, 2018 landmark Dynamex decision is retroactive. The Supreme Court’s determination will have a significant impact on companies utilizing independent contractors in California.

In Dynamex Operations West, Inc. v. Superior Court of Los Angeles County, the California Supreme Court adopted the “ABC Test” to for evaluating contractor classifications under California law. On June 20, 2018, the California Supreme Court denied a petition for rehearing to address retroactivity.

Please find the rest of this article on our California Workplace Law Blog here.