Labor and Employment Law

  • May 24, 2018
    Guest Post

    by Ruben J. Garcia, Associate Dean for Faculty Development and Research and Professor of Law, University of Nevada, Las Vegas, Williams S. Boyd School of Law

    The 1905 United States Supreme Court case Lochner v. New York was rhetorically volleyed back and forth in the Court’s opinion released May 21 in Epic Systems v. Lewis by Justice Neil Gorsuch writing the majority opinion, and in the dissenting opinion penned by Justice Ruth Bader Ginsburg.  In Epic Systems, the Court ruled 5-4 that mandatory arbitration agreements that require individual employees to waive the right to join together with fellow employees in class or collective arbitrations do not run afoul of the National Labor Relations Act of 1935’s (NLRA) protections for concerted activity. This is because these waivers, according to the Court, are authorized by another statute passed by Congress 10 years earlier, the Federal Arbitration Act of 1925 (FAA). However,  neither the text of the FAA nor NLRA mention these waivers at all.

  • May 11, 2018

    by Hina Shah, Associate Professor of Law and Director of the Women’s Employment Rights Clinic at Golden Gate University School of Law

    Last week, the California Supreme Court issued a unanimous 82-page decision in Dynamex Operations West, Inc. v. Superior Court  that settled a question of law that had not been previously decided: what is the proper legal standard in determining whether a worker is an employee or an independent contractor under California’s wage and hour laws.

    Joining 14 other jurisdictions, the California Supreme Court adopted the ABC standard to determine the worker’s classification under the “suffer or permit” language of California’s wage and hour regulations, called wage orders. A worker is presumed to be an employee unless the company can establish that (a) the worker is free from control and direction over performance of the work, both under the contract and in fact; and (b) the work provided is outside the usual course of business for which the work is performed; and (c) the worker is customarily engaged in an independently established trade, occupation or business. Failure to prove any one of these factors will be fatal to being classified as an independent contractor.

  • April 30, 2018

    by Kentucky Attorney General Andy Beshear

    I am the product of a Kentucky public school education, and my mother worked as a public school teacher in Woodford County. I owe so much to the amazing teachers who helped me along my path. 

    As attorney general, I work closely with social workers, law enforcement, and state and local public employees.

    I see firsthand the true commitment of these public servants. They leave their families every morning to help our families.

    Unfortunately, my appreciation is not shared by everyone in Frankfort. Some leaders and lawmakers have called these public servants “disgusting,” “uniformed,” “ignorant” or accused them of hoarding sick days they earned.

    These leaders and lawmakers are not only badmouthing and disrespecting these public employees, they are trying to break a legal contract and cut their guaranteed retirement benefits. 

    The so-called “pension reform” legislation is Senate Bill 1.

  • April 10, 2018
    Guest Post

    by Caroline Fredrickson

    April 10, Equal Pay Day, marks the recognition that women today earn on average 80 cents for every dollar paid to men. The date is of significance since it reflects the gender wage gap – as American women must work an added four months to match her male counterparts’ salary of the year prior. It’s important to note that African-American women earn 67 cents for every dollar paid to their white male counterparts and that Latina women make 54 cents for every dollar a white man makes.

  • April 9, 2018
    Guest Post

    by Ruben J. Garcia, Associate Dean for Faculty Development and Research and Professor of Law at the University of Nevada, Las Vegas, William S. Boyd School of Law. ACS Board Member

    The United States Supreme Court’s April 2 decision in Encino Motorcars LLC. v. Navarro was certainly a setback for employees at car dealerships who work as service advisors. The Court ruled that service advisors were not eligible for overtime under the Fair Labor Standards Act of 1938 (FLSA) under an exemption that does not mention “service advisors” at all. But a dictum in the Court’s opinion represents an even greater blow for more than 70 years of interpretations under the FLSA and is a bad harbinger for enforcement of the Act in years to come.