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Law.com
Labor of Law
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Erin Mulvaney
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Welcome to Labor of Law—where we'll break down significant developments on the labor and employment front—the big issues, the new cases. We'll regularly feature the policy, politics and personalities at play in how we work and what keeps our economy moving today.
From Washington, I’m Erin Mulvaney, covering the labor beat from the Swamp to Silicon Valley and beyond. Send me your ideas or just say hi: emulvaney@alm.com or @erinmulvaney on Twitter.
Check out the new Law.com briefings, smart round-ups of legal news from across the ALM network that will help you track developments by practice area and topic. Sign up now for a free trial.
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"There are some black and white and gray issues. Many times these cases turn on the gray."
—Jeremy Hawpe, shareholder Littler Mendelson
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To Pay or Not to Pay? A case against Amazon.com LLC challenges whether certain shift managers were “glorified box shufflers” or had enough supervisory duties to make them exempt from overtime pay requirements. The suit filed in the U.S. District Court of the Northern District of California by a former employee, Michael Ortiz, who is represented by Scott Cole & Associates, is now seeks class action status. We caught up on the case. Read more here.
“They spent their days as glorified box stuffers required to perform virtually constant manual labor on the delivery line due to insufficient staffing and its pursuit of ‘leading the change at internet speed,’” Corey Bennett of Scott Cole wrote in court documents.
Littler Mendelson attorneys—on a webinar this week—called the misclassification question the No. 1 wage and hour issue companies face. Shareholder Jeremy Hawpe in Dallas said: "There are some black and white and gray issues. Many times these cases turn on the gray."
He and fellow shareholder Kim Rives Miers gave a rundown of the top 10 top pitfalls and note that multi-plaintiff wage and hour disputes have increased by more than 70 percent in the last decade and exceed the total actions filed under all federal employment laws combined.
Here are their top 10 pitfalls:
10. Improper use of piece rates. Does the piece rate satisfy the minimum wage?
9. Timekeeping practices that fail to capture all hours worked. A key issue here (particularly with a growing millennial workforce) is how you handle emails and texts exchanged after regular “work hours”?
8. Improper deductions. Deductions for nonexempt employees can bring pay below minimum wage. Beware.
7. Failure to include “all remuneration” in the regular rate. Do you know the difference between an hourly rate and regular rate?
6. Not paying employees for owed meeting and training time.
5. Not paying employees for certain travel time.
4. Failing to provide or pay for meal or rest breaks
3. Are you reviewing employee acknowledgments, or lack thereof?
2. Misclassifying employees as independent contractors.
1. Misclassifying employees as exempt from overtime. This is something the U.S. Department of Labor certainly knows is a big deal.
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“There’s a blind spot when it came to diversity and inclusion. In a position of privilege there often isn’t time to think about those issues.”
—Josephine Hicks, Parker Poe
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Diversity is scrutinized in legal, tech arenas. Most industries struggle with diversity and inclusion, and a particular spotlight in recent years has fallen on the legal community and the tech world. Hot off the presses, the U.S. Government Accountability Office released a report Thursday that found the technology industry fell short of making progress on hiring or promoting minorities and women. These companies have faced mountains of lawsuits. Now, the government is trying to figure out what it can do about it. Stay tuned.
Meanwhile, in the legal world, similar issues persist as opportunities evade minority attorneys. Even if minority lawyers are being hired around the country, few make partner.
The Washington Post tackled the issue this week, pointing out that: “Minority lawyers make up 16 percent at law firms—a record high—but remain scarce at the top, where only 9 percent of law partners are people of color, according to new data collected by the Minority Corporate Counsel Association. This disparity lines up with the corporate world, where 11 percent of general counsels at Fortune 500 companies are black, Hispanic, Asian or Native American, even though a third of the legal community is minority.”
As Above the Law reported this week, “The reasons for why minorities are not making partner are legion: there’s systemic racism, there’s implicit bias, there’s a retention problem, there’s a lack of mentors, there’s a lack of wealthy white clients willing to give their business to black or brown faces. Making partner is not a meritocracy, it’s a subjective invitation to an exclusive club. It’s not all that surprising that minorities continued to get shut out.”
Charlotte-based law firm Parker Poe partners spoke to me this week about these issues and their decade-long effort to bring more diversity to the firm, which set up a diversity council, employs a full time diversity director and pushes efforts to retain and promote talent with recruitment efforts and training. Two women serve on the board of directors and a class of partners represents the efforts for more diversity. Of the associates hired, 42 percent were people of color and 30 percent of summer clerks.
Chara O’Neale, diversity director, said that last year four associates were promoted to partner, three of the four were women and two were African American women.
"It’s about opening eyes and changing minds of people,” said partner Josephine Hicks, who has been part of the diversity efforts since 2006. “There’s a blind spot when it came to diversity and inclusion. In a position of privilege there often isn’t time to think about those issues."
What are your firms doing to tackle employment issues? Shoot me a note at emulvaney@alm.com.
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Here's a roundup of news and happenings on the labor & employment front.
➤➤ Every day now there's a new headline about sexual harassment—the problem isn’t going away. How can companies avoid the pitfalls of a bad employment policy? Here are five ideas companies should think about.
➤➤ Meet Ari Wilkenfeld, the veteran D.C. civil rights and employment attorney who represents Matt Lauer’s first accuser. Wilkenfeld is a veteran in Washington who's long advocated for victims of harassment and retaliation.
➤➤ NPR spotlights how courts have ruled on sexual harassment complaints: "Such cases filed by workers against their employers are very often dismissed by judges. The standard for harassment under the law is high, and only an estimated 3 percent to 6 percent of the cases ever make it to trial."
➤➤ Jackson Lewis released a new paper examining the "speak out evolution" and encourages employers to re-examine their practices. Read their take here.
➤➤ From Harvard Business Review: "Even Senior Executives Need a Side Hustle." The report, looking at the gig economy, says: "Senior executives who want to stay in their corporate jobs should strongly consider developing at least one side income stream, whether it’s consulting, speaking, coaching, or creating some other product or service."
➤➤ The Labor Department announced the official 18-month extension for the start of key provisions of the fiduciary rule. My colleague Melanie Waddell at ThinkAdvisor has more on the extension.
➤➤ The U.S. Commission on Civil Rights is urging Congress to pass legislation to protect LGBTQ workers from employment discrimination in a report this week. Given the Trump administration’s wavering stance on protections, it stresses action. Read it here.
➤➤ The EEOC got everything it wanted in one of its first cases fighting for LGBT protections in the workplace. Read my report here.
➤➤ Oral arguments are set in the U.S. Court of Appeals for the Ninth Circuit in a case challenging Seattle’s push to unionize ride-hailing drivers. The U.S. Chamber of Commerce is a lead plaintiff. Arguments are slated for February. Read my background on the dispute here.
➤➤ Beverly Hills-based civil litigation firm Rosen Saba LLP won a case against the California restaurant chain Yoshinoya America that will require the employer to compensate all workers who are scheduled to be on-call, not only those who report to work physically. Los Angeles County Superior Court Judge Elihu Berle ruled that those employees who are required to call into their jobs to find out if they are needed that day are entitled to compensation.
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