E-Blasts

In November 2015, the U.S. Citizenship and Immigration Services (“USCIS”) announced proposed changes to the Form I-9, Employment Eligibility Verification.  The proposed changes were submitted for public comment and following comments, the revised form was submitted to the Office of Management and Budget (“OMB”) for final review and clearance.  The USCIS recently announced that the OMB has approved the revised Form I-9, and that the revised I-9 will be published no later than November 22, 2016.

The Department of Labor (“DOL”) announced Friday that the Chevron Corporation had agreed to pay $1.5 million in overtime back wages and penalties following a DOL investigation that found that Chevron had violated the Fair Labor Standards Act’s overtime provisions by not paying approximately 750 hourly field operators for time spent attending mandatory pre- and post-shift relief meetings, where duties were turned over to employees on the next shift.  The DOL’s investigation also found that Chevron had violated recordkeeping requirements by not accurately recording the number of hours employees worked. 

The DOL’s investigation of Chevron’s practices was part of an initiative that started in 2012 targeting the oil and gas industry.  In 2014, the Shell Oil Co. and Motivate Enterprises LLC, which markets Shell gasoline, agreed to pay $4.5 million after a DOL investigation found similar violations.  According to the DOL, it has completed more than 1,000 investigations nationally since 2012 resulting in more than $41.5 million in back wages.

As we previously reported on September 7, 2016, the California Assembly sent Governor Jerry Brown bill 1066, which expands overtime for wage order 14 employees. Despite an industry wide effort urging the Governor to veto the bill, the bill was signed on September 12, 2016.

While it seems employers have been on the losing end of most recent decisions, in Mohamed v. Uber employers scored a victory when the Ninth Circuit upheld an arbitration agreement provision that delegated the authority to an arbitrator to decide whether the arbitration agreement was enforceable instead of the court, particularly where the agreement included the option for employees to “opt out” of arbitration. Thus, it was improper for the lower court to hold that Uber’s arbitration agreement was unenforceable because the arbitration agreement granted that decision to an arbitrator instead of the Court.

Last week, the California Supreme Court agreed to hear a case regarding whether employees can bring wage and hour lawsuits over very short periods of unpaid time, referred to by defense attorneys as “de minimus” time. In Troester v. Starbucks Corp., a former Starbucks employee sued over unpaid time for completing tasks to close up the store after he had clocked out, such as shutting down the store computer system and locking the doors. In between 2008 and 2010, the former employee spent about twelve hours and fifty minutes off the clock (about four minutes per shift), or about $102.67 worth of unpaid time per the minimum wage at the time.

The district court dismissed the employee’s class action lawsuit in 2014, ruling that the time spent around the store after clocking out is inevitable and incidental to closing up any store and that not every second can be or need be recorded and compensated. The Ninth Circuit certified the question to the state high court in the midst of an appeal by the employee over whether the district court wrongly applied the “de minimis” standard.

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