Over two years ago, the Northern District of California issued an order requiring the OFCCP to disclose EEO-1 Type 2 reports to the Center for Investigative Reporting (“CIR”) over the objections of thousands of employers, as previously reported. In the interim, OFCCP did not release the reports for those employers who had objected as they appealed the District Court’s decision to the Ninth Circuit. In 2025, the Ninth Circuit affirmed the District Court’s decision that the EEO-1 reports did not contain “commercial” information that would be protected from disclosure pursuant to an exemption under the Freedom of Information Act (“FOIA”). The case remains pending in the District Court with other issues to be resolved. However, the Ninth Circuit’s decision became final after the OFCCP chose not to seek rehearing of the issue – and the parties filed a stipulated proposal with the District Court regarding the end of the stay of the release of the reports. The District Court granted the stipulation on February 9, 2026, which will allow for the release of the reports from 2016-2020. The District Court has now ordered the following by February 11, 2026: OFCCP shall release the reports of five “bellwether” objecting contractors which were considered in making the determination of whether the reports contained “commercial information.” OFCCP shall provide notice to the additional 4,500+ objecting contractors that their reports will be released on February 25, 2026. Contact your Polsinelli attorney for further guidance regarding the release of the reports, the potential effect of the release on your organization, and other government contractor matters.

What you need to know: DOL will no longer seek liquidated (double) damages in pre-litigation FLSA settlements, limiting recovery to unpaid wages. Liquidated damages still apply in court cases, so employers remain at risk in litigation. Early in the Biden administration, the Wage and Hour Division of the Department of Labor (“WHD”) issued Field Assistance Bulletin No. 2021-2 reversing practices adopted during the first Trump administration and returning to a more vigorous pursuit of liquidated damages from employers in pre-litigation investigations regarding potential violations of the Fair Labor Standards Act (“FLSA”). Now, just a few months into the second Trump administration, the WHD has reversed course again. Pursuant to Field Assistance Bulletin No. 2025-3, FAB No. 2021-2 is rescinded and the WHD will limit all pre-litigation administrative settlements to the recovery of unpaid wages or overtime compensation. It will no longer request any liquidated damages in pre-litigation investigations or resolutions. Liquidated damages are essentially “double damages,” requiring an employer that is liable for minimum wage or overtime compensation violations pay a second amount equal to the unpaid wages. In explaining this new approach, the WHD noted that Congress had “authorized” liquidated damages “only in judicial proceedings – not administrative matters” under the FLSA’s Section 216(c), which allows the DOL to “supervise the payment” of unpaid wages or overtime compensation to employees. It is the WHD’s opinion that is it “not authorized to seek liquidated as part of any payment it supervises under § 216(c).” The WHD also pointed to Section 260 of the FLSA to support its conclusion, because that Section vests courts – not the Agency – with the authority to evaluate employer’s good faith defenses that might preclude a recovery of liquidated damages. FAB 2025-3 states that “[t]he structure of § 260 reinforces that liquidated damages are a judicial remedy, and not an administrative tool available.” The practice of seeking liquidated damages in pre-litigation investigations and settlements began in 2010 under the Obama administration. While the first Trump administration attempted to rein this practice in to an extent with FAB No. 2020-2, the current stance is more aggressive. Of course, liquidated damages remain available in any litigation involving an FLSA violation – whether that litigation is brought by the WHD/DOL or a private party. For questions and assistance regarding WHD wage-and-hour investigations or other issues involving the FLSA or other wage-and-hour laws, please contact your Polsinelli attorney. 

The Ninth Circuit has now joined a growing number of appellate courts holding that, in Fair Labor Standards Act (FLSA) collective actions, personal jurisdiction must be determined on a claim-by-claim basis when general jurisdiction over the defendant is absent. In Harrington v. Cracker Barrel Old Country Stores, Inc., a group of current and former employees alleged that Cracker Barrel had violated the FLSA in its treatment of tipped workers’ wages. The case was filed in the District of Arizona, though Cracker Barrel is incorporated and headquartered in Tennessee. The plaintiffs sought conditional certification of a nationwide collective action. Following the traditional two-step certification process, the district court conditionally certified the collective and authorized notice to be sent nationwide, reasoning that the presence of a single plaintiff with a connection to the forum state sufficed to establish specific personal jurisdiction for all claims. Cracker Barrel then asked for an interlocutory appeal on three issues. The Ninth Circuit affirmed the district court on two, but took up the third question: Does the Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court of California apply to FLSA collective actions in federal court, thereby rendering nationwide notice improper? In Bristol-Myers Squibb Co. v. Superior Court of California, 582 U.S. 255 (2017), the Supreme Court held that the Fourteenth Amendment’s Due Process Clause prohibits state courts from exercising specific personal jurisdiction over claims by non-resident plaintiffs against a non-resident defendant when the claims lack a sufficient connection to the forum state. The Third, Sixth, Seventh and Eighth Circuits have already extended this principle to FLSA collective actions, while only the First Circuit has reached a different conclusion. Aligning with the majority, the Ninth Circuit held that when a collective action is based on specific personal jurisdiction — that is, where the defendant is neither incorporated nor headquartered in the forum state — each opt-in plaintiff’s claim must be evaluated for its connection to the defendant’s activities in that state. Accordingly, the Ninth Circuit reversed the District of Arizona’s authorization of nationwide notice, concluding it was based on the “mistaken assumption” that such specific personal jurisdictional analysis was unnecessary. For questions and assistance regarding collective actions or other issues involving the FLSA or other wage-and-hour laws, please contact your Polsinelli attorney. 

On October 29, 2024, the Office of Contract Compliance Programs (“OFCCP”) published a notice in the Federal Register about a request for Type 2 Consolidated EEO-1 Reports (the “Consolidated Reports”) for 2021. (The request is also for 2022 reports, but OFCCP does not currently have those reports.) This request has been made by the University of Utah and a non-profit organization named “As You Sow” – and is separate from the 2022 request made by the Center for Investigative Reporting, which sought the same reports for 2016-2020. An appeal of the proposed release of the objected-to data remains pending in the Ninth Circuit. The Consolidated Reports contain demographic data for all employees at headquarters as well as all establishments, categorized by race/ethnicity, sex, and job category. With the publication of the Notice by OFCCP, government contractors now have until December 9, 2024, to object to the release of this sensitive data. If contractors miss that deadline, their data could be automatically released. The OFCCP has provided a list of contractors subject to this request.  As occurred with the prior FOIA request for Consolidated Reports, contractors must submit their objections to the release of the data to OFCCP through the OFCCP’s Submitter Notice Response Portal (or certain other specified means). The portal provides specific questions for contractors to answer, which address whether the Consolidated Reports and their data should be withheld pursuant to FOIA Exemption 4, which specifically addresses the withholding of trade secret or commercial or financial information. The OFCCP has provided FAQs to aid contractors in determining whether they are covered by the request and how to object, as well as providing contact information for reaching out to the OFCCP FOIA Help Desk. If a contractor submits an objection, OFCCP will independently evaluate the objections and make a determination regarding withholding the Consolidated Reports under Exemption 4. Both the objector and the requesting entities will receive notice of a determination to withhold data. Accordingly, if there is data in your Consolidated Reports that you don’t want published or accessible to competitors, act quickly to submit objections prior to the December 9th deadline. Otherwise, you should expect that your report’s data may be provided to an entity who will make it public. For questions or assistance in evaluating whether you should file an objection to the FOIA request, or in preparing an objection, please contact your Polsinelli attorney.

As has been expected, and as we addressed at the end of 2023 in our previous blog post, on April 23, the U.S. Department of Labor (“DOL”) at long last issued its final rule raising the salary thresholds for overtime exemptions. The rule, “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees,” addresses the scope of the carveout for positions deemed to be exempt from the overtime requirements of the Fair Labor Standards Act (“FLSA”). Specifically, the final rule sets into motion increases in the salary threshold that must be met for a position even to be potentially exempt. The salary thresholds are higher in the final rule than they were in the proposed rule. Beginning July 1, 2024, the salary threshold will increase to $43,888/year from the current level of $35,568/year. Following that, the threshold level will increase to $58,656/year on January 1, 2025. The January 2025 level equates to $1,128/week. The DOL has said that the increased threshold beginning January 1, 2025, will affect some 3 million workers. In addition to the general salary exemption thresholds, the rule will raise the threshold for classification as a highly compensated employee, from the current $107,432 to $132,964 in July 2024 and then to $151,164 in January 2025. This will not be the last increase – the rule sets forth that automatic updates to the threshold amounts will take place every three years based on the latest earnings data. As has been the case with previous attempts at increases through DOL rules, we anticipate there will be challenges to the rule. Finally, the rule will not alter the duties necessary for the exemption qualification of a position. And employers should remember that some states have higher salary thresholds for exemption under their state wage-and hour laws. Contact your Polsinelli attorney for further guidance regarding this rule change and other wage-and-hour matters.

Despite objections by thousands of employers and its continuing review of records, the OFCCP has been ordered by a federal court to produce all EEO-1 Type 2 reports of federal prime contractors and first-tier subcontractors from 2016-2020 as requested by the Center for Investigative Reporting (“CIR”) through multiple FOIA submissions. CIR filed litigation to enforce its FOIA request in December 2022 in the Northern District of California. On December 22, 2023, that court issued an order requiring OFCCP to produce the EEO-1 Type 2 reports, determining that the information included in the reports was not the type of “commercial” information protected from release under FOIA. Specifically, the court found that the reports were not exempt from disclosure under Exemption 4 of FOIA as the information in the reports is not “intrinsically valuable business information” and the headcounts in all industries and across broad job categories do not provide “commercial insight…specific to the operations of a federal contractor.” The court also rejected OFCCP’s assertion the data constituted trade secrets protected from disclosure and found no substantial risk of harm through the disclosure of competitive business secrets. While the court initially required OFCCP to produce the EEO-1 Type 2 reports by January 19, 2024, the parties agreed to extend the deadline to February 20, to give OFCCP an opportunity to determine whether to appeal the decision. It is anticipated that an appeal of the decision will delay any required disclosure of the reports. Contact your Polsinelli attorney for further guidance regarding this anticipated disclosure and other government contractor matters.

As 2023 comes to a close, so did the notice-and-comment period for the U.S. Department of Labor’s (DOL) proposed rule increasing the minimum salary required for employees to be exempt under any of the “White Collar Exemptions” from overtime pursuant to the Fair Labor Standards Act (“FLSA”). With that period closing in November, it can be anticipated that steps will be taken in the upcoming election year to implement the new rule. As a reminder, and as explained in our previous blog post, the DOL has proposed the threshold salary level for exemption from overtime be raised from $35,568/year ($684/week) to $55,000/year ($1,059/year). It also proposes increasing the Highly Compensated Employee exemption threshold to $143,988 annually. The rule will not modify the duties necessary for exemption qualification. Employers may wish to keep these thresholds in mind as they review and implement compensation decisions in the new year. Employers should also take note that six states (Alaska, California, Colorado, Maine, New York, and Washington) have minimum salary requirements for overtime exemption that both exceed the current federal level and will further increase on January 1, 2024. Contact your Polsinelli attorney for further guidance regarding this potential rule change and other wage-and-hour matters.

A recent case from the Eastern District of California emphasizes the importance of employers having facially neutral and lawful wage-and-hour policies – as such policies can help in defeating class certification. In Tavares, et al. v. Cargill, Inc., et al., the Plaintiff sought certification of a Rule 23 class consisting of all hourly and non-exempt employees who worked at the Defendants’ Fresno, California meat-processing facility. That proposed class included about 4,000 employees, most of whom were production employees. Plaintiff claimed, among other things, that those employees had not been properly compensated for minimum wage and overtime, largely due to purportedly having to perform tasks before and after clocking into the timekeeping system for which they were not paid. Those tasks included donning/doffing, pre-shift COVID health checks, cleaning lockers, and reading breakroom bulletin boards. Plaintiff claimed the Defendants had a uniform policy of requiring this work be performed off-the-clock. The court found, however, that the Defendants’ policies were facially valid – that such tasks were supposed to be occurring while clocked in, if they were required at all. To determine any violation of that policy – and thus, a potential violation of wage-and-hour laws – would require numerous individualized inquiries, including whether each class member wore PPE, whether they utilized their lockers, and whether they were required to look at any breakroom bulletin boards. The court’s willingness to reject class certification at a single work location based on the various individualized circumstances presented by the proposed class reflects the continuing trend of heightened scrutiny of granting class and collective certification in wage-and-hour cases. Contact your Polsinelli attorney or a member of the Employment Class & Collective Actions practice group for further guidance regarding this decision and other wage-and-hour matters.

In May 2022, the EEOC filed an age discrimination lawsuit against a group of affiliated companies employing English-language tutors. According to the EEOC, for a brief period in the spring of 2020, those companies programmed application software to automatically reject female applicants over 55 years old and male applicants over age 60. The lawsuit alleged this screening process affected over 200 applicants that were above the programmed age thresholds. The parties have now reached a settlement. The settlement itself is expansive. As is typical with many EEOC settlements, the provisions extend beyond monetary payments. Here, in a consent decree filed in federal court, the employers agreed to various non-monetary obligations, including providing notice of the lawsuit to high-level executives and HR employees, retaining a third-party group to conduct extensive training on all federal equal employment opportunity laws, and inviting the rejected applicants to re-apply (with reporting obligations to the EEOC). This lawsuit and the subsequent settlement is likely just the first of many of its kind, but it highlights the need to proceed with caution when relying on automated decision-making processes, as well as AI usage generally. Employers should accordingly critically assess the use of technology – such as the application software at issue in the EEOC’s lawsuit – and ensure that its use complies with applicable employment laws. For additional guidance regarding the use of AI in the workplace, contact your Polsinelli attorney.

In a recent case from the District of Colorado, a federal judge made clear that (at least in the Tenth Circuit) the first step of conditional certification is not just a rubber stamp to move on to the next stage of litigation in Fair Labor Standards Act (“FLSA”) collective action lawsuits. And while other courts are rejecting the two-step process altogether (see our recent blog post here), even when the lower conditional certification standard is applied, it still can have some teeth to it. In Bowling v. DaVita, Inc., the plaintiff sought conditional certification of a nationwide collective of nurses and technicians claiming unpaid overtime wages based on working through their required unpaid lunch breaks pursuant to a company-wide policy. Despite the existence of a written policy requiring that employees be compensated for working during lunch breaks, the plaintiff argued that the employer actually mandated employees always clock out for lunch breaks – but that they also remain available to and actually perform work while off-the-clock. At the time of the motion seeking conditional certification, six other individuals had joined the lawsuit. Ultimately, the court rejected a nationwide collective in applying the Tenth Circuit standard: whether the Plaintiff had made substantial allegations that the proposed collective members were subject to a single decision, policy, or plan. Based on the allegations and evidence before it, the court determined that conditional certification was appropriate only in the 9 states in which the employees in the lawsuit (the named plaintiff plus the six who joined the lawsuit) had worked. The court explained that the term “substantial” must carry weight – and with personal knowledge limited to the practices and policies in those 9 states, allegations regarding other locations were not substantial. This willingness to limit the scope of the collective to only those states where individuals who joined the lawsuit actually had knowledge appears to be in line with the growing trend of heightening the standard for certifying a collective action. With these trends and changes, it may be just a matter of time before the Supreme Court finally weighs in on what the standard should be. Contact your Polsinelli attorney for further guidance regarding this decision and other wage-and-hour matters.

Earlier this month, the United States Court of Appeals for the Eleventh Circuit issued a decision restricting employers’ abilities to fight off putative class action claims regarding data breach and cyberattacks on employee personal identifying information (“PII”). In Ramirez v. Paradies, the defendant-employer suffered a ransomware attack on its administrative systems where cybercriminals were able to obtain the Social Security Numbers current and former employees. Later, the Plaintiff in the case (Ramirez) was informed that unemployment assistance claims were filed under his name using his Social Security Number without his authorization. Ramirez filed a class action lawsuit claiming negligence and breach of implied contract.  Ramirez argued the employer should have protected the PII of its employees and because of their failure to do so, he suffered annoyance, anxiety, increased risk of fraud and identity theft, and a diminution in the value of his PII. The district court granted the employer’s motion to dismiss for failure to state a claim on both issues. The Eleventh Circuit reversed and remanded the district court’s decision on the negligence claim, determining the employer did owe a duty of care to its employees to protect PII under Georgia’s tort principles. The Eleventh Circuit in its decision stated, “[w]ithout clear guidance from Georgia courts on the asserted duty to safeguard PII, we must “apply traditional tort law.” The court went on to emphasize the longstanding principle that where there is a special relationship (i.e., an employer and their employee) between parties, a duty of care is owed. The court also determined intervening criminal acts of a third party are not sufficient to insulate an employer from liability where the employer had “reason to anticipate the criminal act.” The court explained that the employer should have been able to anticipate the data breach as a reasonably foreseeable result of (1) the "size and sophistication" of the employer, which maintained a PII database of 75,000 current and former employees and had over $1 billion in sales and (2) failing to adhere to the abundance of industry warnings and advice on how to prevent and detect such an attack. While this case is based on Georgia tort law, the tort principles applied by the Eleventh Circuit (the duty of care, the special relationship between employers and their employees, and the foreseeability of harm) likely extend to nearly every jurisdiction in the country. It is an important reminder for employers to be aware of these longstanding tort principles applying to protection of employee PII, and the importance of protecting such information. Contact your Polsinelli attorney for further guidance regarding this decision and guidance regarding protecting employee data.

Today OFCCP announced that it is extending the deadline to respond to and submit objections pursuant to its August 19, 2022, Notice in the Federal Register regarding a Freedom of Information Act (“FOIA”) request from Will Evans, a Senior Reporter and Producer with the Center for Investigative Reporting (“CIR”). The request seeks federal contractors’ Type 2 Consolidated EEO-1 Report Data. For a discussion of the scope of the request and additional details about the substance and process of objecting, click here. What Has Changed? OFCCP indicated that after publishing the Notice in the Federal Register, it had received numerous requests from contractors and contractor representatives to extend the time period for submitting objections. In addition, during this same time period, some federal contractors have reached out to OFCCP seeking to verify whether they are included in the universe of “Covered Contractors” during the requested timeframe for the reports. To accommodate these concerns, OFCCP has extended the deadline to submit objections by a month – from September 19, 2022, to October 19, 2022. Further, OFCCP will also be taking the additional step of emailing contractors that OFCCP believes are covered by the FOIA request. OFCCP will use the email addresses provided by contractors registered in OFCCP’s Contractor Portal, as well as the email addresses provided as a contact for the EEO-1 report when submitted. This undertaking should provide some clarity to contractors who are unsure if they are within the scope of the FOIA request. Important Reminders OFCCP has created a Portal for submitting objections to the FOIA request, and has provided FAQs to aid in determining if a contractor is covered by the request and how to object to the request. In addition, OFCCP has provided direction for seeking assistance by contacting the OFCCP FOIA Help Desk by phone or email. What Happens Next? If you do not submit an objection to the FOIA request, then OFCCP will release the data to CIR as a part of a rolling production after October 19. If you do submit an objection, OFCCP will independently evaluate the objections and make a determination regarding withholdings under Exemption 4. Both the objector and CIR will receive notice of a determination to withhold data. If there is information in your EEO-1 Reports that you don’t want published or accessible to competitors, act quickly to submit objections to OFCCP prior to the October 19 deadline. Otherwise, you should expect that your report’s data may be provided to a reporter who will make it public. For questions or assistance in evaluating whether you should file an objection to the FOIA request, or in preparing an objection, please contact your Polsinelli attorney.

On August 19, 2022, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) published a Notice in the Federal Register regarding a Freedom of Information Act (“FOIA”) request from Will Evans, a Senior Reporter and Producer with the Center for Investigative Reporting (“CIR”).  The FOIA request seeks the disclosure of certain government contractor compliance reports submitted to the Equal Employment Opportunity Commission. The OFCCP is allowing affected contractors to submit objections to the FOIA request if they fear confidential commercial information may be disclosed and ultimately published. The Scope of the Request The FOIA request was initially made in January 2019 but has been amended multiple times and now seeks all Type 2 Consolidated EEO-1 Report demographic data submitted by federal contractors and first-tier subcontractors from 2016-2020. The request does not include EEO-1 requests from single-establishment (Type 1) contractors, other EEO-1 reports filed by Type 2 (multi-establishment) contractors or Component 2 reports with compensation data. Type 2 Consolidated EEO-1 Reports are consolidated reports of demographic data for all employees at headquarters as well as all establishments, categorized by race/ethnicity, sex, and job category. OFCCP estimates that nearly 15,000 companies filed reports subject to the FOIA request. A company can use the EEO-1 Online Filing System’s historic data to determine if they filed EEO-1 Reports between 2016 and 2020. What If I Don’t Want My EEO-1 Reports Made Public? FOIA grants the public the right to request access to records from any federal agency. However, there are certain exemptions that allow agencies to redact – or entirely withhold – certain requested information. In its Notice, the OFCCP states it believes that the information requested may be protected from disclosure under FOIA Exemption 4 – which protects disclosure of confidential commercial information. Accordingly, OFCCP is now requesting that any federal contractor who filed a Type 2 Consolidated EEO-1 Report as a federal contractor between 2016 and 2020 and who wishes to object to the disclosure of the information submit an objection to the OFCCP by September 19, 2022. How Do I Submit an Objection? Because of the large number of affected companies, OFCCP has established a portal for contractors to submit written objections. While the OFCCP encourages the use of the portal, objections may also be submitted via email to OFCCPSubmitterResponses@dol.gov, or by mailing to “ATTN: FOIA Officer (FRN), Office of Federal Contract Compliance Programs, Division of Management and Administrative Programs, 200 Constitution Avenue NW, Room C3325, Washington, DC 20210. All objections, however submitted, must be received by OFCCP by September 19, 2022. What Must I Include in the Objection? The OFCCP specifically requires the objection to include the contractor’s name, address, and contact information, and should, at a minimum address the following questions to determine if information should be withheld pursuant to FOIA Exemption 4: What specific information in the Report does the contractor consider to be a trade secret or commercial or financial information? What facts support the contractor’s belief that this information is commercial or financial in nature? Does the contractor customarily keep the information private or closely-held, what steps are taken to protected the confidentiality of the information, and to whom has it been disclosed? Does the contractor contend the government provided an express or implied assurance of confidentiality, or were there express or implied indication that the government would publicly disclose the information? How would disclosure of this information harm an interest of the contractor? Will it, for example, cause foreseeable harm to economic or business interests? How Do I Know if My Information Is Covered Under FOIA Exemption 4? The OFCCP Notice points contractors to two recent court decisions that should be considered in determining whether information may be withheld pursuant to Exemption 4. In Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019), the Supreme Court determine the term “confidential” in FOIA means what it did at the time of its enactment: “private” or “secret.” Following this, the Department of Justice issued a step-by-step guide for determining whether information is confidential under Exemption 4. Further, in a case involving CIR, a district court determined that Type 2 Consolidated EEO-1 Reports were not protected from disclosure under Exemption 4 – finding that conclusory and verbatim rationale about the data contained in the reports did not support a finding that they were commercial. Center for Investigative Reporting v. U.S. Dep’t of Labor, 424 F. Supp. 3d 771 (N.D. Cal. 2019).  The OFCCP notes this is the only case discussing the commerciality of the EEO-1 Report data. What Happens Next? If you do not submit an objection to the FOIA request, then OFCCP will release the data to CIR as a part of a rolling production after September 19. If you do submit an objection, OFCCP will independently evaluate the objections and make a determination regarding withholding the information under Exemption 4. Both the objector and CIR will receive notice of a determination to withhold data. The Bottom Line If there is information contained in your EEO-1 Reports that you don’t want published or accessible to competitors, act fast to submit objections to OFCCP. Otherwise, you should expect that your report’s data may be provided to a reporter who will make it public. For questions or assistance in evaluating whether you should file an objection to the FOIA request or how to present your objection, please contact your Polsinelli attorney.

In deferring to the Washington Department of Labor and Industries’ (“Department”) interpretation of its own regulation, a Washington Court of Appeals ruled that employee’s’ out-of-town travel time—including travel time to and from the airport, time in the airport, and time in the air—on behalf of their employer was compensable, a far broader interpretation than applied under the federal Fair Labor Standards Act. In Port of Tacoma v. Joel Sacks, Department of Labor & Industry, the Department investigated wage claims filed by four employees who had been sent by their employer, the Port of Tacoma, to be part of a quality inspection team in China to observe the manufacturing process of cranes that were to be purchased by the Port. The Port made all the arrangements for the trips, including air transportation. Consistent with their union’s agreement with the Port, the employees were paid a maximum of eight hours per day, regardless of the actual time spent traveling. In their wage claims, the employees argued they were entitled to payment for all travel time: including travel to and from the airport, all time spent at the airport, and all time spent in flight. The Department agreed and issued a citation to the Port, who in turn challenged the citation. The lower court granted summary judgment in favor of the Port and held that “travel time” did not meet the definition of “hours worked,” and was not compensable. The employees appealed. The Court of Appeals reversed, reaching the opposite conclusion for three reasons: Out-of-town travel is different than the daily commute, which is not compensable “hours worked”; The Court owed deference to the Department’s interpretation of its own regulations, which had found that the out-of-town travel was compensable “hours worked”; and Out-of-town travel being compensable “hours worked” was consistent with the plain language of the state wage laws requiring compensation for work “on duty” and with the liberal construction given to those laws in favor of the worker. Washington employers should revisit their travel-time policies and practices to ensure that non-exempt employees are paid for all out-of-town travel time—even time when the employees are not engaged in work for the company. When arranging for out-of-town travel for employees, employers should pay attention to the amount of time that such travel will entail—and consider flights with shorter layovers, hotels closer to the airport, and other similar considerations. The ruling also makes clear that employers should pay close attention to Department guidance and interpretation. If you have questions regarding this decision, please contact your Polsinelli attorney.

Numerous employment lawyers and articles have addressed whether employers should mandate or strongly encourage employees to get vaccinated when the COVID-19 vaccination is available to them. Fewer have provided reminders to employers regarding the steps and precautions necessary following an employee’s vaccination. First, employees should be strongly reminded that they are not fully vaccinated (and maximally protected) until both of two required vaccine doses are administered. As a result, the CDC’s precautions—including mask wearing, social distancing, and hand washing—must continue to be followed even if a dose of the vaccine has been received.  CDC guidance on proper precautions can be found here. Most importantly, even after employees are fully vaccinated with both injections, they must remember the vaccination is not like a Monopoly “get out of jail free” card. No vaccine is foolproof regardless of the illness it is intended to prevent. COVID-19 vaccinations are no different—they are not 100% effective and it is still not known if and to what extent they prevent transmission of the disease. As a result, employees should continue to act and follow all CDC guidelines as if they have not been vaccinated. We advise that employers provide their employees with these important reminders in writing and obtain agreement from their employees that they will continue to follow all precautions until medical experts’ guidance provides otherwise.

On October 1, 2020, the Kansas City, Missouri City Council unanimously voted to enact the “Creating a Respectful and Open World for Natural Hair” Act (“CROWN Act”).  The CROWN Act addresses discrimination based on natural hair or particular hairstyles traditionally tied to race.  In short, the CROWN ACT sets forth that “hair discrimination targeting hairstyles associated with race is racial discrimination.” The CROWN Act, Ordinance No. 200837, modifies the definition of “Race” to include “traits historically associated with race including, but not limited to, hair texture and protective hairstyles.”  The CROWN Act further defines “protective hairstyles” to include, though not limited to, “such hairstyles as braids, locks, and twists.”  In its preamble, the CROWN Act also identifies afros, making it clear that they are a protected hairstyle as well. While Kansas City may be one of the first cities in the country to pass such an ordinance, it is just one of many jurisdictions passing similar expansions of race discrimination protections — including state laws in California, Virginia, New York, Colorado, Washington, and Maryland. The CROWN Act goes into effect on November 1, 2020.  If you have any questions regarding the CROWN Act or expanded race discrimination protections in other jurisdictions, please contact your Polsinelli attorney.

As the COVID-19 pandemic continues, health care workers on the front-lines continue to risk their own health to provide care for patients suffering from or who may have been exposed to COVID-19.  With growing worries regarding the availability of Personal Protective Equipment (PPE) (e.g., N95 masks, face shields, medical gowns and gloves), health care workers across the country are increasingly speaking out. In doing so, though, some health care employers have run into additional problems from an employment law perspective.  Workers are alleging they have been ordered by their employers not to speak out about insufficient PPE—or even more serious, they have been terminated for speaking to the media about the problem.  With these concerns looming and more medical professionals speaking out, hospitals, doctors’ offices, and the like must take care to not violate workers’ rights or take actions that could be construed as retaliatory against those employees.  Health care workers who are terminated or disciplined for raising concerns about inadequate PPE or COVID-19 exposure may have viable wrongful discharge claims under applicable state laws.  The majority of states have explicitly recognized some version of a common-law claim for wrongful discharge in violation of public policy, created to protect workers from termination based on public policy designed to ensure the health, safety, or welfare of the public.  In fact, some states such as California, Illinois, Massachusetts, Michigan, New York, Texas, Washington, and Wisconsin have statutory provisions specifically prohibiting retaliation against health care workers who take certain steps to report health, safety, and/or patient care concerns. Employers of health care professionals should take the following steps to help reduce or eliminate risk. Reviewing the applicable social media and media policies to ensure they include, among others, simple and clear provisions on: a. Patient privacy and posting of patient images; b. Mutual respect; c.  Using disclaimers such as “The views expressed on this [blog, website, post] are my own and do not reflect the view of my employer”; d.  Professionalism; e.  Not allowing social media activity to interfere with work commitments; f. Encouraging workers to talk with the media through public relations offices; g. Not speaking or posting on behalf of the institution, unless pre-approved. Enforcing social media and other applicable policies consistently and in line with past precedent. Not enforcing policies more harshly against those who speak out regarding COVID-19. Focusing on the violation of the policy, not the content of the employee’s speech, when disciplining an employee for violating social media or media policies. Avoiding negative comments about filing administrative complaints (e.g., OSHA) reporting health and safety concerns. Not discouraging such administrative complaints related to COVID-19 concerns. On the federal level, various laws may also give rise to a potential whistleblower complaint arising from PPE-related comments including, for example, OSHA’s whistleblower provisions.  In addition, government-related health care institutions face additional potential liability due to “free speech” concerns.  Employers should also keep in mind that Section 7 rights under the National Labor Relations Act apply equally to union and non-union employees.  Section 7 prohibits employers from interfering with, restraining, or coercing employees exercising their rights to engage in concerted activity for mutual benefit and to discuss working conditions, including through social media policies.  Health care entities should keep these additional considerations in mind when addressing employee conduct. If you have any questions or need assistance related to employment decisions pertaining to your health care workers, contact your Polsinelli attorney.

On September 24, 2019, the US Department of Labor announced a finalized rule increasing the earnings threshold necessary for employees to qualify as exempt from the Fair Labor Standards Act’s (“FLSA”) minimum wage and overtime pay requirements. It is estimated the new Rule will bring an additional 1.3 million employees below the FLSA’s overtime requirements, making them non-exempt employees. Why the change? Employee earnings, including federal and state minimum wage requirements, have continued to grow since the last time the exemption thresholds were updated—all the way back in 2004. Though some have suggested the DOL should automatically update the salary threshold levels in the future, the DOL has rejected this proposal. But, the DOL has noted it plans to provide more frequent updates to the standards through notice-and-comment rulemaking. What does the Rule do? Raises the “standard salary level” for white-collar employees paid on a salary basis (either weekly or annually) from $455/week to $684/week (or an increase from $23,660/year to $35,568/year for a full-time employee). For “highly-compensated employees,” the annual compensation threshold for exemption is increased from $100,000/year to $107,432/year. Allows greater flexibility in the payment method of the minimum salary requirements, allowing non-discretionary bonuses and incentive payments (including commissions) to satisfy up to 10% of the standard salary level. The Rule does not change the regulatory test for primary duty or the tests for the duties necessary for exempt executive/administrative/professional employees; it does not amend the definition of “salary basis;” does not apply a new compensation standard to doctors, lawyers, teachers or outside sales employees; and makes no change to the computer employee exemption. What should employers do? The effective date for the changes is January 1, 2020.  There are several things employers should consider in determining how best to comply with the new Rule. Employers should determine which and how many employees will be affected by the change—those making between $455 and $684 per week.  An employer should then determine if it makes business sense to increase the salaries of those individuals or to reclassify them as non-exempt making them eligible for overtime pay. For employees who will become non-exempt, employers should consider adjusting employee schedules, especially those which allow for flexible hours and remote working options. Employers should ensure that the timekeeping and payroll systems are updated to reflect any changes in employees’ exempt/non-exempt statuses. Employees transitioned to a non-exempt status should be trained on timekeeping systems and proper timekeeping practices to capture all time worked (including, but not limited to work performed on smart phones, on remote access systems, etc. – or eliminating these employees’ ability to conduct such work away from the office). Employers should consider conducting audits to ensure that current classifications are proper as well as to determine if any other exemptions may apply to employees that otherwise will be brought into the non-exempt category by the new Rule. Of course, employers should always be aware that being in compliance with this Rule and the FLSA in general is just a small part of their overall compliance requirements of applicable wage and hour laws. There are also state and local laws and regulations that employers must comply with that may significantly differ from the FLSA. Employers with questions or concerns should consult competent counsel.