United States: US Employment Litigation Round-Up For June 2019

New York Strengthens Protections for Employees and Job Applicants to Combat Pay Inequality

Over the past several years, state legislatures have been increasingly active in passing a variety of worker protection laws to combat gender discrimination and harassment in the workplace and address pay inequality. We covered many of these developments in the May 2019, April 2019, February 2019, August 2018 and April 2018 Round-Ups. Continuing the trend, New York recently enacted new legislation to combat pay inequality in the workplace—Senate Bills 5248A and S6549, which Governor Andrew Cuomo signed into law on July 10, 2019.

Pay Equity:

Senate Bill 5248A, which takes effect on October 8, 2019, expands New York's equal pay act, which currently applies only to gender, to any "protected class." Specifically, the law prohibits "differential[s] in rate of pay because of protected class status"—i.e., age, race, creed, color, national original, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim status.

The new law also expands the manner in which pay disparity is to be assessed by including in the analysis employees who perform "substantially similar work." As a result, under the amended law, employees within one or more "protected classes" may not be paid wages at a rate less than employees who do not have status within the same protected class in the same establishment for:

  1. equal work on a job that requires equal skill, effort and responsibility and that is performed under similar working conditions; or
  2. substantially similar work "when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions."  

The law does not amend the portion of the existing law providing that a pay differential is permitted if it is based on a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or a bona fide factor other than status within one or more protected classes that is job-related and consistent with business necessity (such as education, training or experience). Employees can overcome this exception by demonstrating that:

  1. the employment practice causes a disparate impact based on membership in a protected class;
  2. an alternative employment practice exists that would serve the same business purpose and would not produce such a differential; and
  3. the employer refused to adopt that alternative practice.

Salary History Inquiries:

Similarly, Senate Bill S6549, which takes effect on January 6, 2020, seeks to limit employer salary history inquiries. Specifically, it prohibits employers from:

  1. seeking, requesting or requiring employees or applicants to provide information regarding their wage or salary histories as a condition of being interviewed, considered for an offer of employment, or for actual employment or promotion;
  2. making employment or compensation decisions based on salary history; or
  3. refusing to interview, hire or promote or otherwise retaliating against applicants or employees based on prior wage or salary history or the refusal to provide that information.

The new law does not prohibit applicants and employees from voluntarily disclosing or verifying their wage or salary history, including for purposes of negotiating their wages or salary, provided that they are not prompted to do so by the employer. Notably, employers are permitted to confirm wage or salary history information provided by an applicant or employee if the applicant or employee provided that information in response to an offer of employment in order to negotiate a higher wage or salary.

Ninth Circuit Revives Employee "Off the Clock" Bag Check Lawsuit

Decision: In Rodriguez v. Nike Retail Services, Inc., the United States Court of Appeals for the Ninth Circuit held that the federal de minimis doctrine—which precludes Fair Labor Standards Act ("FLSA") claims for compensation of "minor" or "irregular" work time—does not apply to California wage and hour claims. The plaintiff in Rodriguez was a former retail store employee who was required to submit to "exit inspections" every day after he had punched out on the store's time clock. The plaintiff filed a putative class action against his former employer alleging that the employer did not compensate him or other employees for "off the clock" time associated with these inspections. The parties disagreed as to precisely how long the exit inspections typically lasted but agreed that each inspection took less than a few minutes. The employer argued that exit inspections lasting no more than a few minutes were "minor" and administratively difficult to record and that this time was therefore de minimis and did not need to be compensated. The district court agreed and dismissed the case.

On appeal, the Ninth Circuit reversed the trial court's dismissal. Citing the California Supreme Court's recent decision holding that California's wage and hour statutes and regulations did not adopt the FLSA's de minimis doctrine, the Ninth Circuit held that the federal de minimis standard did not apply to wage and hour claims under the California Labor Code. Although the California Supreme Court had left open the possibility that California wage and hour claims might be barred "where compensable time is so minute or irregular that it is unreasonable to expect the time to be recorded," the Ninth Circuit found that, in this case, the defendant's inspection of employees for "measurable amounts of time" every time they exited the workplace did not meet that potential exclusion. The court also rejected the bright-line rule proposed by the defendant that work should last at least one minute or more to be compensable.

Impact: Rodriguez reaffirms that California law requires employees to be compensated for all time they are subject to the employer's control, even if they are "off the clock"—and even if that "off the clock" work lasts less than a minute. Although Rodriguez suggests that there may be situations where work time is "so minute or irregular" that compensation is not recoverable, Rodriguez gives little guidance about when those situations would arise. The inference from the decision is that work-related activities that occur daily may not qualify for the exception. Accordingly, California employers should ensure that their clock-in and clock-out policies—including the location of time clocks—record and compensate employees for all work activities that occur on a regular basis, regardless of how brief those activities might be.

Eighth Circuit Holds That Judicial Approval of Attorneys' Fee Awards Is Not Required in FLSA Wage Claim Settlements

Decision: In Barbee v. Big River Steel, LLC, the United States Court of Appeals for the Eighth Circuit held that the Fair Labor Standards Act ("FLSA") does not require judicial review of an attorneys' fees settlement reached in connection with an employee's FLSA wage claim. In Barbee, the plaintiff filed a putative collective action under the FLSA for unpaid overtime. After the parties notified the district court that they had settled the dispute, the court ordered them to submit the settlement for court approval, including the proposed agreement and any attorney billing records. The district court ultimately approved the substantive terms of the settlement with respect to the wage claim but unilaterally reduced the attorneys' fees amount. On appeal, the Eighth Circuit vacated the fee reduction, holding that the district court lacked authority under the FLSA to review the parties' attorneys' fees settlement. The court held that "any authority for judicial approval of FLSA settlements in 29 U.S.C. § 216(b) does not extend to review of settled attorney fees." The court explained that the interpretation of Section 216(b) is consistent with the public policy behind requiring court approval of FLSA wage claim settlements because "[w]hen the parties negotiate the reasonable fee amount separately and without regard to the plaintiff's FLSA claim, the amount the employer pays the employees' counsel has no bearing on whether the employer has adequately paid its employees in settlement." The court noted, however, that courts do retain the authority to ensure that the attorneys' fees in an FLSA settlement were in fact negotiated separately and without regard to the plaintiff's FLSA claim and that there was no conflict of interest between the attorney and his or her client.

Impact:   The Eighth Circuit's decision regarding attorneys' fees is instructive in how to structure FLSA settlements, as parties settling attorneys' fees should ensure that they are able to demonstrate that the attorneys' fees were negotiated separately, without regard to the settlement amount for the plaintiff's FLSA wage claim.  While the Eighth Circuit's decision is helpful to parties that wish to settle FLSA claims, there remains a circuit split as to whether the FLSA requires judicial approval of all settlements of wage claims. While the Fifth Circuit has held that judicial approval is not required, several other circuit courts, including the Second and Eleventh Circuits, have held that judicial approval is required.

NLRB Allows Employers to Prohibit Nonemployee Union Solicitation in Public Areas

Decision: In UPMC and SEIU, 368 NLRB No. 2(June 14, 2019), the National Labor Relations Board ("NLRB") recently issued a decision finding that "an employer does not have a duty to allow the use of its facility by nonemployees for [union] promotional or organizational activity." The Board found that the fact that a cafeteria located on an employer's private property is open to the public does not mean that an employer must allow nonemployees access to that property for any purpose, provided the employer does not discriminate between nonemployee union representatives and other nonemployees.

In so ruling, the NLRB overruled previous Board law that had created a "public space" rule requiring employers to permit nonemployee union organizers to engage in promotional or organizational activities in cafeterias and restaurants that are open to the public if the organizers use the facility in a manner consistent with its intended use and are not disruptive. The NLRB explained that the National Labor Relations Act "requires only that the employer refrain from interference, discrimination, restraint, or coercion in the employees' exercise of their own rights. It does not require that the employer permit the use of its facility for organization when other means are readily available." The Board further decided to apply the standard announced in its decision retroactively to all pending cases.

Impact: Under the NLRB's decision, employers may enact blanket no-solicitation/no-distribution on company grounds policies or practices if these policies or practices are applicable to and enforced with respect to all third parties. In enacting these policies or practices, employers should ensure they are treating all third-party promotional or solicitation activities in the same manner.

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2019. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions