The Employer’s Wage and Hour Advisor

Filings under California’s Private Attorneys General Act (“PAGA”) hit an all-time high in 2023, with 7,780 PAGA notices filed with the California Department of Industrial Relations.  As an attempt to rein in the tidal wave of PAGA litigation, the California legislature and Governor Newsom enacted employer-friendly amendments to PAGA amid the looming threat of a November 2024 ballot initiative that, if approved, would have largely repealed PAGA.

Large multi-state collective actions continue to be filed under the federal Fair Labor Standards Act (“FLSA”). In addition, with the increase of remote work, more and more employers are employing workers outside of the companies’ home states. This has resulted in relatively new questions about the reach of a court’s jurisdiction over out of state employers. For example, if a Michigan employee sues a New York employer for overtime in Michigan, can other employees located outside of Michigan join the lawsuit? Does the Michigan federal district court have personal jurisdiction over out of state employees when the employer is located in New York? The federal Circuit Courts of Appeals are divided on the issue. 

Many Michigan companies rely on commissioned sales representatives to develop business and maintain client relationships. However, few know that Michigan has enacted specific laws to protect sales representatives when commission disputes arise. If not handled properly, such disputes can lead to substantial damages. In 1992, the Michigan Legislature passed the Sales Representative Commission Act (the “Act”), which, among other things, provides for treble damages (i.e., three times the actual amount of unpaid commissions, up to a maximum of $100,000.00) if a court determines a company has improperly withheld commissions. Because of these significant penalties, any business using a commission salesforce in Michigan should be aware of the Act’s requirements.

While courts often interpret Michigan's Elliott-Larsen Civil Rights Act to track Title VII of the federal Civil Rights Act, the ELCRA protects more than just employment.

The ELCRA protects against discrimination in employment, housing, real estate, public service, and places of public accommodation, including restaurants, hotels, event venues, and all other businesses and facilities open to the public.

A growing number of states have passed pay equity laws giving employees new rights to request wage information and openly discuss and disclose their wages with other employees and the public.  Some of these states include California, Colorado, Connecticut, Maryland, Nevada, New York, Rhode Island, and Washington.  Other states and localities have now enacted pay transparency laws requiring employers to proactively disclose pay ranges for positions (e.g., as part of a job posting or as part of internal communications around a promotion).