This week, Shake Shack excitedly announced that it was implementing kiosk-only service at its newest NYC location, with an ostensible focus on digital innovation and improved customer experience. This means that, rather than interacting with a live cashier to place and pay for an order, the customer will use the kiosk to place an electronic order and use a credit card to pay for it. I don’t doubt that plenty of research has been done to establish that this will, in fact, increase efficiency, which is a good thing because, as I sadly know, those Shake Shack lines can be interminably long. I also am fine with the fact that I will no longer need to interact with cashiers who sometimes can be surly or incompetent (although, frankly, not usually at Shake Shack. I think their hiring practices and customer service training seem to be quite good.) But what this really means is that there are fewer jobs that will need to be performed by actual people. Who would otherwise get paid.
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A Texas federal court has struck down the Obama-era Department of Labor (DOL) revised overtime exemption rule, which sought to more than double the salary level required for overtime-exempt workers.

The Current Test for Overtime-Exempt Status: In order to be exempt from overtime, a white-collar employee must meet three tests: (1) the salary basis test – the employee must be paid on a salary basis, not subject to reductions for fluctuations in quantity or quality of work; (2) the salary level test – the employee’s salary must currently be at least $455 per week (equaling $23,660 per year); and (3) a duties test – the employee must perform certain duties specific to the executive, administrative or professional exemption in question. There is also a highly-compensated employee exemption under which an employee must currently make at least $100,000 per year and perform at least one exempt duty.
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I became the commissioner of my daughter’s county basketball league when she was nine.  No one else would “step up.”  The prior year, a player had slapped another player in the handshake line at the end of a game in retribution for rough play (by an 8-year-old girl!) and no game commissioner was there to intervene.  I decided to take on the role of cool-headed logistics manager: a non-coach who could make sure the game schedule was set, the rules were observed, and each game had a designated adult in attendance to avoid bad sports behavior (whether by players, coaches or parents).  But this “cool headed commissioner” is ripping mad at the NLRB (or, to be more precise, the NLRB majority) for concluding that junior and senior high school lacrosse referees are employees and not independent contractors entitled to unionize!
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DOLEmployers rejoice! The Trump administration continues to roll back the anti-business positions asserted by various federal agencies under the Obama administration, as most recently evidenced by the Department of Labor’s June 7, 2017 withdrawal of two Administrator Interpretations on joint employment and independent contractor status.
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moneyCan prior salary justify a pay differential, or does it necessarily perpetuate sex-based pay discrimination? This was the subject of a recent Equal Pay Act (EPA) case before the U.S. Court of Appeals for the Ninth Circuit, in which the court bucked the recent trend of connecting prior salary with pay discrimination against females.

The EPA is a federal law that prohibits discrimination between employees on the basis of sex by paying employees of one sex less than employees of the opposite sex for equal work. It bears noting that the law applies to both sexes. Under the EPA, a Plaintiff must show that he or she is receiving different wages for “equal work.” If the Plaintiff makes that showing, the burden shifts to the employer to assert any of a number of affirmative defenses to explain the wage disparity, including:
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moneyI have been watching, with interest and trepidation, the Baltimore City Council’s proposal to raise the minimum wage in the City to $15/hour by 2022. While I certainly understand the desire to “share the wealth” and to ensure a decent living standard, as several Council members have stated, I am very concerned about the unintended consequences of this well-meaning action – particularly on non-profit organizations.
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keys-minFor nearly 35 years, automobile dealers relied on the U.S. Department of Labor’s position that service advisors fell within the Fair Labor Standards Act’s exemption from overtime for “salesmen, partsmen, or mechanics primarily engaged in selling or servicing automobiles.” In 2011, the DOL “upended” this interpretation by issuing regulations specifying that the exemption did not apply to “sales personnel” unless they sell vehicles.  Thus, service advisors were deemed non-exempt.

In June 2016, in Encino Motorcars, LLC v. Navarro, No. 15-415, 2016 WL 3369424 (2016), the Supreme Court held that the 2011 regulation was not entitled to deference because it was issued without the requisite reasoned explanation for a change.  The Court did not decide whether service advisors are, or are not, exempt.  The U.S. Supreme Court remanded the case to the U.S. Court of Appeals for the Ninth Circuit (which had decided the case below) with instructions that the appellate court not give any deference to the DOL’s regulations.  In other words, the appellate court should review the duties of the position (the sale of repair and maintenance services) and decide if the duties fell within the statutory exemption.


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Today, December 1, 2016, the Department of Labor issued a press release announcing that it had filed an appeal to the U.S. Court of Appeals for the 5th Circuit of the emergency nationwide injunction of the new overtime rule, which had been granted last week by Judge Amos Mazzant, as discussed in our November 23

auction-gavel-HpmTks-clipartA federal judge in Texas has issued a preliminary injunction that prevents the Department of Labor’s revised overtime exemption rule from taking effect as scheduled on December 1, 2016.

As discussed in our May 18, 2016 E-lert, in order to be exempt from overtime, a white-collar employee must meet three tests: (1) the salary basis test – the employee must be paid on a salary basis, not subject to reductions for fluctuations in quantity or quality of work; (2) the salary level test – the employee’s salary must currently be at least $455 per week (equaling $23,660 per year); and (3) a duties test – the employee must perform certain duties specific to the executive, administrative or professional exemption in question.  There is also a highly-compensated employee exemption under which an employee must currently make at least $100,000 per year and perform at least one exempt duty.
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