BOP NEWSLETTER • September 2023

Wages Due on Weekends or Holidays May Be Paid the Next Day, according to California High Court?

The California high court declined to review the case Parsons v. Estenson Logistics, LLC, in which an employee had sought to pursue claims alleging he was consistently paid two days late each week because his employer paid wages due on Saturday on the following Monday. The move leaves in place a decision by the Third District Court of Appeals that holds “when weekly-paid wages are due on a weekend or holiday, they may be paid on the next day that is not a holiday.”

Colorado Enacted A New Law Called the POWR Act?

Back in June, Governor Jared Polis signed the “Protecting Opportunities and Workers’ Rights (POWR) Act.” The new law:

• adds “unwelcome” conduct to the definition of “harassment” and rejects the judicially created “severe or pervasive” standard of proof; 
• makes marital status a protected class; 
• voids the use of nondisclosure agreements unless they meet several conditions; and
• adds new recordkeeping requirements.

Recordkeeping: employers must preserve personnel and employment records for a period of five years from the later of the date the employer created or received the employment record, the date the personnel action giving rise to the personnel record occurred, or the final disposition of a charge of discrimination or related action. The term “personnel or employment record” includes the following:

• requests for accommodation;
• written and oral employee complaints of discrimination, harassment, or unfair employment practices;
• submitted job applications;
• “records related to hiring, promotion, demotion, transfer, layoff, termination, rates of pay or other terms of compensation, and selection for training or apprenticeship”; and
• “records of training provided to or facilitated for employees.”

In addition, employers must maintain a “designated repository” of all written and oral complaints of discrimination, harassment, or unfair employment practices, including “the date of the complaint, the identity of the complaining party, if the complaint was not made anonymously, the identity of the alleged perpetrator, and the substance of the complaint.”

Separate Corporate Structure Is Not Enough to Establish Independent Contractor Status in New Jersey?

In East Bay Drywall, LLC. v. Department of Labor and Workforce Development, the Supreme Court of New Jersey held that an independent contractor’s establishment as a separate corporate structure in the form of a single-member limited liability company (LLC) or corporation accompanied by a certificate of insurance and publicly available business registration information was not alone sufficient to establish independent contractor status under the New Jersey Unemployment Compensation Act.

An Employer May Not Artificially Reduce an Employee’s Regular Rate to Avoid Paying Overtime?

The Eleventh Circuit Court of Appeals, which oversees the federal courts in Alabama, Georgia, and Florida, issued the ruling in Thompson v. Regions Sec. Servs., Inc., 67 F.4th 1301 (11th Cir. 2023).

In the case, Plaintiff David Thompson worked as a security guard for Regions Security Services, Inc. (“Regions”). At the beginning of his employment, Thompson typically worked 40 hours per week at a rate of $13.00 per hour. However, beginning in early 2019, Regions began scheduling him for about 20 additional hours per week. For the first six to seven months of this new schedule, Regions continued to pay his regular rate of $13.00 per hour which, for the additional hours beyond 40 per week, corresponded to an overtime rate of $19.50, as required under the Fair Labor Standards Act (FLSA) (i.e., 1.5 times the regular rate for each hour worked beyond forty in a workweek).

However, in mid-July 2019, Regions inexplicably reduced Thompson’s regular hourly rate to $11.15, with a corresponding hourly overtime rate of $16.73. For the next eleven or so months, Thompson worked between 55 and 75 hours a week at this reduced hourly rate. Regions then returned him to a 40-hour per week schedule and increased his regular rate to its original $13.00 per hour.

Citing an opinion from a sister circuit court, the Court of Appeals noted that an “‘agreement, practice, or device that lowers the hourly rate during statutory overtime hours or weeks when statutory overtime is worked is expressly prohibited under’ the Department’s interpretive regulations” (quoting Brunozzi v. Cable Commns, Inc., 851 F.3d 990, 997 (9th Cir. 2017)). The Eleventh Circuit added that this prohibition prevents an employer from indiscriminately manipulating an employee’s hours and pay rate to effectively avoid paying time-and-a-half for overtime.