Author: Lindsay A. DiSalvo

Emerging Trend in Compensation Equity: Pay Transparency Laws

Lindsay A. DiSalvo Leave a comment

The federal government and individual states have prohibited inequity in compensation based on protected categories such as sex, race, ethnicity, and many others for decades under general anti-discrimination laws. For instance, at the federal level, it is impermissible to pay someone less because of their sex under the Equal Pay Act, which requires that men and women in the same workplace be paid equally for equal work. More broadly, Title VII of the Civil Rights Act prohibits discriminating against someone in the terms and conditions of employment, including pay, based on sex, race, color, national origin, and religion. And many states have similar laws with more extensive applicability and additional protected categories. However, it is only more recently that the discussion regarding pay inequity has moved to the foreground propelled by national social movements such as the MeToo and BlackLivesMatter movements, among others. With this more recent discourse around pay equity, there have also been some accompanying changes in the law, including a number of cities and states adopting pay transparency laws that give broader, more public access to pay information.

What are Pay Transparency Laws

Pay transparency laws generally require that employers disclose specific pay information to applicants, such as the wage, salary range, or pay scale for the position. The timing of such disclosures, the context in which such disclosures are required to be made, and the content of such disclosures varies depending on the state or local law. The goal of these laws is to more effectively address existing wage gaps and prevent against future wage gaps by providing greater openness and standardization of the salary range for a specific position no matter the applicant. Indeed, per recent earnings data at the end of 2022, White women earned about 83% percent as much as their White male counterparts while Black men earned about 79.6% of the median income of White men, among several other gaps identified based on sex, race, ethnicity, and age, per data collected by the United States Bureau of Labor Statistics.

Traditionally, specific employee salaries have been a subject treated as private information, not broadly shared or discussed. However, pay transparency laws require that this information be proactively provided, often through the actual job posting or at least some time during the application process upon an offer being made or by request of the applicant. Pay transparency laws also frequently go hand in hand with limitations on the information an employer can obtain about an applicant’s own pay history to avoid the potential of perpetuating a pay gap by using that information to determine current compensation.

Most Recent States that Have Adopted Pay Transparency Laws

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Ninth Circuit – Time Booting Up Computer is Compensable

Lindsay A. DiSalvo Leave a comment

Customer,Service,Executive,Working,At,OfficeUnder the Fair Labor Standards Act (“FLSA”), an employer must pay non-exempt employees for all time in a workday, which means the period between the time employees commence their first “principal activity” each day and when they complete all principal activities. On October 24, 2022, the United States Court of Appeals for the Ninth Circuit (“the Ninth Circuit”) held that this includes the time it takes to boot up a computer and all activities that follow once it is booted up, including clocking in, until the computer is turned off.

The decision was very fact-specific but provides insight as to how the Ninth Circuit and other courts may evaluate similar time spent by other employees for whom computer-use is an integral and indispensable part of the work they were employed to perform.

Facts and Background of the Case

In the case, Cadena v. Customer Connexx LLC, employees brought a collective action against their employer Customer Connexx LLC (“Connexx”) for failure to pay them for all time worked, specifically the time spent booting up and turning off their computers. The employees worked as call center agents and their primary responsibilities were to provide customer service and scheduling support for customers of an appliance recycling business over the phone. In this case, however, the call center agents operate a phone program called “Five9” through their computers rather than an actual phone and this is how they make all their calls.

Importantly, before beginning their daily work tasks, employees had to clock in using a computer-based timekeeping program, which meant awakening or turning on their computers, logging in, and opening up the time keeping system. Employees do not have assigned computers, so they must take this first step from whatever state in which the computer has been left from its prior use. Once the computer has booted up, employees load various programs and call scripts, and confirm their phones are connected. At the end of the shift, they close out programs in use, clock out, then log off or shut down their computers. Per the employees, booting up the computer could take anywhere from a minute to twenty minutes and shutting down the computer can take between a minute to 15 minutes.

The lawsuit was filed with the United States District Court for the District of Nevada (“District Court”) and it included violations of the FLSA and Nevada law. The District Court granted summary judgment in favor of Connexx, finding that Continue reading →

Its Back to the Drawing Board on Browning-Ferris…Again

Lindsay A. DiSalvo Leave a comment

As the definition of a joint employer shifts with each change in Administration, so too does the holding of Browning-Ferris – a case that has been fluctuating between the National Labor Relations Board (“NLRB”) and the United States Court of Appeals for the District of Columbia (“D.C. Circuit Court”) for nearly ten years.

Court,Of,Law,And,Justice,Trial,Session:,Imparcial,Honorable,JudgeIn 2013, the Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters (the “Union”) kicked off this almost decade-long controversy by petitioning the NLRB for representation of workers that it asserted were joint employees of Leadpoint Business Services and Browning-Ferris Industries of California, Inc. (“BFI”). Since then, the NLRB and the DC Circuit Court have issued numerous and, more often than not, contradictory rulings, culminating with this most recent decision from the D.C. Circuit Court.  Here, the Court challenged the Trump Administration’s NLRB’s reasoning that BFI was not a joint employer using what the NLRB termed “a clear rule of law requiring proof of direct and immediate control” that had been in place “for at least 30 years.” Essentially, the D.C. Circuit Court vacated the NLRB’s ruling because “the [NLRB] made multiple overlapping errors” in its analysis, which the Court asserted failed to support the NLRB’s ultimate decision.

Timeline of the Case

To better understand the D.C. Circuit Court’s most recent decision, below is a timeline of the prior decisions and related action from the NLRB related to the joint employer standard: Continue reading →

DOL Guidance Further Underscores Agency’s Focus on Retaliation

Lindsay A. DiSalvo Leave a comment

The Department of Labor (“DOL”) has taken a number of actions during the Biden Administration to express and demonstrate that it is prioritizing protections against investigations of retaliation in the workplace. For example, in November 2021, the DOL, National Labor Relations Board (“NLRB”), and Equal Employment Opportunity Commission (“EEOC”) announced a joint initiative to raise awareness about retaliation issues among workers and employers. As part of the initiative, the Agencies made clear that they would be working cooperatively and, per the current Solicitor of Labor, “use all tools available to protect workers from retaliation.” More recently, in March 2022, the Wage and Hour Division (“WHD”) issued a Field Assistance Bulletin (“FAB”) specifically outlining the anti-retaliation provisions it is charged with enforcing and the elements of retaliation, as well as providing examples of what it would consider retaliation under the various laws and programs.

This FAB is significant not because it kicks off any new or additional enforcement effort by the WHD, but because it Continue reading →

DOL Sues Employer Over Pile of Pennies

Lindsay A. DiSalvo Leave a comment

By Lindsay A. DiSalvo

Pennies,Coins,MoneyWe thought it would be a good break from all the COVID-19-related coverage to delve into a retaliation case under the Fair Labor Standards Act (“FLSA”) through the lens of an interesting recent complaint filed by the Department of Labor (“DOL”) involving…a huge pile of pennies. A review of the case addresses both the types of actions that would be considered retaliatory under the law, as well as the significance of proximity when analyzing the viability of a case of retaliation. The facts as alleged by the DOL also act as a warning against the role internet postings can play in supporting a legal action.

Facts as Asserted in the Complaint

Though somewhat extraordinary, the facts in the case seem fairly straightforward. Per the DOL’s Complaint, Continue reading →

Employment Law Implications of the OSHA ETS: Paid Time Off for Vaccination

Lindsay A. DiSalvo Leave a comment

A,Doctor,In,A,Clinic,Giving,A,Coronavirus,Vaccine,ToOn November 5, 2021, OSHA published its latest Emergency Temporary Standard (“Test-or-Vaccinate ETS”) to address the effects of COVID-19 in the workplace – “COVID-19 Vaccination, Testing, and Face Coverings.”  Under the Test-or-Vaccinate ETS, employers with 100 or more employees must implement a program to facilitate (1) a COVID-19 vaccination requirement for all employees or (2) a combination of a COVID-19 vaccination requirement and weekly testing for those employees who choose not to get vaccinated.  Per OSHA’s stated intent to strongly encourage vaccination through the Test-or-Vaccinate ETS, the rule specifically requires employers to provide paid time off for vaccination AND to recover from vaccine-related side effects.  In the Preamble to the Test-or-Vaccinate ETS, OSHA asserts that these requirements ensure unvaccinated employees can be vaccinated without having to sacrifice pay or their jobs.

Below we review the two different types of leave, including their individual nuances, that are required by the Test-or-Vaccinate ETS.

Paid Leave for Vaccination

Under 29 C.F.R. 1910.501(f)(1), employers must provide reasonable time – up to 4 hours per dose – to each employee to receive their primary vaccine dose or doses during work hours.  This includes time spent:

  • Making the appointment and completing related paperwork;
  • Waiting to get and actually getting vaccinated, as well as post-vaccination monitoring; and
  • Traveling to and from the vaccination site as necessary. 

OSHA guidance does clarify that an employer is not required to reimburse an employee for transportation costs incurred to receive the vaccine, just for the actual time to receive each vaccine dose.  Even where an employer facilitates a vaccination event on site, it must provide reasonable paid time to employees to receive each primary vaccination dose, though the time may be more limited as it takes out travel and making the appointment.  Notably, if an employee chooses to receive a primary vaccination dose outside of work hours, the employer would not be required to grant paid time to that employee for that dose.  However, because of the paid leave scheme, it does seem less likely that an employee would make the choice to go outside of their work hours. 

Time must be paid at the employee’s regular rate of pay and only applies to the primary vaccination doses; i.e., time required to receive a booster shot is not required to be paid under the Test-or-Vaccinate ETS.

Importantly, this paid time cannot be offset by other forms of leave, such as sick leave or vacation leave.  As a justification for prohibiting the use of other paid leave for this purpose, OSHA explains that it created this new bucket of required paid time because it believes employees could be discouraged from getting vaccinated if they have to dip into their accrued sick leave or general PTO to get vaccinated. Continue reading →

New DOL Proposed Rule Reverses Course on Treatment of Tipped Employees

Lindsay A. DiSalvo Leave a comment

On Monday, June 21st, the Department of Labor (“DOL”) issued a Notice of Proposed Rulemaking (“NPRM”) that would alter regulations interpreting who is considered a “tipped employee” under the Fair Labor Standards Act (“FLSA”) yet again.  Specifically, the NPRM proposes (1) to withdraw the dual jobs Picture1portion of the Final Rule promulgated in December 2020; and (2) a new regulatory framework by which to determine whether an employee is performing work that meets the definition of a tipped occupation and allows the employer to take a tip credit under the FLSA.  Specifically, the FLSA allows an employer to pay a tipped employee less than the minimum wage – specifically $2.13 per hour under Federal law – only when the worker is engaged in a tipped occupation because the tips the employee receives should make up for the rest of minimum wage hourly rate.  The NPRM creates a revised standard by which an employer would determine who is a “tipped employee” and for what portion of that employee’s work hours the employer can take a tip credit and pay the employee at the lower rate.  The standard the DOL proposes to adopt generally reflects the interpretive guidance it maintained for decades before a new standard was established during the Trump Administration – the “80/20 Rule” – along with some other changes that the DOL asserts better define tipped work. 

Background of the Dual Jobs Standard for Tipped Employees

Under the FLSA, “tipped employees” are defined as those employees who customarily and regularly receive more than $30 a month in tips.  As stated, employers can pay tipped employees a reduced cash wage and claim a “tip credit” to make up the difference between the reduced cash wage and hourly minimum wage.  When the DOL first published its regulations on application of the tip credit, it directly addressed the scenario where an employee has “dual jobs” under 29 C.F.R. 531.56(e) – two jobs for the same employer.  In that situation, employers can take the tip credit only for the tipped job (i.e., the one routinely satisfying the $30-a-month provision).  Later, the DOL revised its Field Operations Handbook (FOH), vastly broadening the scope of its “dual jobs” distinction by applying it to dual tasks.  It stated that when “tipped employees spend a substantial amount of time (in excess of 20%) performing preparation work or maintenance, no tip credit may be taken for the time spent in such duties.”  This is what’s known as the “80/20 rule.”

The DOL enforced this interpretation until 2018 when Continue reading →

How to Navigate the Thorny Legal Landscape Around Employee Vaccination Status

Lindsay A. DiSalvo Leave a comment

By Conn Maciel Carey’s COVID-19 Task Force

As the number of vaccinated individuals continues to increase and we are seeing a significant decrease in COVID-19 cases, the landscape of legal requirements applicable to employers and employees is changing, particularly related to employees who are fully vaccinated.  Indeed, in an unexpected update to its guidance last week, the CDC stated that fully vaccinated individuals may resume essentially all indoor and outdoor pre-pandemic activities in almost all circumstances.  Although federal agencies such as OSHA and the EEOC have not yet updated their relevant guidance on treatment of vaccinated workers to reflect these changes, they both have stated their intent to address, and in OSHA’s case follow, the CDC guidance, and many states are doing the same.

Accordingly, employers now, more than ever, must understand and may want to take certain actions based on the vaccination status of their workers.  However, obtaining information on an employee’s status and using that information to dictate policies and practices in the work environment has legal implications and raises many important questions that could pose difficulties for employers who want to ensure that they proceed in compliance with applicable laws.  Below, we provide answers to questions we have received related to employee vaccination status as well as tips to effectively deal with these novel and complex issues.

Question 1: Can employers ask employees about their COVID-19 vaccination status?

Yes, but employers should be mindful of compliance with federal and state laws on disability, privacy and discrimination.  If the employer requests confirmation and/or proof that an employee has been fully vaccinated, this should be a simple, straightforward inquiry to determine an employee’s current vaccination status.  Such a simple, general inquiry is legitimate and would be considered permissible under applicable employment laws, particularly if it is made to determine whether:

Continue reading →

Union Elections In the Pandemic – How the NLRB is Moving Towards Mail Ballot Elections

Lindsay A. DiSalvo Leave a comment

COVID-19 has shifted the National Labor Relations Board’s (“NLRB”) longstanding policy that representation elections should generally be conducted manually.  In a recent example of COVID-19’s impact on representation elections, the Acting Regional Director for Region 10 issued a Decision and Direction of Election on January 15, 2020 requiring an election petitioned for by the Retail, Wholesale and Department Store Union (“the Union”) occur by mail-ballot because of the “undeniable presence of COVID-19 both inside and outside the Employer’s facility.”  The employer, Amazon.com Services LLC, requested a manual election – still the applicable presumption – while the Union requested an election by mail ballot.  In deciding that the election should take place by mail, the Regional Director cited guidance issued by the Centers for Disease Control related to general elections and guidance issued from the Office of the General Counsel as to what protocols should be used for a manual election during the pandemic.  But the most significant guidance the Regional Director relied on in mandating a mail-ballot election was the framework developed by the NLRB in the Aspirus Keweenaw case.

Framework Established by NLRB in Aspirus Keweenaw

In Aspirus Keweenaw, the NLRB reviewed a decision from the Regional Director for Region 18 that a mail-ballot election should occur at a hospital in Michigan over a manual ballot election because of “the extraordinary circumstances presented by the COVID-19 pandemic.”  The NLRB began its analysis by acknowledging that there is a presumption in favor of manual elections, particularly as statistics show that participation is generally higher for manual elections.  However, the NLRB recognized that its approach to elections must evolve based on the unique circumstances created by the COVID-19 pandemic and the need for more defined parameters as to when a mail-ballot election is appropriate based on changing pandemic conditions and in consideration of its preference for manual elections.  Specifically, the NLRB laid out six situations that will normally suggest a mail-ballot election:

  1. The Agency officer tasked with conducting the election is operating under “mandatory telework” status;
  2. Either the 14-day trend in the number of new confirmed cases of COVID-19 in the county where the facility is located is increasing or the 14-day testing positivity rate in the county where the facility is located is 5% or higher;
  3. The proposed manual election site cannot be established in a way that avoids violating mandatory state or local health orders relating to maximum gathering size;
  4. The employer fails or refuses to commit to abide by the GC Memo 20-10 protocols;
  5. There is a current COVID-19 outbreak at the facility or the employer refuses to disclose and certify its current status; or
  6. Other similarly compelling considerations.
Continue reading →

DC Paid Family Leave: February 1st Posting/Notice Requirement and More

Lindsay A. DiSalvo Leave a comment

As of July 1, 2020, eligible employees in the District of Columbia (“DC”) will be entitled to paid leave up to a designated period depending on the qualifying leave event.DC Flag for Blog  Covered employers should have begun making paid family leave contributions beginning July 1, 2019.  Specifically, covered employers must contribute a quarterly payroll tax of 0.62% of covered employees’ total gross wages from the immediate past quarter.  In addition to paying the required quarterly payroll tax, there are several other aspects of the law of which employers should be aware.  Here, we review and highlight important aspects of DC’s Paid Family Leave law, including the February 1st posting/notice deadline.  For additional discussion on the DC Paid Family Leave law and frequently asked questions, please also see our prior post.

Covered Events and Applicable Leave Periods

As you may know, the DC Paid Family Leave law provides leave benefits to eligible employees for three types of leave: (1) parental leave; (2) family leave; and (3) medical leave.  “Parental leave” includes events associated with the birth of a child, placement of a child with the employee for adoption or foster care, and placement of a child with an employee who legally assumes and fulfills parental responsibility for the child.  “Family leave” is leave taken to care for a family member with a diagnosis or occurrence of a serious health condition.  And “medical leave” is leave taken to attend to one’s own diagnosis or occurrence of a serious health condition. Continue reading →