Polsinelli at Work |  Labor & Employment Blog

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Read The Statute: Tenth Circuit Holds Claim For Failure To Accommodate Requires An Adverse Employment Action

Read The Statute: Tenth Circuit Holds Claim For Failure To Accommodate Requires An Adverse Employment Action

By: Don Samuels

In Exby-Stolley v. Board of County Commissioners, No. 16-1412, 2018 WL 4926197 (10th Cir. Oct. 11, 2018), the Tenth Circuit Court of Appeals held that for an individual to succeed on a failure to accommodate claim under the Americans with Disabilities Act (“ADA”), he or she must establish an adverse employment action, i.e., one that materially adversely affects the terms, conditions, or privileges of employment. See 42 U.S.C. §12112(a).

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California Court of Appeal Approves Variable Hourly-Based Compensation Plan

California Court of Appeal Approves Variable Hourly-Based Compensation Plan

By: Brian Morris  

In recent years, California courts have complicated the lives of employers that utilize commission and piece rate compensation systems (i.e., “activity-based compensation”).  Federal and state courts have repeatedly found activity-based compensation plans to be unlawful under California law, even when they result in per-pay-period compensation that exceeds the minimum wage.  Courts reasoned that these plans violate California law because they do not separately compensate employees for each hour worked, such as time spent performing non-commission or non-piece-rate earning tasks (e.g., waiting for work, cleaning, attending meetings, etc.).  See, e.g., Vaquero v. Stoneledge Furniture LLC, 9 Cal. App. 5th 98 (2017); Gonzalez v. Downtown LA Motors, LP, 215 Cal. App. 4th 36 (2013).

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New York State’s Anti-Sexual Harassment Requirements Now In Effect: What Employers Should Know

New York State’s Anti-Sexual Harassment Requirements Now In Effect: What Employers Should Know

By: Stephanie Delatorre

In the wake of the #MeToo Movement, New York enacted legislation that is specifically targeted to sexual harassment in the workplace.  On October 1, 2018, New York released final guidance materials regarding the legislation, including a model policy and a list of Frequently Asked Questions, which can be located here

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From Employers’ Mouths to the U.S. Department of Labor’s Ears: A Recap of the Department of Labor’s Listening Sessions

From Employers’ Mouths to the U.S. Department of Labor’s Ears: A Recap of the Department of Labor’s Listening Sessions

By: Robert Hingula

Throughout the month of September, 2018, the U.S. Department of Labor (“DOL”) held five listening sessions across the United States to receive feedback from the public on the minimum salary requirements for the white collar exemptions of the Fair Labor Standards Act (“FLSA”).  These sessions were held in Atlanta, Seattle, Kansas City, Denver, and Providence.  Another listening session is scheduled for October 17, 2018, in Washington, DC.

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Individual Employees Can Be Liable For Civil Penalties and Attorneys' Fees For A Company's Failure To Pay Overtime And/Or Minimum Wages

Individual Employees Can Be Liable For Civil Penalties and Attorneys' Fees For A Company's Failure To Pay Overtime And/Or Minimum Wages

By Laura Kastetter and Don Samuels

Notwithstanding two previous California Supreme Court decisions which essentially held that “[u]nder the common law, corporate agents acting within the scope of their agency are not personally liable for the corporate employer’s failure to pay its employees’ wages,”  Reynolds v. Bement (2005) 36 Cal.4th 1075, 1087, and Martinez v. Combs (2010) 49 Cal.4th 35, 66 (limiting liability for wage claims to the actual employer and not its agents), the California Court of Appeal just held that  individual employees can be liable for civil penalties and attorneys’ fees for a company’s failure to pay overtime and/or minimum wages.

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