Washington's highest court has ruled that missed paid rest breaks count as "hours worked" that trigger overtime obligations for employers. According to the court, employers must add missed rest break time to their employees' hours actually worked, and pay an overtime premium for any resulting hours over 40 in a workweek. Thus, an employee who works 40 hours in a workweek and misses a required 10-minute paid rest break is owed compensation at the overtime rate of one and one half times the regular rate for the missed 10-minute rest break. To learn more about the decision, please see Littler's ASAP, Washington State Supreme Court Orders Overtime Payment for Missed Breaks, by Daniel Thieme and Breanne Sheetz.
The 2013 federal minimum wage will remain unchanged at $7.25 per hour for non-tipped employees, and $2.13 per hour for tipped employees. However, 7 states have announced that their minimum wage will increase on January 1, 2013. Moreover, one state has proposed an increase. Additionally, 2013 minimum wage determinations have not yet been announced by two states whose minimum wage is adjusted each January 1.Continue Reading...
Although the 2012 federal minimum wage will remain unchanged at $7.25 per hour, six states have announced that their minimum wage will increase on January 1, 2012. Additionally, one state has proposed an increase, and another will announce its 2012 minimum wage either this month or in December. One state, however, announced that its minimum wage will not change in 2012.Continue Reading...
A social worker required to hold a bachelor’s degree in social or human services, behavioral science or an allied field does not necessarily qualify as a “learned professional,” properly exempt from overtime under the Fair Labor Standards Act, the Ninth Circuit recently held in Solis v. State of Washington DSHS (No. 10-35590 (Sept. 9, 2011).
The social workers in question were public employees of the State of Washington’s Department of Social and Health Services (DSHS), tasked with identifying the needs of children and their families and arranging for services to assure the children’s safety and well-being. Their obligations included investigating child abuse and neglect, developing treatment plans and recommending such plans to the courts, evaluating the progress children and families made in following those treatment plans, making placement decisions, and even recommending whether parental rights should be terminated.Continue Reading...
On January 1, 2011, six states (listed below) will increase their minimum wage requirement. Two states—along with American Samoa and the Northern Mariana Islands— elected to keep their current rate. Colorado is considering an increase to the minimum wage which, if passed, will also take effect on January 1, 2011. The federal minimum wage rate remains unchanged at $7.25/hr.Continue Reading...
Ninth Circuit Rules that First Amendment's "Ministerial Exception" Bars Overtime Claim Under Washington Minimum Wage Act
The U.S. Court of Appeals for the Ninth Circuit applied the First Amendment’s “ministerial exception” to the claim of a Catholic seminarian, affirming the district court’s Rule 12(c) dismissal of the plaintiff’s claim for overtime pay under the Washington Minimum Wage Act (WMWA). In Rosas v. Corp. of the Catholic Archbishop of Seattle, the Ninth Circuit adopted a new test for determining whether a person is a “minister” for purposes of the ministerial exception.Continue Reading...
Washington State Department of Labor & Industries Approves Housekeeping Revisions to State Wage and Hour Regulations
The Washington State Department of Labor & Industries (“L&I”) has approved a number of housekeeping revisions to the Washington state wage and hour regulations contained in Chapter 296-126 of the Washington Administrative Code (WAC). The revisions take effect on March 15, 2010.
As explained by L&I, the purpose of the revisions is to “repeal and delete outdated requirements; remove duplicative provisions; establish rules consistent with current statutory requirements; specify the information for certain requirements; create cross references and update definitions and terms for consistency and clarity.”
The federal minimum wage remains unchanged at $7.25/hr. However, various states will either increase or decrease their state minimum wages come January 1, 2010, whereas other states have elected not to change their current rate.
States that are increasing their minimum wage
$7.75/hr. Effective January 1, 2010 the minimum wage must be at least fifty cents more than the federal minimum wage. Alaska Statutes, §23.10.065.
$8.25/hr. Effective January 1, 2010, the Connecticut minimum wage will increase from $8.00/hr to $8.25/hr. General Statutes of Connecticut, §31-58.
$7.25. Effective January 1, 2010, Kansas’s minimum wage increases from $2.65/hr to $7.25/hr. Kansas General Statutes § 44-1203.
A Glimpse Behind the Curtain: U.S. Department of Labor Discloses Internal Training Techniques and Strategies for Employee Interviews in FLSA Investigations
It’s not often that employers get the chance to “peek behind the curtain” into the U.S. Department of Labor’s internal techniques and strategies for conducting wage and hour investigations under the Fair Labor Standards Act (FLSA). The Department usually keeps its investigation methods confidential, and takes the position that such information is protected from disclosure under the Freedom of Information Act and the investigation privilege.
Recently, employers got a rare chance to look inside the Department’s policies and procedures in an FLSA overtime case brought by the Department against the Washington State Department of Corrections (DOC). In Solis v. State of Washington, Case No. 08-5362RJB (W.D. Wash.), the Department brought suit against the DOC for failing to keep proper records and failing to pay overtime wages to 872 state corrections officers. In response to the Department’s claims, the DOC asked the Department to produce its investigation files and records. Surprisingly, as part of its response to the DOC’s discovery requests, the Department produced a copy of its internal “Introduction to Full Investigation and Litigation (FIL) Training.” The Department uses the FIL Training guide to teach wage and hour investigators how to conduct effective investigations. As explained in the guide:
Our goal is to improve our ability to complete quality, full investigations that will convince employers that they have no choice but to change their violative behavior, or failing that, to provide a winning litigation case to the SOL [Solicitor of Labor].
Managers May Not Escape Personal Liability Under the FLSA Even if the Presumed "Employer" Files For Bankruptcy
On July 27, 2009 the Ninth Circuit issued an opinion stating that individual managers can be held liable under the FLSA even though the company that employed the plaintiffs had filed for bankruptcy. Boucher v. Shaw (9th Cir. 05-15454). In Boucher, the company that employed the plaintiffs, Castaways Hotel, Casino, and Bowling Center, that filed for Chapter 11 bankruptcy protection in June of 2003, discharged the plaintiffs in January 2004, and then converted to a Chapter 7 liquidation. Later that year, the plaintiffs filed claims under federal and Nevada state law for unpaid wages against three Castaways managers. The district court dismissed the plaintiffs' claims and the plaintiffs appealed. With respect to the state law claim, the issue was certified to the Nevada Supreme Court, which determined that individual managers could not be found liable as "employers" under the relevant Nevada state law. The Ninth Circuit then addressed whether the defendants could be personally liable despite Castaways' bankruptcy.
It is generally settled law that certain managers, depending on factors such as the amount of interest and control they exert over the structure of an employment relationship, can be individually liable for violations under the FLSA as an “employer.” See Lambert v. Ackerley, 180 F.3d 997, 1011-12 (9th Cir. 1999); Chao v. Hotel Oasis, 493 F.3d 26 (1st Cir. 2007). In this case, there was no dispute that the individual defendants could be considered employers under the FLSA. Instead, they argued that the conversion of Castaways' bankruptcy from Chapter 11 to Chapter 7 terminated their duty to pay the plaintiffs their wages. The Ninth Circuit rejected the argument. First, the court noted that the plaintiffs were terminated prior to the conversion to Chapter 7, meaning that their pay had already been earned. The court held further that the nature of the bankruptcy filing by Castaways was irrelevant because Castaways was not a defendant in the wage and hour case, the defendants (the managers) were not debtors in bankruptcy, and an automatic stay intended to protect a debtor could not affect the plaintiffs' claims.
Several new wage and hour bills made it through various state legislatures during the second quarter of the year. Below is a wrap up of new developments (including regulatory updates) from April 1, 2009 through June 30, 2009.
Alabama House Bill 144, Effective 5/19/2009. Modifying several aspects of the state child labor laws.
Colorado House Bill 1108, Effective 8/5/2009. Provides that an employer under specified circumstances is subject to penalties if an employee's paycheck is not paid because the employer's bank does not honor the paycheck.
Connecticut House Bill 6185, Effective 10/1/2009. Concerns equal pay discrimination.
Florida House Bill 569, Effective 7/1/2009. Allows wages to be paid by a payroll debit card.
Indiana Senate Bill 465, Effective 7/1/2009. Requires an employer to provide a pay stub to employees and post a notice regarding the state's minimum wage law. The notice must include an employee's basic rights and who to contact for information, questions or complaints.
Iowa House Bill 618, Effective 7/1/2009. Update to civil and criminal penalties, including increase of maximum penalty to $10,000 for the illegal use of child labor, and provides that wage discrimination is an unfair employment practice under the state civil rights act.
Kansas Senate Bill 160, Effective 1/1/2010. Increases the minimum wage from $2.65 an hour to $7.25 an hour.
Maine House Bill 280, Effective 9/18/2009. Requires break time for nursing mothers in the workplace and requires an employer to provide a sanitary space, which must be close to the work area and may not be a bathroom, for nursing mothers to express milk in privacy.
Maryland Code of Administrative Rules 09.12.02.01 -.02, Effective 6/19/2009. Amends rules relating to equal pay for equal work. Requires employers to collect certain employee data, such as the gender and racial classification of their employees and records must be maintained by the employer for 3 years.
Montana House Bill 133, Effective 10/1/2009. Amends the definition of “income” with respect to garnishments to exclude mandatory retirement and disability contributions and union dues.
Nevada Assembly Bill 84, Effective 7/1/2009. Expands exemption for salespersons to any employee in a retail or service business. In order to qualify for the exemption, the employee must earn at least half of his/her compensation through commissions and be paid more than 1½ times the minimum wage.
New Mexico House Bill 489, Effective 6/19/2009. Allows workers to collect treble damages against employers that violate the state's $7.50-an-hour minimum wage law.
North Dakota Senate Bill 2344, Effective 8/1/2009. Exempts the act of breastfeeding from the offense of indecent exposure. An employer may use the designation "infant friendly" on its promotional materials if the employer adopts a workplace breastfeeding policy that includes specific criteria.
Oklahoma Administrative Code sections 380:30-1-7, -3-4, -5, Effective 7/1/2009. Amends rules to clarify the requirements for a valid payroll deduction agreement.
Oklahoma Senate Bill 527, Effective 11/1/2009. Provides that if an employer pays an employee with a check that is subsequently returned by reason of the refusal of the bank to honor the check due to insufficient funds or a stop payment notice, the employer must reimburse the employee for any fees or costs incurred by the employee within 14 days. Additionally requires employers to post a notice describing the pertinent provisions of the Oklahoma Minimum Wage Act. The notice must be not less than 8 1/2 by 11 inches and must be displayed and accessible to all employees in each establishment under the control of the employer.
Oregon House Bill 2826, Effective 1/1/2010. Increases the hours of the day during which children under 16 years of age may work; provides for additional hours of work during summer.
Oregon House Bill 3474, Effective 1/1/2010. Increases processing fee chargeable to employee by employer for garnishments of employee's wages.
Oregon Senate Bill 373, Effective 1/1/2010. Provides that an obligor and obligee under a support order may bring a civil action for damages against an employer or other person who withholds money under an order to withhold, but who fails to pay the withheld amounts within the time allowed by law.
Vermont House Bill 313, Effective 6/1/2009. Amends the state minimum wage law to clarify that annual adjustments to the state minimum wage are not to result in a decrease in the minimum hourly wage rate.
Washington House Bill 1596, Effective 7/26/2009. Protects a woman's right to breastfeed in a place of public resort, accommodation, assemblage, or amusement.
The start of a new year often brings with it changes in governing wage and hour legislation. Effective January 1, 2009, eleven states will increase the minimum wage for employers subject to state wage and hour laws. In addition to noting the wage increase, employers should ensure that they are properly displaying a copy of the state’s current minimum wage poster in a conspicuous location in the workplace that notes the wage increase, even if the increase will not affect hourly employees at any particular workplace. The following states have increased their state minimum wage, effective January 1, 2009:Continue Reading...