It’s the week before Christmas, and in our practice group meeting,
We look back and consider the year that’s completing.
The wage-hour nuggets that earn all our favor,
Wond’ring “Is this the last time I’ll be rhyming ‘class waiver’?”
Because the Supreme Court weighed in and said it is OK.
In exchange for employment, you can give class away.
Justice Gorsuch’s words left employers’ hearts smitten:
“[A]rbitration agreements . . . must be enforced as written.”
And for those who may read the decision and grouse,
SCOTUS says, don’t blame us, ask the Senate or House.
About the only bad thing in the case is the name,
And the infinite puns that were Epically lame.
Amazingly, the Supremes were not done with wages,
As they addressed a construction that’s lingered for ages.
When determining whether overtime has accrued,
How should FLSA exemptions have to be construed?
For decades, the knee-jerk response has been “narrow,”
But the Court made no bones, it went straight for the marrow:
“The flawed premise [of a] remedial purpose ‘at all costs,’”
Meant that narrow construction to the side had been tossed.
With dozens of exemptions (in § 213, mainly),
A new command to the courts: construe those things plainly.
Look how they’re written, with no bias impeding,
Because every exemption deserves a fair reading.
From the Judicial Branch, we jump to Article II
And the Wage Hour Division’s annual review.
A year that’s been filled with some policy flips
In the combat zone that lies between wages and tips.
A regulatory proposal that encouraged more sharing
With back of house workers, but was viewed as uncaring.
Was withdrawn when a law was passed in its stead
Turning old DOL guidance on top of its head.
And “what’s a tipped occupation?”; they got sued on that
So they reissued a letter and resolved the spat.
Now if there are questions of when tips are proper,
You can just check the work in the O*Net task hopper.
But if the overtime reg is what makes your eyes glisten,
From D.C. we head out to the West Coast
For the head-shaking section of this annual roast.
Your flat-rate bonus calculations, just tear them to shreds;
California proclaimed “We are not like the feds.”
The federal regular rate is mathematical fact.
Divide the bonus by hours, the answer, exact.
But a single pay system, California’s impaired;
Their divisor is 40; and next year, it’s pi squared.
Some workers on gigs (and probably some in ceramics)
Learned that they’d become employees because of Dynamex.
The single conclusion from that ABC test?
It looks like they no longer want contractors out West.
But one big decision gave employers there hope.
Criminalized arbitration? Gov. Brown, he said “Nope.”
Now back to those places where “pro-employer” ain’t fiction
To all our blog readers across the whole nation:
Happy New Year to you!!! (and think about arbitration).