Our colleague Kevin Sullivan at Epstein Becker Green has a post on the Wage and Hour Defense Blog that will be of interest to our readers in the hospitality industry: “California Court of Appeal Concludes That Certain Types of On-Call Scheduling Triggers Requirement to Pay Wages.”

On February 4, 2019, a divided panel of the California Court of Appeal issued their majority and dissenting opinion in Ward v. Tilly’s, Inc. It appears to be a precedent-setting decision in California, holding that an employee scheduled for an on-call shift may be entitled to certain wages for that shift despite never physically reporting to work.

Each of California’s Industrial Welfare Commission (“IWC”) wage orders requires employers to pay employees “reporting time pay” for each workday “an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work.” …

Read the full post here.

Massachusetts is one of many states which have adopted legislation, commonly known as a “ban the box” law, prohibiting public and private employers from requesting criminal record information in a prospective employee’s “initial written employment application” and limiting the type and scope of questions an employer may ask a candidate following receipt of an “initial written employment application.” Yesterday, Massachusetts Attorney General Maura Healey announced that her office has settled with four businesses and issued warning letters to 17 others for violations of Massachusetts’s ban the box law, marking the first enforcement efforts by the Massachusetts Attorney General’s Office.

According to the AG’s press release, it conducted an investigation into employer compliance with the state’s ban the box law by sampling an undisclosed number of Boston and Cambridge employers. The initial employment applications of 21 of those businesses were found to contain one or more impermissible questions about the applicant’s criminal record, such as whether the applicant had been convicted of violating the law, whether he or she been convicted of a crime or offense other than a minor traffic violation, and whether he or she had ever been convicted of a felony. The four employers that reached agreements with the AG’s Office are Edible Arrangements, Five Guys, L’Occitane, and The Walking Company. The first three were fined $5,000 each (The Walking Company appears to have been given a pass due to its bankruptcy status) and each was required to take steps to comply with the law. The 17 business which received a warning to immediately comply with the law are: Brattle Book Shop, Kingston Grille and Bar, Salvatore’s, Sidebar, Stoddard’s Food & Ale, The Chicken and Rice Guys (two locations), The Oceanaire Seafood Room, Tous Les Jours, Viga Italian Eatery and Catering, Love Culture, and Frette, all in Boston, as well The Middle East Restaurant, Mainely Burgers, Mexicali Burrito Co., Café ArtScience, Meadhall, and Grafton Street Pub & Grill in Cambridge.

While the press release does not indicate whether the AG’s Office intends to expand its probe, continued enforcement seems likely in light of AG Healey’s remarks that “Jobs are the pathway to economic security and building a better life. But unfortunately, many of our residents with criminal records face barriers to securing employment. These actions are an effort to give all job applicants a fair chance.”

Enforcement of ban the box legislation is not limited to regulators in Massachusetts. Well over a year ago, the New York State Attorney General announced settlements with two major national retailers – Big Lots Stores and Marshalls – for violation of New York’s ban the box law by inquiring about the criminal history of job applications on initial employment applications at their Buffalo stores. The New York AG imposed fines that were substantially greater than those set by the Massachusetts AG: Big Lots agreed to pay a monetary penalty of $100,000, and Marshalls a penalty of $95,000. Both were required to adopt new policies and training, and report their remediation to the New York AG.

These actions highlight that businesses operating in jurisdictions with ban the box laws must ensure that their pre-hiring practices comply with such laws or risk regulatory fines, not to mention public disrepute and potential civil liability.