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Jay Forester

Forester Haynie PLLC

ForesterHaynie.com

Dallas, Texas

Overview Primary source of national wage & hour regulation Establishes a minimum wage and a 40-hour overtime standard Also regulates child labor and equal pay issues

Today 1. Major overtime changes on horizon 2. Minimum wage updates 3. Update from SCOTUS

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$47,476: 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region, currently the South ($913* per week, up from $455)

DOL set to issue a notice of proposed rulemaking on "01/00/2019"—in other words, sometime this year. Expected to come in March 2019.

In March 2017, during Senate hearings before he was confirmed as Secretary of Labor, Acosta said he endorsed raising the threshold to account for inflation since 2004. That would place the salary threshold somewhere in the neighborhood of $33,000 per year (adjusted for inflation from 2004) (as opposed to $47,476).

If all goes smoothly, expect the new rule to be ready to go into effect in late 2020, sometime shortly after the presidential election… just as the previous attempt to raise the salary threshold was supposed to…

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Is the Employment Relationship At Issue Exempt?

“White Collar” v. “Blue Collar”ExecutiveAdministrativeProfessional Includes Computer Professionals

Not issue if … don’t work overtime.

Nothing from the feds: Federal/Texas: $7.25 (2009) (Just $2.13 for lawfully-tipped employees)(1991)

Lots of action from the States: The effective minimum wage has increased in 27 states and D.C. since January 2014.

Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Jersey, New York, Ohio, Oregon, Rhode Island, South Dakota, Vermont, Washington, Washington D.C., and West Virginia

2019 statewide minimum wage ranges

$7.25 (ex. Tx.)

$12 (Cal., Mass.)

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Not a Johnny Cash song… Albuquerque, New Mexico; Belmont, California; Berkeley, California; Bernalillo County, New Mexico; Birmingham, Alabama; Chicago, Illinois; Cook County, Illinois; Cupertino, California; El Cerrito, California; Emeryville, California; Flagstaff, Arizona; Las Cruces, New Mexico; Los Altos, California; Los Angeles County, California; Los Angeles, California; Malibu, California; Milpitas, California; Minneapolis, Minnesota; Montgomery County, Maryland; Mountain View, California; Nassau, Suffolk, and Westchester Counties, New York; New York City, New York; Oakland, California; Palo Alto, California; Pasadena, California; Portland Urban Growth Boundary, Oregon; Portland, Maine; Prince George’s County, Maryland; Richmond, California; San Diego, California; San Francisco, California; San Jose, California; San Leandro, California; San Mateo, California; Santa Clara, California; Santa Fe City, New Mexico; Santa Fe County, New Mexico; Santa Monica, California; SeaTac, Washington; Seattle, Washington; Sunnyvale, California; and Tacoma, Washington

Goals of minimum wage:

*Stabilize economy by spreading work

Create a minimum standard of living to protect the health and well-being of employees (Maslow’s hierarchy)

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With 2 more years of Trump and stronger Republican control of Senate

US Court of Appeals: 11

US District Courts (includes territorial courts*): 111

SCOTUS: 0*

Epic Systems Corp. v. Lewis

The Supreme Court had consolidated three cases, Epic Systems Corp. v Lewis (Docket 16-285), Ernst & Young LLP v. Morris (16-300), and National Labor Relations Board v. Murphy Oil USA, Inc. (16-307).

In a 5-4 decision issued in May 2018, the Court ruled that arbitration agreements requiring individual arbitration are enforceable under the FAA, regardless of allowances set out within the NLRA.

AT&T Mobility v. Concepcion, 563 U.S. 333 (2011)

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Will they take Epic Systems one step further? (Yes…)

Lamps Plus, Inc. v. Varela, No. 17-988. Oral argument October 29, 2018.

The arbitration clause at issue in this case is silent on whether workers who signed it can pursue their claims through class arbitration. A divided Ninth Circuit panel had inferred mutual assent to class arbitration from such standard language as the parties’ agreement that “arbitration shall be in lieu of any and all lawsuits or other civil legal proceedings.”

Stolt-Nielsen v. AnimalFeeds International Corp., 559 U.S. 662 (2010)

But see, New Prime, Inc. v. Oliveira, No. 17-340 (U.S., Jan. 15, 2019).

Overtime & minimum wage regulations still politically popular

Scotus as battle field legislating out (or enforcing) federal employment laws, like FLSA & NLRA

What’s next… Watch the arbitration issue re Title VII, ADA, FMLA…

Hopefully this wasn’t terrible!

Jay@foresterhaynie.com

214-210-2100

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Pop Quiz – True or False

1) Salaried employees do not have to be paid overtime.

Pop Quiz – True or False

2) Independent Contractors do not have to be paid overtime.

Pop Quiz – True or False

3) If overtime is not approved in advance, employers do not have to pay for it.

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Pop Quiz – True or False

4) Employees do not get overtime if they are paid commission.

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