Polsinelli at Work |  Labor & Employment Blog

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Oregon Expands Effort to Achieve Equal Pay

Oregon Expands Effort to Achieve Equal Pay

By Brian K. Morris

This month, Oregon joined a number of other states, including California, Massachusetts, Maryland, and New York by strengthening existing equal pay laws. The new law, the Oregon Equal Pay Act of 2017 (“OEPA”), has three (3) central components:

  • Applying equal pay protections to disparities based on race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age;
  • Curbing an employer’s ability to obtain or rely upon an applicant’s prior compensation to determine his or her current compensation; and
  • Changing and substantially limiting the defenses available to employers sued for alleged equal pay violations.
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Summertime Advice: Three Best Practices Regarding the Employment of Minors

Summertime Advice: Three Best Practices Regarding the Employment of Minors

By Lilian Doan Davis

School’s out for summer. While some students will sit by the pool, others are seeking summer employment. Youth employment may provide a relatively simple and cost-effective resource that can help fill seasonal staffing needs. However, employers should be mindful of federal and state laws that regulate the employment of minors (generally individuals under 18 years of age) to avoid being subject to considerable penalties.

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Eleventh Circuit: No Private Right of Action under FLSA for Withheld Tips

Eleventh Circuit: No Private Right of Action under FLSA for Withheld Tips

By Stephanie D. Delatorre 

Earlier this week, the Eleventh Circuit Court of Appeals held that the Fair Labor Standards Act (“FLSA”) does not provide for a private right of action for withheld tips when minimum wage and overtime claims are not in play. The district court dismissed a proposed collective action brought by a valet driver who claimed that her employer took a portion of all valets’ tips to pay for business expenses in violation of the tip credit provisions of the FLSA. The valet driver’s collective claims relied exclusively on a 2011 U.S. Department of Labor regulation (29 C.F.R. § 531.52), which states that “[t]ips are the property of the employee whether or not the employee has taken a tip credit.” The claims were not supported by any specific statutory language in the FLSA authorizing a private right of action for withheld tips.

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Fourth Circuit Strikes a Blow to FCRA Plaintiffs

Fourth Circuit Strikes a Blow to FCRA Plaintiffs

By Michele Haydel Gehrke and Brian K. Morris

Recently, the Fourth Circuit reversed an $11.7 million verdict in a 69,000 member Fair Credit Reporting Act (FCRA) class action. In Dreher v. Experian Info. Solutions, Inc., 856 F.3d 337 (4th Cir. 2017), the Fourth Circuit applied the Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016) and concluded that the plaintiffs failed to demonstrate a concrete injury and thus lacked Article III standing to pursue the claims. The plaintiff in Dreher underwent a background and credit check to obtain a federal government security clearance, which revealed a delinquent credit card account. The plaintiff alleged that Experian violated the FCRA by listing the incorrect name (but the correct address) of the delinquent account holder on his credit report. 

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Department of Labor Withdraws Joint Employer and Independent Contractor Classification Guidance

Department of Labor Withdraws Joint Employer and Independent Contractor Classification Guidance

By Katharine K. Sangha

On June 7, 2017, the Department of Labor (“DOL”) announced that legal guidance promulgated during President Obama’s term in office regarding both joint employment and the classification of workers as independent contractors has been withdrawn. 

In July 2015, the DOL’s Wage and Hour Division issued a 15-page Administrator’s Interpretation regarding the determination of workers as independent contractors or employees. Specifically, the Administrative Interpretation considered the Fair Labor Standards Act’s (“FLSA”) definition of “employ,” meaning to “suffer or permit” work, and the impact of the legal test for whether workers are considered employees or independent contractors. At that time, the DOL’s Wage and Hour Division took the position that, under the FLSA, “most workers are employees.”

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