Miami Minimum Wage Ordinance Remains Invalid after Review Denied by Florida Supreme Court

A 2016 Miami ordinance, intended to increase the City’s minimum wage to more than $13.00 an hour by 2021, remains invalid after the state’s highest court denied review of a lower appellate court decision.

In 2003, the Florida legislature enacted a statute establishing the federal minimum wage as the minimum wage for the state of Florida and prohibiting local governments from passing ordinances that would seek to raise the minimum wage above the federal rate. The following year, Florida voters passed an initiative to amend the Florida Constitution to establish a statewide minimum wage higher than the federal minimum. Based on its interpretation of the amendment, the City of Miami believed that it now had the authority to establish a higher minimum wage than was provided under state law and, in 2016, enacted such an ordinance.

Representatives of a business federation brought suit, however, alleging that the local ordinance violated the 2003 state preemption statute. The Miami-Dade County Circuit Court agreed and declared that the Miami ordinance was unenforceable. The City appealed but the Third District Court of Appeals affirmed the lower court’s decision, holding that the constitutional amendment merely allowed the state to change the state minimum wage and said nothing about preempting the preexisting statutory prohibition on local municipalities enacting a different minimum wage. Absent such explicit language, the appellate court concluded, it was not going to assume that the purpose of the amendment was to supersede the earlier statutory prohibition on local minimum wage ordinances.

The City then sought review by the Florida Supreme Court and last year, in a 4-3 vote, the state’s high court agreed to do so, setting oral arguments for next month. In the interim, however, several justices retired under a state mandatory age law and Florida’s newly-elected governor appointed new justices. On February 5th, the Florida Supreme Court dismissed the petition for review on a 5-2 vote, with all of the new justices joining in the dismissal. Thus, Florida remains one of nearly twenty states that have enacted laws prohibiting municipalities or other local jurisdictions from implementing their own minimum wage rates.

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

New Jersey Becomes Latest State to Enact a $15 Minimum Wage Law

With its governor’s signature yesterday, New Jersey became the latest – and the third largest – state to pass a $15.00 per hour minimum wage bill.  The only states with larger populations than New Jersey passing such $15 minimum wage bills are California and New York, which enacted similar laws in 2016 and 2017, respectively.

Under the New Jersey law, the state’s current minimum wage of $8.85 per hour will rise to $10.00 per hour on July 1, 2019; to $11.00 per hour on January 1, 2020; and an additional $1.00 per hour on January 1st of each successive year until reaching $15.00 per hour in 2024. Each year thereafter, based on state constitutional provisions, the minimum wage may increase further depending on the national Consumer Price Index. The New Jersey law does carve out a handful of exceptions, such as for seasonal employers and small employers (those with 5 or fewer employees), but most of those exceptions merely extend by a few years the schedule for implementing the $15 per hour minimum.

At the federal level, meanwhile, a bill to gradually increase the federal minimum wage to $15.00 per hour was introduced by Democratic leaders in the House of Representatives in early January. The current federal minimum wage has been $7.25 for nearly a decade. Backed by House Speaker Nancy Pelosi, Senate Minority Leader Charles Schumer, and Senator Bernie Sanders, among others, the bill has 181 co-sponsors in the House and 31 co-sponsors in the Senate.

Contrary to the minimum wage stagnancy at the federal level, the arrival of 2019 saw even more states and municipalities implementing higher minimum wage rates, including increases in Arkansas, Massachusetts and Missouri, and an upcoming increase in Michigan. In addition, through the first month of 2019, bills to raise the minimum wage to $15.00 an hour have been introduced in Virginia, Hawaii, New Mexico, and Maryland. The Virginia bill subsequently was defeated by a narrow, two-vote margin in the state senate.

Jackson Lewis will continue to monitor these and other wage and hour issues. If you have any questions, please contact the Jackson Lewis attorney(s) with whom you regularly work.

Eleventh Circuit to Undertake Full-Court Review of Challenge to Alabama Law Prohibiting Local Minimum Wage Laws

The Eleventh Circuit Court of Appeals has agreed to undertake a full-court review to decide 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, Alabama is one of nearly twenty states that have passed laws prohibiting such ordinances.

The lawsuit originally was filed by the NAACP and two Birmingham residents in 2016 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 state had argued successfully before the district court that because the law applied statewide, and not just in Birmingham, the fact that it would have affected more black employees in that city was an insufficient basis for the plaintiffs to maintain their disparate impact discrimination claims. Rejecting that argument, the Eleventh Circuit panel held that such “cherry-picked” statistics disregarded the specific allegations in the case, namely, that the law was aimed precisely at Birmingham and not the state as a whole.

Whether a majority of the full court will agree with the district court, the panel decision, or something in between, remains to be seen. If the law is upheld, the state likely will continue to prohibit cities and municipalities from adopting local laws providing higher minimum wages than permitted under state law.  Jackson Lewis will continue to monitor developments in this case.  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.

Teamsters Challenges Federal Agency Decision on California Break Rules on Interstate Truck Drivers

The International Brotherhood of Teamsters, Local 2785 has filed a petition for review to the Ninth Circuit Court of Appeals on the Federal Motor Carrier Safety Administration’s (FMCSA) determination that California’s meal and rest break rules are preempted as applied to drivers of commercial motor vehicles (CMVs) subject to the FMCSA’s hours-of-service (HOS) regulations. This primarily involves interstate truck drivers and some intrastate drivers who meet certain criteria under the HOS regulations who drive CMVs. The Teamsters are seeking to reverse the Agency’s administrative determination.

Please find the full article on our California Workplace Law Blog here.

New Overtime Rule Soon to Make Its Appearance

The DOL’s new overtime rule, intended to replace the rule announced late in the Obama administration but subsequently declared invalid by a federal court, finally has made, or soon will make its way, to the Office of Information and Regulatory Affairs (OIRA), a division of the Office of Management and Budget (OMB), Bloomberg Law has reported. OIRA is responsible for reviewing significant regulations before publication to ensure agency compliance with the principles in Executive Order 12866, which include incorporating public comment, considering alternatives to the rulemaking, and analyzing both costs and benefits. OIRA can take up to 90 days to review a regulation, which can be extended, and there is no minimum period of review required. Last fall, the DOL’s Wage and Hour Division announced that a new notice of proposed rulemaking is scheduled to be released by March 2019. How, if at all, the continuing government shutdown will affect this schedule is unknown.

In May 2016, the DOL issued its long-awaited overtime rule and, in doing so, more than doubled the required salary for the “white collar” exemptions (those individuals employed in an executive, administrative, or professional capacity) from $23,660 to $47,476. That rule also raised the required salary level for the “highly compensated” exemption, from $100,000 to $134,004, and established rules for automatic increases to those levels every three years. The rule was set to take effect on December 1, 2016 but days before it was to become effective, a federal district court in Texas enjoined the rule nationwide and subsequently held that the rule was invalid. The DOL initially appealed these decisions but eventually withdrew its appeals, asserting early in the Trump administration that it intended instead to issue a revised rule. Based on previous comments from Secretary of Labor Alexander Acosta, the new proposed minimum salary level for the white collar exemptions is expected to be in the low $30,000 range – significantly lower than the minimum salary set forth in the now-defunct Obama-era rule.

Jackson Lewis will continue to monitor developments concerning the new overtime rule and will provide updates when available. In the meantime, if you have any questions about the forthcoming rule or any other wage and hour question, please contact the Jackson Lewis attorney(s) with whom you regularly

California Piece-Rate Law Upheld by Court of Appeal

Rejecting an argument that the use of the phrase “other nonproductive time” rendered the statute unconstitutionally vague, a California Court of Appeal recently upheld the state’s law regarding compensation of piece-rate workers. Nisei Farmers League v. California Labor & Workforce Dev. Agency, 2019 Cal. App. LEXIS 10 (Cal. Ct. App. Jan. 4, 2019). Therefore, the method of pay calculation that has been in place since 2013 remains the law.

California law, as first set forth in two groundbreaking Court of Appeal cases in 2013 and subsequently codified by the California legislature in 2016, does not allow “nonproductive” work time to be lumped together with productive time when determining whether a piece-rate employee has been paid at least minimum wage. Thus, when a piece-rate employee is engaged in nonproductive work, that time must be separately compensated at a rate at least equal to minimum wage for all hours worked. California law differs from, and is more restrictive than, federal law in this respect. Under the FLSA’s piece-rate regulations, nonproductive time does not have to be separately compensated; as long as total pay divided by total hours worked for the week equals or exceeds the federal minimum wage, the law is satisfied. 29 C.F.R. §778.111.

As defined under the 2016 California statute (Labor Code Section 226.2), nonproductive time includes rest and recovery periods and “other nonproductive time,” the latter being defined as “time under the employer’s control, exclusive of rest and recovery periods, that is not directly related to the activity being compensated on a piece-rate basis.” For example, the time spent waiting for the next assignment, by an auto mechanic who is paid based on each repair or maintenance job performed, would be considered “other nonproductive time.”

In Nisei, the plaintiff-appellees argued that the term “other nonproductive time” was unconstitutionally vague because the statute failed to define precisely what activities constituted such time. The Court of Appeal rejected this argument, noting that to be unconstitutionally void for vagueness, the statute must “either forbid[] or require[] the doing of an act in terms so vague that persons of common intelligence must necessarily guess as to its meaning and differ as to what is required.” Recognizing that demonstrating unconstitutional vagueness is an “exacting” standard, the Court of Appeal added that a statute will not be considered void solely because it contains some level of ambiguity. In this case, the Court of Appeal held that the definition set forth in the statute did not meet that exacting standard of vagueness, but instead “provides an adequately discernable standard that possesses a reasonable degree of specificity.”

Accordingly, California law regarding pay calculation for piece-rate workers, as it has existed for the past several years, remains binding on all employers in the State. If you have any questions about this statute or any other wage and hour question, please contact the Jackson Lewis attorney(s) with whom you regularly work.

Arkansas, Missouri Voters Approve Minimum Wage Increases

By overwhelming majorities, voters in Arkansas and Missouri have approved incremental minimum wage increases over the next several years.

In Arkansas, Issue 5 (the Minimum Wage Increase Initiative (2018)) was approved by a margin of approximately 68% to 32%. With passage of the initiative, Arkansas’s current minimum wage of $8.50 per hour will increase to $9.25 per hour on January 1, 2019; to $10.00 per hour on January 1, 2020; and to $11.00 per hour on January 1, 2021. The minimum wage increase is estimated to affect about 300,000 employees.

Similarly, in neighboring Missouri, Proposition B (the $12 Minimum Wage Initiative (2018)) was approved by voters with a margin of approximately 62% to 38%. With its passage, the minimum wage in Missouri will increase from its current rate of $7.85 per hour to $8.60 per hour on January 1, 2019; to $9.45 per hour on January 1, 2020; to $10.30 per hour on January 1, 2021; to $11.15 per hour on January 1, 2022; and to $12.00 per hour on January 1, 2023. Thereafter, the minimum wage may increase or decrease each year based on changes in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W). An estimated 677,000 employees will be affected.

In addition to increasing the minimum wage, Proposition B increased the available damages for an employer’s violation of the minimum wage statute, by allowing recovery of liquidated damages in an amount equal to twice the amount of actual damages. Moreover, the new law extended the statute of limitations for bringing a minimum wage claim, from two years to three. Notably, government employers are exempt from the minimum wage increases in Missouri.

For more information on either of these minimum wage initiatives or any other wage and hour issue, please contact the Jackson Lewis attorney(s) with whom you regularly work.

 

DOL Eliminates Employer-Plaguing “80/20” Tip Credit Rule

The Department of Labor (“DOL”) today rescinded its prior guidance that made the tip credit unavailable for tipped employees who spend more than 20% of their time performing allegedly non-tip generating duties. The 20% limitation, contained in an internal DOL Field Operations Handbook, spawned numerous so-called “80/20” lawsuits, claiming servers spent too much time performing allegedly non-tipped work. The DOL rescinded the rule by reissuing Opinion Letter FLSA2009-23, which was first promulgated during the waning days of the George W. Bush administration and which had eliminated the rule. That opinion letter, withdrawn by the Obama administration, has been reissued as Opinion Letter FLSA2018-27. In so doing, the Wage and Hour Division has rendered invalid the Eighth Circuit Court of Appeals decision upholding the Obama-era rule in Fast v. Applebee’s International, Inc., 638 F.3d 872 (8th Cir. 2011), and the recent Ninth Circuit decision in Marsh v. J. Alexander’s LLC, 905 F.3d 610 (9th Cir. 2018). Those decisions were grounded in giving deference to the Obama-era DOL guidance that the DOL has now abandoned.

When an employee is “engaged in an occupation in which he customarily and regularly receives more than $30 a month in tips,” the employer may pay a reduced cash wage (currently $2.13) and claim a “tip credit” to make up the difference between the reduced cash wage and the $7.25 hourly minimum. See 29 U.S.C. § 203(m). Such individuals are referred to as “tipped employees.” Since 2011, the DOL had taken the enforcement position that if a tipped employee spends more than 20% of his or her time on non-tip-producing tasks (even if those tasks were directly related to tip-producing duties), the employee’s time spent on those non-tip-producing tasks must be paid at minimum wage rather than at the sub-minimum “tip credit” rate. As a result, plaintiffs’ attorneys have used the DOL’s enforcement position as the basis for lawsuits – often, collective actions – alleging that the tipped employees in question engage in non-tipped work for more than 20% of their work time and therefore are entitled to the full minimum wage for their work.

“We do not intend to place a limitation on the amount of duties related to a tip-producing occupation that may be performed, so long as they are performed contemporaneously with direct customer-service duties and all other requirements of the Act are met,” the reissued Opinion Letter notes. The DOL’s newly-announced position is consistent with that taken by Jackson Lewis in private litigation for clients and against the DOL.

A more thorough discussion of this significant agency action will be addressed in a forthcoming Jackson Lewis web article. In the meantime, if you have any questions about this development or any other wage and hour question, please consult the Jackson Lewis attorney(s) with whom you regularly work.

U.S. Department of Labor Announces Creation of New Wage and Hour Compliance Outreach Office

Focusing on education to ensure compliance with the Fair Labor Standards Act, on August 28, 2018 Secretary of Labor Alexander Acosta announced the creation of the DOL’s new Office of Compliance Initiatives (OCI). That office has launched two new websites, one to provide employers with resources to assess wage and hour compliance, and the other to provide employees with information regarding their rights and responsibilities under federal wage and hour law. Those websites are named, aptly, employer.gov and worker.gov, respectively.

The stated purpose of the OCI, according to the DOL’s website, is to “promote greater understanding of federal labor laws and regulations, allowing job creators to prevent violations and protect Americans’ wages, workplace safety and health, retirement security, and other rights and benefits. As part of its work, OCI will work with the enforcement agencies to refine their metrics to ensure the efficacy of the [DOL’s] compliance assistance activities.”

Jackson Lewis will continue to monitor the OCI’s actions. If you have any questions about this or any other wage and hour issue, please consult the Jackson Lewis attorney(s) with whom you regularly work.

Department of Labor Issues Additional FLSA Opinion Letters, Acknowledges New “Fair Reading” Standard for Overtime Exemptions

In furtherance of a practice reinstituted earlier this year, on August 28, 2018 the DOL’s Wage Hour Division (WHD) issued four new opinion letters covering FLSA topics. The current administration began that practice when, in January of this year, it reinstated seventeen opinion letters originally issued during the George W. Bush administration but subsequently withdrawn during the Obama administration. The WHD then issued three new letters in April, prior to last week’s issuance. “Opinion letters help provide greater clarity for American job creators and employees,” commented Acting Wage and Hour Division Administrator Bryan Jarrett, and “show the ongoing efforts of the Department to provide the tools employers need to comply with the law and protect workers.”

The most recent opinion letters address (with links to the letters themselves):

FLSA 2018-20: Whether time spent by employees voluntarily attending benefit fairs and undertaking wellness activities such as biometric screening, weight-loss programs and use of an employer-provided gym, are considered compensable working time (it is not).

https://www.dol.gov/whd/opinion/FLSA/2018/2018_08_28_20_FLSA.pdf

FLSA 2018-21: Whether 29 U.S.C. § 207(i), the commissioned sales employee overtime exemption, applies to a company’s sales force that sells an internet payment software platform (under the facts presented, it does). Notably, this opinion letter is the first acknowledgement by the DOL of the Supreme Court’s recent holding in Encino Motorcars LLC v. Navarro, 138 S. Ct. 1134 (2018), that FLSA exemptions are to be given a “fair reading,” rather than a “narrow construction” as previously applied by the Department and many courts.

https://www.dol.gov/whd/opinion/FLSA/2018/2018_08_28_21_FLSA.pdf

FLSA 2018-22: Whether members of a non-profit organization who serve as credentialing examination graders for one to two weeks per year, and who are not paid for their services but are reimbursed for their expenses, may properly be treated as volunteers rather than employees (under the facts presented, they may).

https://www.dol.gov/whd/opinion/FLSA/2018/2018_08_28_22_FLSA.pdf

FLSA 2018-23: Whether 29 U.S.C. § 213(b)(27), exempting from overtime employees who work at a movie theater establishment, likewise applies to those employees who work at dining services operated by, and accessible only within, the theater (it does).

https://www.dol.gov/whd/opinion/FLSA/2018/2018_08_28_23_FLSA.pdf

If you have any questions about the contents or application of the issues set forth in the opinion letters, or any other wage and hour issue, please consult the Jackson Lewis attorney(s) with whom you regularly work.

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