Hunton Employment & Labor Perspectives

On April 29, 2024, in compliance with President Biden’s October 2023 Executive Order addressing artificial intelligence, the Department of Labor’s Wage & Hour Division (WHD) issued guidance regarding the potential risks posed by employers using AI tools to monitor or augment worker productivity to violate the Fair Labor Standards Act (FLSA).

On Tuesday, April 23, 2024, the U.S. Department of Labor (“DOL”) published the final version of a rule originally proposed in September 2023, raising the salary threshold for the Fair Labor Standards Act’s (“FLSA”) exemption for executive, administrative, professional, and computer employees and the total annual compensation level for the highly compensated employee exemption. The final rule also provides for periodic, automatic increases going forward. So, what should employers know about the final rule, and how can they stay compliant with this shifting landscape?

On March 6, 2024, President Biden issued an Executive Order designed to increase participation in the U.S. Department of Labor’s Registered Apprenticeship Program (“the Program”). The purpose of the Program is to connect job seekers looking to learn new skills with employers looking for qualified workers. 

The U.S. Department of Labor's (DOL) recently published a final rule on the definition of “independent contractor” under the Fair Labor Standards Act (FLSA) on January 9, 2024. This rule introduces a six-factor "economic realities" test, replacing the 2021 rule and aiming to bring clarity to the classification of workers as independent contractors or employees.

On December 14, 2023, the U.S. Department of Labor (DOL) published a final rule that restricts federal contractors in who they can employ when carrying out federal service contracts under the Service Contract Act (SCA).  The final rule implements President Biden’s Executive Order signed on November 18, 2021, and goes into effect on February 12, 2024.  The DOL estimates that this rule will affect 1.4 million workers on service contracts.

On October 30, 2023, President Biden issued a wide-ranging Executive Order to address the development of artificial intelligence (“AI”) in the U.S.  Entitled the Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, the Order seeks to address both the “myriad benefits” as well as what it calls the “substantial risks” that AI poses to the country. It caps off a busy year for the Executive Branch in the AI space. In February the Equal Employment Opportunity Commission published its Strategic Enforcement Plan highlighting AI ...

In April 2021, President Biden issued Executive Order 14026, which increased the minimum wage for federal contractors to $15.00 per hour for contracts under the Service Contract Act and Davis-Bacon Act. The U.S. Department of Labor subsequently issued a final rule implementing the Executive Order, and the new $15.00 minimum wage for federal contractors took effect in January 2022, with annual increases thereafter.

On May 1, 2023, the U.S. Department of Labor (“DOL”) announced that its Occupational Safety and Health Administration (“OSHA”) launched a new National Emphasis Program (“NEP”) to prevent or otherwise reduce workplace falls (the “Fall NEP”).  In its press release, OSHA claims that workplace falls are the “leading cause of fatal workplace injuries and the violation the agency cites most frequently in construction industry inspections.”  While the Fall NEP took effect on May 1, 2023, there is a 90-day outreach period, meaning that programmed inspections will first begin on or around July 30, 2023.  The Fall NEP has no expiration date, but it will be reviewed within six months of issuance to determine its effectiveness and whether it will be continued.

On November 22, 2022, the U.S. Department of Labor (“DOL”) announced a final rule (the “2022 Final Rule”) that allows plan fiduciaries to consider climate change and other environmental, social, and governance (“ESG”) factors when selecting retirement investments and exercising shareholder rights, such as proxy voting, for ERISA-governed plans.[1]

The Department of Labor’s Wage and Hour Division is expected to propose new rules on independent contractor classification and overtime entitlement requirements in the coming weeks.  The proposals would alter the qualifications for certain employees to receive overtime payments under the Fair Labor Standards Act when they work in excess of 40 hours in one week.

On September 15, 2022, the United States Department of Labor (“DOL”) announced an update to the Occupational Health and Safety Administration’s (“OSHA”) Severe Violator Enforcement Program (“SVEP”).

Last Thursday, the U.S. Department of Labor (“DOL”) published in the Federal Register its newly-proposed rule regarding independent contractor vs. employee classification under the Fair Labor Standards Act (“FLSA” or the “Act”).  Businesses have anticipated the release of this proposed rule from the Biden administration’s DOL since the DOL withdrew a more employer-friendly, Trump-era independent contractor rule in May 2021 that had not yet gone into effect.

The Department of Labor Wage and Hour Division and the National Labor Relations Board released a Memo of Understanding announcing that the two agencies will be collaborating “to strengthen the agencies’ partnership through greater coordination in information sharing, joint investigations and enforcement activity, training, education, and outreach.” The MOU took effect upon both agencies’ approval in early December and will remain in effect for five years.

On November 10, 2021, three federal agencies tasked with enforcing workplace laws announced a joint initiative to combat retaliation in the workplace.  As a refresher, the EEOC protects a worker’s right under Title VII and other non-discrimination laws to enjoy a workplace free from harassment and discrimination.  The DOL enforces federal labor standards per the Fair Labor Standards Act, as well as health and safety regulations through OSHA.  The NLRB generally protects a worker’s right to organize to improve working conditions, among other rights guaranteed by National Labor Relations Act.

In December of 2020, the DOL under President Trump issued a final rule dispensing with the longstanding “80/20” tip credit rule—whereby an employer was only required to pay a tipped-employee the full minimum wage rate for non-tip producing work if the employee spent in excess of 20% of their workweek performing such work. In early 2021, the DOL under President Biden delayed the effective date of the Trump-era rule (initially until April 30, 2021, then again until December 31, 2021).

The Office of Federal Contract Compliance Programs (“OFCCP”), an agency within the Department of Labor, has recently announced two significant changes that will impact covered contractors and subcontractors in the coming months. 

On August 13, 2021, the U.S. Department of Labor’s (“DOL”) Occupational Safety and Health Administration (“OSHA”) updated its guidance for employers in an effort to further protect workers from SARS-CoV-2, the virus that causes COVID-19 (“COVID”).  This update (the “Guidance”) reflects recent COVID developments, including the increased spread of the Delta variant and the July 27, 2021 Centers for Disease Control and Prevention’s (“CDC”) updated guidance, and is intended to help employers protect workers who are:  unvaccinated or partially vaccinated, otherwise at-risk, and/or fully vaccinated but located in areas of substantial or high community transmission.

On July 29, 2021, the U.S. Department of Labor filed a final rule rescinding the Trump-era “Joint Employer Status Under the Fair Labor Standards Act” rule (29 CFR part 791), which went into effect on March 16, 2020.

The legal landscape for defining “employers,” “employees,” and “independent contractors” can be quite dynamic, as this past year has illustrated. In January 2021, the Department of Labor issued an employer-friendly independent contractor rule that would have departed from the agency’s typical balancing test, but it formally withdrew this rule in early May with the change in administration. The DOL’s independent contractor rule is intended to provide guidance to employers when determining whether a worker is an employee or an independent contractor. For employers, this is an important distinction because the FLSA’s overtime and minimum wage protections apply only to employees, not independent contractors. Because courts and employers sometimes struggle to find this line using the economic realities test and its iterations, the Trump-era independent contractor rule aimed to provide a clearer definition of “employee,” as opposed to “contractor.” The DOL has not yet proposed a new independent contractor test, but employers should be mindful that the Biden administration may potentially announce a new rule on this topic.

On March 22, 2021, Marty Walsh, the two-term Boston mayor, was confirmed as the Labor Secretary by the United States Senate in a 68-29 vote.  He becomes the first union leader to run the Department of Labor (the “DOL”) in over four decades.

Workplace safety will be one area that we can expect to undergo significant change under Walsh.  Recently, the Occupational Safety and Health Administration (“OSHA”) released a new National Emphasis Program (“NEP”) that permits OSHA to conduct programmed inspections of the risk of worker exposure to COVID-19.  The employers covered by the NEP are those OSHA considers as those where employees have a higher likelihood of close-contact exposure.  The NEP includes language regarding employer outreach and compliance assistance; but, it is clear the primary emphasis will be on inspection targeting.

In a recent post, we wrote about a final rule issued by the Department of Labor (DOL) during the last days of the Trump administration addressing the appropriate test for classifying independent contractors under the FLSA. In the post, we noted that the future of the rule was in question because it was not set to go into effect until March 8, 2021. This delayed implementation provided an opportunity for the incoming Biden administration to freeze or withdraw the rule.

In the last weeks of the Trump Administration, the Department of Labor (DOL) published its final rule for determining whether an individual is an employee or independent contractor under the Fair Labor Standards Act (FLSA). The distinction between an employee and independent contractor is of critical importance because independent contractors are not entitled to the benefits of the FLSA, namely minimum wage and overtime.

The U.S. Department of Labor (“DOL”) recently released a proposed rule seeking to clarify independent contractor vs. employee status under the Fair Labor Standards Act (“FLSA”).   The proposed rule seeks to simplify the “economic realities” test currently applied by federal courts in various forms.  “The Department’s proposal aims to bring clarity and consistency to the determination of who’s an independent contractor under the Fair Labor Standards Act,” Secretary of Labor Eugene Scalia explained in the DOL's news release.  “Once finalized, it will make it easier to identify employees covered by the Act, while respecting the decision other workers make to pursue the freedom and entrepreneurialism associated with being an independent contractor.”

Last month, the United States District Court for the Southern District of New York invalidated portions of the Department of Labor’s Final Rule on joint employment, holding that parts of the Final Rule conflicted with the statutory language of the FLSA and chiding the DOL for failing to adequately explain why the Final Rule departed from the DOL’s own prior interpretations.

Last week, the Department of Labor (“DOL”) provided clarity regarding issues of remote work and remote learning.

First, the DOL issued guidance regarding employers’ obligation to track the work hours of employees who are working remotely due to COVID-19 or due to an already existing telework or remote work arrangement.

The Department of Labor has released a new set of “Questions and Answers” for employers under the Families First Coronavirus Response Act (“FFCRA”).  The guidance supplements the temporary rule issued by DOL in April; final regulations are still forthcoming.

FFCRA provides (1) paid sick leave and (2) paid family medical leave under certain circumstances created by COVID-19.  We previously posted about these forms of leave in March, April, and June.  See our entries here, here, here, here, and here.

As states have worked to process the millions of unemployment claims arising out of the pandemic, many questions have arisen about who is eligible for the federal Pandemic Unemployment Assistance (PUA) benefit under the CARES Act.  The Department of Labor’s most recent guidance attempts to answer many of these questions posed by the states and may be helpful to employers considering furloughs or layoffs.

As state unemployment agencies are inundated with new claims, the US DOL recently provided instructions to states for implementing the Pandemic Emergency Unemployment Compensation Program (PEUC) of the CARES Act in its April 10, 2020 guidance.  PEUC allows states to enter into agreements with the Secretary of Labor to pay up to 13 weeks of unemployment benefits to eligible individuals, through December 31, 2020.  We highlight the important takeaways below.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act was signed into law on March 27, 2020 as a federal response to the economic crisis caused by the Coronavirus. As we previously reported, the Act greatly expands unemployment benefits for workers affected by the COVID-19 pandemic, but many questions remained about how the Act would be applied.  The DOL recently issued guidance answering some of these questions.

Unemployment insurance is a joint federal-state program, administered separately by each state following guidelines established by federal law. On March 12, 2020, the Department of Labor (“DOL”) issued advisory guidance for state workforce agencies, suggesting ways in which the states might relax program requirements and expand benefit eligibility in light of the COVID-19 pandemic.

As reported on the Business Immigration Insights blog, employers, already dealing with a chaos of urgent-action items caused by COVID-19, must not overlook the stringent posting requirements under US Department of Labor (DOL) regulations for employees in H‑1B, H-1B1, and E-3 status, and for all employees, regardless of status, who are being sponsored for green cards through labor certification (“PERM”).

Read more here.

The Department of Labor issued two opinion letters on Tuesday in response to specific inquiries that may nonetheless provide some clarity for employers in general.

The first letter was in response to an inquiry from an employer that offers its employees a non-discretionary lump sum bonus of $3,000 (in addition to their regular hourly rate) for completing a 10-week training program.  During the training program, the employees may work more than 40 hours in a given week and the employer requested an opinion from the DOL on the proper method for calculating overtime pay.  In response, the DOL stated that the $3,000 bonus must be included in the regular rate of pay (for purposes of calculating overtime) “as it is an inducement for employees to complete the ten-week training period.”  The DOL then explained that the bonus should be divided into ten $300 increments to be added to the employees’ pay for each week of the training program for purpose of making the overtime calculation.

Earlier today, the United States Department of Labor announced a long-awaited final rule to take effect on January 1, 2020 updating the earnings threshold to $35,568 necessary for employees to qualify for the Fair Labor Standards Act’s (FLSA) “white collar” exemptions.   The DOL estimates that 1.2 million additional workers will be entitled to minimum wage and overtime pay as a result of this increase in the salary basis.

In a case of first impression, the Third Circuit rejected the view of the United States Department of Labor, ruling that incentive payments from third parties are not necessarily included in the calculation of an employee’s overtime rate.

In Secretary United States Department of Labor v. Bristol Excavating, Inc., No. 17-3663, 2019 WL 3926937 (3d Cir. Aug. 20, 2019) (“Bristol”), the Court of Appeals overturned a District Court’s order holding that all incentive payments made by third parties must be included in an employee’s overtime rate under the Federal Labor Standards Act (“FLSA”). The unanimous Third Circuit panel held that the understanding of the employer and employee determines whether third-party payments should be included in the overtime rate.

The Department of Labor earlier this month proposed employer-friendly amendments to its rules regarding joint employer liability under the Fair Labor Standards Act.

In its Notice of Proposed Rulemaking, the DOL proposed the adoption of a four-factor test to assess joint employer status under the FLSA.  The test would consider an employer’s actual exercise of significant control over the terms and conditions of an employee’s work, rather than attenuated control or contractually reserved control that goes unexercised.

The U.S. Department of Labor on Thursday issued its new proposal to amend the salary threshold for employees to qualify for the Fair Labor Standards Act’s white-collar exemptions from overtime pay requirements to $35,308 per year ($679 per week).

The much-anticipated proposed rule would raise the minimum annual salary requirement for the white-collar exemption to the Fair Labor Standards Act from $23,600, a level that has been in place since 2004.  The DOL estimates that the rule change will make just more than one million new employees eligible to earn overtime, assuming that employers do not increase employees’ salary levels to meet or exceed the new level.

We recently highlighted DOL opinion letter 2018-27, which rescinded the 80/20 rule and was a welcome change for employers in the restaurant industry.  However, less than two months after the DOL’s policy change, the U.S. District Court for the Western District of Missouri rejected the DOL’s new guidance, claiming it is “unpersuasive and unworthy” of deference.

As a refresher, the 80/20 rule requires businesses to pay tipped workers at least minimum wage (with no tip credit) for non-tip generating tasks when these tasks take up more than 20% of the tipped workers’ time.

The Federal government has entered its 12^th day of partial shutdown, making it the fourth longest in American history to date.   But, not all government departments are affected, and the Department of Labor is one that is not.  The DOL is already fully funded for 2019, so the current stalemate between Congress and the President does not affect its resources.

The Department of Labor (“DOL”) recently published an Opinion Letter (FLSA-2018-27) reissuing its January 16, 2009 guidance (Opinion Letter FLSA-2009-23) and reversing its Obama-era position on the 20% tip credit rule.  This opinion letter marks another major shift in DOL’s policy and presents a welcome change for employers in the restaurant industry.

On July 18, the Department of Labor’s (DOL) Office of Labor-Management Standards issued a final rule rescinding the so-called “persuader rule,” a controversial Obama-era regulation requiring employers to disclose advice received regarding opposition to union efforts.

Under a new DOL pilot program, employers can self-report wage violations and potentially avoid costly litigation.

Last week, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) launched a six-month pilot program to resolve FLSA violations.  Under the Payroll Audit Independent Determination (PAID) program, employers may self-report potential overtime or minimum wage violations to the WHD, which will then resolve the matter by supervising payments to employees if the employees accept the settlement.  Importantly, the WHD will not impose penalties or liquidated damages on employers that participate in the program and proactively work with the WHD to resolve the compensation errors.  Further, if an employee accepts a supervised settlement through PAID, s/he waives his or her right to file an action to recover damages and fees for the violations and time period identified by the employer.  To participate in the PAID program, an employer must identify: (1) the wage violation(s); (2) the impacted employee(s); (3) the time period(s) in which the violation(s) occurred; and (4) the amount of back wages owed to the impacted employee(s).  However, employers may not participate if they are in litigation or under investigation by the WHD for the practices at issue, or to repeatedly resolve the same potential violations.

On Friday, January 5, 2018, the U.S. Department of Labor (“DOL”) posted a brief statement and updated its Fact Sheet on Internship Programs Under the Fair Labor Standards Act to clarify that going forward, it will use the “primary beneficiary” seven factor test for distinguishing bona fide interns from employees under the FLSA.  The DOL’s approach is consistent with the test adopted by appellate courts such as the Second and Ninth Circuits.

Earlier this month, the U.S. Department of Labor’s Wage and Hour Division issued a Notice of Proposed Rulemaking (“NPRM”) seeking to repeal a 2011 rule that significantly impacted the compensation of hospitality workers.  Specifically, the NPRM proposes to allow hospitality employers to control the distribution of the tips they pool assuming their employees are paid the full minimum wage.  By way of background, the FLSA requires employers to pay employees a minimum wage (currently $7.25 per hour) plus overtime for all hours worked over 40 in a single workweek.  Employees who “customarily and regularly receive tips” must still receive the minimum wage, but employers may elect to take a “tip credit” by counting up to $5.12 per hour of those employees’ tips toward the minimum wage, meaning employers may pay a reduced wage of $2.13 to tipped employees.  Historically, employers that take the tip credit have been prohibited from sharing money from a tip-pooling system to employees who do not traditionally receive direct tips (cooks, dish washers, etc.).  In 2011, the DOL extended the tip-pooling prohibition to apply to employers even if they do not take the tip credit and pay their employees the full federal minimum wage.

On August 31, 2017, a federal district court judge in Texas struck down the Department of Labor’s Obama-era controversial 2016 rule that raised the minimum salary threshold required to qualify for the Fair Labor Standards Act’s “white collar” exemption. Under the proposed regulations, the minimum salary threshold was raised to just over $47,000 per year, and increased the overtime eligibility threshold for highly compensated workers from $100,000 to about $134,000.

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The U.S. Department of Labor continues to work towards dismantling the Obama administration’s overtime rule, saying that it intends to revise the controversial rule to lower the salary threshold under the Fair Labor Standards Act’s white-collar exemptions. The Obama administration’s rule sought to more than double the current salary requirement of $23,660 a year for white-collar exemptions. Though the rule was estimated to make 4 million additional workers eligible for overtime pay, it was also expected to cause employers significant financial and regulatory burdens.

On June 12, 2017, the Office of Labor Management Standards of the Department of Labor (DOL) published a Notice of Proposed Rulemaking that proposes to rescind the controversial “persuader rule” implemented by the DOL under the Obama administration. This rule sought to require disclosure of advice to employers from consultants and attorneys who engage in activities designed to persuade employees not to unionize. This announcement is on the heels of the DOL’s June 7, 2017, press release withdrawing two administrative interpretations issued by the DOL under the Obama administration concerning misclassification of independent contractors and joint employment, as discussed in a previous post. The recent flurry of activity by the DOL indicates that the Trump administration is following through with its promise to loosen many of the onerous restrictions placed on employers by the DOL in the Obama-era.

With an eye towards “increasingly unaffordable” higher education, President Trump signed an Executive Order on June 15, 2017, seeking to “provide more affordable pathways to secure, high paying jobs by promoting apprenticeships and effective workforce development programs, while easing the regulatory burden on such programs and reducing or eliminating taxpayer support for ineffective workforce development programs.” The Executive Order directs the Department of Labor (“DOL”) to propose regulations that “promote the development of apprenticeship programs by third parties,” including trade and industry groups, companies, non-profit organizations, unions, and joint labor-management organizations. The term “apprenticeship” means “an arrangement that includes a paid-work component and an educational or instructional component, wherein an individual obtains workplace-relevant knowledge and skills.”  The Executive Order, in effect, seeks to expand the authority of employers and other third parties to design their own apprenticeship programs and tasks the DOL with implementing or rejecting and assessing such programs on an expedited basis.

One of the most controversial regulatory actions from the US Department of Labor during the Obama administration was the DOL’s regulation significantly increasing the salary level under the Fair Labor Standards Act’s white-collar exemptions.  The regulation sought to more than double the current salary requirement of $23,660 per year, and it included an automatic updating requirement that would have accelerated future salary level increases at a rate well above the rate of inflation.

In a press release issued this morning, the Department of Labor has announced that it is withdrawing two administrative interpretations issued by the Department of Labor under the Obama administration in 2015 and 2016 relating to misclassification of independent contractors and joint employment. These two administrative interpretations sought to expand the definition of employee, thereby increasing the possibility of misclassification cases, and, as some argued, expanding the concept of joint employer under the Fair Labor Standards Act.  While this is a welcomed ...

On May 23, 2017, the Department of Labor released its budget proposal for fiscal year 2018 (FY 2018).  The budget contains several cost-cutting measures that reflect the new priorities of the Trump administration.

A notable aspect of the proposed budget is a request to merge the EEOC and OFCCP.  The  proposal aims for “full integration” of the two agencies by the end of FY 2018.  To begin that transition, the proposal suggests sizable drops in the OFCCP’s current funding and staffing.  The OFCCP’s budget is proposed to drop from $105,275,000 to $88,000,000 (a reduction of $17.3 million).  The headcount is proposed to drop nearly 25%, from 571 full-time equivalent (FTE) employees to 440.

On November 22, a federal judge in the Eastern District of Texas preliminarily enjoined the Department of Labor’s final overtime rule, which would have expanded overtime eligibility to executive, administrative, and professional employees making less than  $47,476 per year, who were previously exempt from the Fair Labor Standards Act’s requirements under its white collar exemption.  The final rule was scheduled to go into effect on December 1, 2016.

On November 16, 2016, Judge Amos L. Mazzant, heard more than three hours of oral argument from a group of 21 States (“State Plaintiffs”) challenging the Department of Labor’s new overtime rule. Following the hearing, the motion for a preliminary injunction of the rule was taken under advisement and a ruling is forthcoming on Tuesday, November 22,2016. Judge Mazzant’s pointed criticism of the rule during argument suggests employers may have reason to be optimistic.

Yesterday, a federal court issued a preliminary injunction temporarily preventing  the DOL from implementing and enforcing its recent Persuader Rule pertaining to outside consultants’ (including lawyers) reporting obligations in the labor relations context.  You can see our prior blogs on this topic here.  The controversial rule was slated to apply to agreements or arrangements and payments made after July 1, 2016, but now is in limbo.  We will keep you posted as new developments occur.  A copy of the Court’s order can be found here

Roland Juarez will present a webinar on “Final, New DOL Overtime Rule: Strategies to Mitigate Impact of 100% Increase in White-Collar Exemption” on June 22, 2016.

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The United States Department of Labor (the “DOL”) has announced a Notice of Proposed Rulemaking (“NPRM”) to implement Executive Order 13706, which requires federal government contractors to provide employees with up to 7 days of paid sick leave annually. As a result, the DOL estimates that employers will be compelled to provide additional paid leave to 828,000 employees, including 437,000 employees who do not currently receive any paid sick leave.

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Under the Fair Labor Standards Act (FLSA), employers who use a tip credit to satisfy their minimum wage obligations for tipped employees must follow certain rules related to those tips.  One of those rules relates to  the use of tip pools – i.e., pooling of tips received by multiple tipped employees and then dividing the total among the pool participants based on a specified formula.  Under Section 3(m) of the FLSA, employers who rely on the tip credit and who require their tipped employees to contribute their tips to a tip-pooling arrangement must ensure that the only employees who participate in the pool are those that “customarily and regularly” receive tips.  This typically means that managers, hostesses, cooks, dishwashers, and other non-tipped employees cannot participate in the tip pool if the employer wants to rely on the FLSA’s tip credit.

The United States Supreme Court has denied a restaurant manager’s petition seeking review of whether parties may stipulate to the dismissal with prejudice of a lawsuit alleging violations of the Fair Labor Standards Act (“FLSA”), or whether judicial or Department of Labor (“DOL”) approval is a prerequisite to such a dismissal, as the Second Circuit held in his case, Cheeks v. Freeport Pancake House, Inc.  Having declined the petition for writ of certiorari, FLSA lawsuits will remain more difficult to resolve for employers in New York, Connecticut, and Vermont.

On January 20, 2016, the administrator of the Department of Labor’s Wage and Hour Division (WHD), David Weil, issued an “Administrator’s Interpretation” (AI) regarding the agency’s interpretation of joint employment under the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). The new AI purports to clarify the WHD’s position that joint employment under these statutes “should be defined expansively.” When considered alongside the National Labor Relations Board’s (NLRB or the Board) controversial ...

As we previously reported, the Department of Labor (“DOL”) issued a proposed rule expected to significantly increase the number of employees who are eligible for overtime. Most notably, the proposed rule seeks to increase the minimum salary threshold for exempt workers from the current level of $23,660 to $50,440.

In a December 16, 2015 interview with Bloomberg BNA, Secretary of Labor Thomas Perez stated he was “confident” that the final rule would be “out by the spring of next year.” This prediction falls ahead of other recent DOL estimations. In its latest regulatory agenda, released in November, the DOL’s Wage and Hour Division estimated that the final rule would be published in July of 2016. And while speaking on a recent panel at the American Bar Association’s Labor and Employment Law conference in Philadelphia, Solicitor of Labor M. Patricia Smith predicted that the new rule was not likely to appear before “late 2016.”

On Friday, August 21, 2015, the U.S. Court of Appeals for the District of Columbia Circuit upheld the U.S. Department of Labor’s (“DOL”) 2013 rule extending FLSA overtime and minimum wage protections to employees of home health care agencies who provide “companionship services” or live-in domestic care. The rule modified an exemption that was part of a 1974 amendment to the Fair Labor Standards Act (“FLSA”) that required domestic service workers to receive overtime and minimum wage, but excluded from those requirements employees who provide companionship services or live in the home where they work. Under the 2013 rule, the exemption for companionship services and live-in care only applies to workers employed by individuals or families who are receiving the care, not to employees of third-party home care providers. The 2013 rule also narrowed the definition of companionship services. Specifically, a worker only falls under the companionship exemption if the worker is employed directly by members of a household where the worker provides “fellowship and protection” (i.e. socializing with and monitoring the safety of elderly or infirm people) or if the worker provides daily living assistance, such as dressing and grooming, in conjunction with fellowship and protection, but does not spend more than twenty percent of their time providing such assistance.

On July 15, 2015, the Department of Labor (“DOL”) issued guidance which it claims is designed to reduce the misclassification of employees as independent contractors under the Fair Labor Standards Act (“FLSA”). This guidance boldly claims that “most workers are employees under the FLSA’s broad definitions.” Based on this guidance, the DOL will likely aggressively argue that workers are employees subject to the FLSA – not independent contractors.

In a closely watched case, Glatt v. Fox Searchlight Pictures, Inc. (decided July 2, 2015), the Second Circuit rejected the Department of Labor’s (“DOL”) intern test under the Fair Labor Standards Act (“FLSA”), and adopted a balancing test that focuses on whether the employee or the employer is the primary beneficiary of the relationship (“primary beneficiary test”).  This is important because interns are not considered employees, and thus, are exempt from the minimum wage and overtime provisions of the FLSA.

Yesterday, the Department of Labor (“DOL”) issued a proposed rule that is expected to significantly increase the number of employees who are eligible for overtime.  The proposed rule increases the minimum salary threshold for exempt workers from the current level of $23,660 to $50,440.  The rule applies to the FLSA’s executive, administrative, professional, and computer employees exemptions, but not the outside sales exemption which does not have a salary basis requirement.

Recent guidelines have been issued by the Department of Labor in connection with President Obama’s “Fair Pay and Safe Workplaces” Executive Order 13673.  Interested parties will have until July 27, 2015 to submit written comments to the Regulatory Secretariat for consideration before the proposals are finalized.

As the national debate regarding rights for same sex couples continues, more and more states are granting marital rights to members of the same sex.  Although we are only in the second quarter of 2015, five states have either passed legislation or have high court rulings that expand the rights of same sex couples.  And, in the coming weeks, the U.S. Supreme Court will rule upon issues of marriage equality in Obergefell v. Hodges, eventually rendering a decision that may have significant impact on both federal and individual state laws.

Federal agencies need not go through the formal and drawn-out “notice-and-comment” process when altering an interpretation of a regulation.  In a unanimous decision, the Supreme Court in Perez v. Mortgage Bankers Association stated that the Administrative Procedure Act (the “APA”) does not mandate notice-and-comment rulemaking for interpretive rules.  In doing so, the Supreme Court overturned the doctrine established by the D.C. Circuit’s 1997 decision, Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579 (D.C. Cir. 1997), which had held that an agency must use the APA’s notice-and-comment procedures prior to issuing a new interpretation of a regulation that deviates significantly from a definitive interpretation the agency had previously adopted.  In Perez, the Supreme Court addressed the question of whether the Paralyzed Veterans doctrine was consistent with the APA, ultimately finding that it was not. 

As we previously reported, federal courts around the country have slowly begun to take a more flexible approach to evaluating the enforceability of private FLSA settlement agreements, calling into question the widely-held, decades-old view that settlements of FLSA claims are unenforceable unless they are approved by the DOL or a court.  Last month, the U.S. District Court for the Western District of Arkansas joined this slowly growing movement, holding that in individual FLSA lawsuits, court approval of the FLSA settlement agreement is not necessary if all parties are represented by counsel.

On December 22, 2014, the U.S. District Court for the District of Columbia vacated a new U.S. Department of Labor (DOL) regulation, scheduled to take effect on January 1, 2015, which eliminated an exemption from the Fair Labor Standards Act (FLSA) for employees who provide home companionship and live-in domestic services. Home Care Ass'n of Am. v. Weil, No. 14-cv-967 (D.D.C. Dec. 22, 2014). The DOL's new regulation was controversial not only because it reversed years of precedent under the FLSA, but because many questioned whether the DOL had exceeded its authority in promulgating this regulation.

The Department of Labor has announced the release of a Final Rule implementing Executive Order 13672, which prohibits discrimination based on sexual orientation and gender identity by federal contractors and subcontractors. Executive Order 13672, signed by President Obama on July 21, 2014, amended Executive Order 11246 by adding sexual orientation and gender identity to the protected categories provided in the latter EO. The Final Rule will be effective 120 days after the date of its official publication in the Federal Register and will apply to government contracts entered into or modified after the effective date.

Integrity Staffing Solutions v. Busk
Oral argument was heard on October 8, 2014.  This case will resolve a circuit split on whether time spent by warehouse workers going through security is paid time.  The Fair Labor Standards Act, as amended by the Portal to Portal Act, does not require an employer to compensate for activities that are preliminary or postliminary to their principle work.  29 U.S.C. §254(a)(2).  The district court dismissed plaintiffs’ claims, but the Ninth Circuit ruled against Integrity Solutions, a contractor to Amazon.com, holding that going through security was an “integral and indispensable” part of the shift and not a non-compensable postliminary activity.  The Second and Eleventh Circuits previously held that time in security screening is not compensable time.  Interestingly, the U.S. Department of Labor filed an amicus brief on the side of Integrity Staffing.

Federal contractors and subcontractors were just required to file their 2013 VETS-100 and VETS-100A Reports by September 30th.  Going forward, those forms are being replaced by a new form – the VETS-4212 Report.  The Veterans’ Employment and Training Service (VETS)  has published a Final Rule that implements the changes.

The OFCCP (Office of Federal Contract Compliance Programs), an agency in the Department of Labor, continues its focus on “steering” claims during audits of federal contractors.  “Steering” claims examine whether women or minorities are discriminatorily assigned to less desirable jobs —  typically those with lower pay, less prestige, and/or fewer opportunities for advancement.  Steering claims are a hot topic of late for the federal contractor community. Central Parking Systems of Louisiana Inc. is the latest to pay out a six-figure settlement in this area.

In response to a presidential memorandum directing the Department of Labor (“DOL”) to collect summary compensation data from federal contractors and subcontractors to combat pay discrimination, the DOL’s Office of Federal Contract Compliance Programs (“OFCCP”) recently proposed a rule calling on certain federal contractors to submit reports on employee compensation.  The rule, published in the Federal Register on August 8, requires covered contractors to annually submit an “Equal Pay Report.” Covered federal contractors and subcontractors are those who:

• File EEO-1 reports;
• Have more than 100 employees; and
• Hold federal contracts or subcontracts worth $50,000 or more for at least 30 days.

Unpaid interns have increasingly become a hot topic among lawmakers and courts.  Last week, New York Governor Andrew Cuomo signed into law legislation which prohibits New York State employers from discriminating against, or sexually harassing, unpaid interns.  New York State enacted this legislation only a few months after New York City passed a law which prohibits discrimination against unpaid interns.  New York City unanimously enacted its legislation in response to a district court ruling in October 2013, which found that an intern could not proceed with a sexual harassment claim because she was unpaid, and therefore, she was not entitled to protections under Title VII or the New York City Human Rights Law.  (Wang v. Phoenix Satellite Television US, Inc., 976 F. Supp. 2d 527 (S.D.N.Y. 2013)).  Although few jurisdictions currently offer unpaid interns protection from discrimination or sexual harassment (only New York, Oregon and Washington, D.C.), legislators in New Jersey and California have introduced bills which would grant unpaid interns these same protections.  The California bill has already passed the State Assembly and is being reviewed by the State Senate.

During his most recent State of the Union Address on January 28, 2014, President Barack Obama stated that one of his top priorities in the coming year was to address what he described as “stagnant wages.”  More importantly, he warned Congress that if they did not take steps to tackle the issue soon, he was prepared to attempt to address the issue unilaterally through exercise of his executive power.

On April 8, 2014, in recognition of National Equal Pay Day, President Obama continued to advance his wage equality agenda by focusing on wage transparency through Executive Order on Non-Retaliation for Disclosure of Compensation Information (“Executive Order”) and a Presidential Memorandum entitled "Advancing Pay Equality Through Compensation Data Collection" (“Presidential Memorandum”).

In prior posts, we reported on the U.S. Department of Labor’s attempt to narrow the “advice exception” to the reporting requirements under Section 203 of the Labor-Management Reporting and Disclosure Act.  Most recently, the DOL had indicated its intent to issue a final rule in March of 2014 that would narrow the well-known “advice exception” to the reporting requirement to require reporting of any consulting relationships where the consultant engages in actions or communications that would indirectly or directly persuade employees regarding organizing.  Since it was first proposed in 2011, the anticipated final rule has drawn criticism from employers and the attorneys who provide valuable legal advice to employers in the context of union organizing.  If adopted, the rule would have a significant impact on employers because they would no longer be able to avoid reporting third-party consulting arrangements by isolating consultants from direct employee interaction.  The rule could also interfere with an employer’s ability to obtain legal advice from their attorneys due to the concern that both the employer and the attorneys may incur reporting obligations as well.

President Barack Obama is expected today to direct the Department of Labor to revise its wage-payment regulations so that more workers will receive overtime compensation. 

Currently, the Fair Labor Standards Act provides an overtime exemption for categories of salaried employees who receive at least $455 a week.  President Obama intends to increase the weekly $455 salary threshold so that employers must pay affected employees a higher salary, cut their hours, or pay them overtime for work in excess of 40 hours a week.

The Department of Labor’s Veterans’ Employment Training Service recently issued a proposed Rule that would change the current annual VETS-100 and VETS-100A reporting requirements.  There are several significant changes proposed by the DOL which, in a change from other regulatory developments, would actually decrease work for covered employers.

The Office of Federal Contract Compliance Programs (OFCCP) performs compliance audits reviewing numerous federal contractors’ affirmative action plans and practices on a yearly basis.  A number of organizations are reporting that the OFCCP will be sending out courtesy letters (known as corporate scheduling announcement letters, or “CSAL”) notifying employers that they have been selected for such an audit as early as next week.  With the changing landscape of the OFCCP’s affirmative action plan requirements and regulations, it is important that employers be on the lookout for such letters and begin preparations for the audit as soon as possible.

The government shutdown may have ended six weeks ago, but its impact may be felt for months to come.  The Office of Management and Budget recently released a report entitled “Impacts and Costs of the October 2013 Federal Government Shutdown,” which details the costs of the government shutdown and the impact it had on government workers, which in turn impacts the private sector workplace as well.

On September 17, 2013, the U.S. Department of Labor (“DOL”) announced a final rule that will extend overtime and minimum wage protections to many direct care workers.  The rule is set to go into effect on January 1, 2015.

When the Fair Labor Standards Act (“FLSA”) was enacted, it did not protect workers employed directly by households in domestic service.  Congress amended the FLSA in 1974 to apply to employees performing household services in a private home.  However, that amendment did not apply to certain workers, such as domestic service workers employed to provide “companionship services” to elderly persons or persons with illnesses, injuries, or disabilities.  With the DOL’s new rule, many direct care workers, such as certified nursing assistants, home health aides, personal care aides, and other caregivers will be subject to the minimum wage and overtime requirements of the FLSA. 

On August 9, Secretary of Labor Thomas Perez issued an internal memo calling for the implementation of the Supreme Court’s landmark decision in United States v. Windsor.  In that case, the Court held that section three of the Defense of Marriage Act (“DOMA”), which limited the definition of marriage to “a legal union between one man and one woman,” violated due process and equal protection principles embodied in the Fifth Amendment.  The internal memo stated that the Department of Labor (“DOL”) will be removing references to DOMA from its correspondence, and will be working to ensure the availability of spousal leave based on same-sex marriages under the Family and Medical Leave Act (“FMLA”).

On January 14, 2013, the Department of Labor (“DOL”) issued guidance further defining the meaning of “son or daughter” within the Family and Medical Leave Act (“FMLA”).  The FMLA provides qualified employees up to 12 weeks of leave within a 12 month period to care for a son or daughter with a serious health condition.  Under certain circumstances, a son or daughter may include an individual over the age of 18, if that individual has a disability.  The DOL now clarifies, that a child over the age of 18 with a disability may qualify as a son or daughter within the FMLA, regardless of the individual’s age when the disability occurred.

The Department of Labor (DOL) takes audits of employee plans very seriously.  Over the past few years, the Employee Benefit Security Administration (EBSA) has increased its civil and criminal audits of plans and, in 2011, collected $1.39 billion in fines in the process.  EBSA has recently added several hundred more auditors to its ranks to increase audits.

On July 24, 2012, the Fifth Circuit Court of Appeals issued what may turn out to be one of the more significant Fair Labor Standards Act rulings in recent years.  In Martin v. Spring Break ’83 Productions, LLC, the Fifth Circuit held that, under certain circumstances, a settlement agreement between an employer and its employees involving FLSA claims is enforceable notwithstanding the fact that neither the Department of Labor nor a court approved the agreement.  This ruling is the first appellate-level decision enforcing a private FLSA settlement and potentially opens the door for other circuits and district courts to follow suit.

On June 18, 2012, in Christopher, et. al. v. SmithKline Beecham Corp., the United States Supreme Court issued its first decision interpreting the so-called white collar exemptions under the Fair Labor Standards Act and finally resolved the circuit split over whether pharmaceutical sales representatives are exempt as outside salespeople.  This decision is not only a long-awaited victory for the pharmaceutical industry, but also a key win for employers in all industries. In Christopher, the Supreme Court held that pharmaceutical sales reps qualify for the outside salesman exemption and are not entitled to overtime wages. The Court also unanimously rejected the U.S. Department of Labor’s (“DOL”) attempt at back-door regulation through an amicus brief, delivering a blow to the DOL’s recent enforcement campaign.

In several prior blog entries, we told you about the NLRB’s new requirement that employers post a notice regarding employee rights under the NLRA.  Employers have been following the story with interest.

Initially proposed by the NLRB in December 2010, the new posting tells employees about their rights under the National Labor Relations Act (“NLRA”).  The new requirement initially had an effective date of November 14, 2011, but it has been delayed several times.  The NLRB first delayed implementation until January 31, 2012, to allow “for further education and outreach.”  Then, several industry groups and businesses filed federal lawsuits in South Carolina and Washington, D.C., challenging the NLRB’s Final Rule.  The groups argued the NLRB did not have statutory authority to issue the notice requirement.  While the lawsuits were pending, in the District of Columbia and South Carolina, the NLRB agreed to further delay implementation until April 30, 2012.

The Office of Federal Contract Compliance Programs (OFCCP) budget request for next year reflects its intent to increase aggressive enforcement.  The OFCCP, part of the U.S. Department of Labor, is the agency charged with enforcing the affirmative action obligations of federal contractors and subcontractors.   Approximately 25% of the American workforce is employed by federal contractors and subcontractors, whose federal contracts total more than $700 billion annually.  The OFCCP’s proposed budget for FY 2013 is now available online.

The U.S. Department of Labor provides general information and compliance guidance regarding numerous wage, hour, employment, and labor laws via “fact sheets” which are available to employees, employers, and the general public. Fact sheets can serve as helpful reference and compliance material for employers. On December 23, 2011, the DOL issued three new fact sheets on the issue of unlawful retaliation.  These newly released fact sheets address retaliation under the Fair Labor Standards Act (“FLSA”), the Family and Medical Leave Act (“FMLA”), and the Migrant and Seasonal Agricultural Workers Protection Act (“MSPA”).

The NLRB announced today it has issued a Final Rule requiring employers to notify employees of their rights under the National Labor Relations Act (“NLRA”). A Fact Sheet  is also available. The rule is scheduled to be published in the Federal Register on August 30, 2011. It is effective November 14, 2011.

The Veterans’ Employment and Training Service (VETS) of the Department of Labor (DOL) just posted a “Special Announcement” delaying the 2011 VETS-100/100A Filing Cycle.

Typically, covered employers are required to submit the VETS-100 and VETS-100A Reports annually by September 30.  The forms identify the number of protected veteran employees and new hires in the workforce.  This year, the Department had announced a plan to accept electronic submissions of the reports effective August 1, 2011.  Unfortunately, technical problems have interfered with the electronic filing.  Contractors presently cannot register or file for the 2011 cycle.

Section 203 of the Labor-Management Reporting and Disclosure Act requires employers to annually report via Form LM-10 any agreement or arrangement with a third-party consultant to persuade employees as to collective bargaining rights, or to obtain certain information about the activities of employees or a labor organization involved in a labor dispute with the employer. The retained consultant must also file a report concerning the agreement or arrangement (Form LM-20). However, one statutory exception in section 203(c) provides that no report need be filed when the consultant gives “advice” to the employer.

The United States Department of Labor (“DOL”) has announced the launch of its first application, or “app,” for smartphones to “help employees independently track the hours they work and determine the wages they are owed” in accordance with the Fair Labor Standards Act (“FLSA”). The application is available in both English and Spanish and allows employees to privately record regular work hours, break and meal times, and any overtime hours. The free app is currently compatible only with iPhone and iPod Touch; however, the DOL is exploring updates for compatibility with other smart phones such as Android and Blackberry phones.

In recent months the federal government has announced a number of initiatives designed to increase the employment of individuals with disabilities in both the private and government sectors.  These measures send a clear message to employers: audit your practices now to ensure adequate outreach and accessibility to the disabled.

On January 4, 2011, President Obama signed the FDA Food Safety Modernization Act (FSMA), which seeks to promote food safety by enacting strict safety standards in the food industry. In addition to the enactment of safety standards, Section 402 of the FSMA ensures sweeping protections for whistleblowers in the industry. The FSMA whistleblower protection applies to any “entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food.” The anti-retaliation provisions protect any employee of a covered entity who provides to the employer, the federal government, or the Attorney General of a State information that the employee reasonably believes constitutes a violation of the FSMA; testifies or is about to testify about any such violation; assists or participates in any such proceeding; or objects to or refuses to participate in any activity that the employee reasonably believes is a violation of the FSMA.

The Obama Administration has addressed labor and employment issues aggressively over the past two years.  The Department of Labor, under President Obama’s direction, has articulated its “Plan/Prevent/Protect” agenda and its focus on openness and transparency in labor practices.  As a result of the steps taken by the Obama Administration in 2010, the new Republican-dominated Congress may have to decide a number of regulatory and legislative measures that will directly affect labor and employment law in 2011. The following is a list of proposed regulations and legislation that employers and their attorneys should watch this year:

Recently, there has been a large amount of public commentary regarding the dangers of distracted driving, including texting while driving.  The Occupational Safety and Health Administration (OSHA), which regulates workplace safety, has now officially declared texting while driving to be a workplace hazard and an OSHA violation.  In its recent open letter to employers, OSHA explained that:

It is [the employer’s] responsibility and legal obligation to create and maintain a safe and healthful workplace, and that would include having a clear, unequivocal and enforced policy against the hazard of texting while driving.  Companies are in violation of [OSHA] if, by policy or practice, they require texting while driving, or create incentives that encourage or condone it, or they structure work so that texting is a practical necessity for workers to carry out their job.

Under the Family and Medical Leave Act ("FMLA"), not only is an "employer" responsible for compliance with the FMLA, but any "successor in interest of an employer" is responsible as well. However, the FMLA does not define the term "successor in interest." The meaning of this term is crucial because an employee who has worked for an employer for less than 12 months might still be eligible for FMLA protection if that employer is considered a successor in interest to the employee’s former employer and the employee’s combined length of service for both employers is 12 months or more.

The Department of Labor’s Wage and Hour Division recently issued a fact sheet explaining employers’ obligations under the break time requirement for nursing mothers found in the Patient Protection and Affordable Care Act, which amends Section 7 of the Fair Labor Standards Act (“FLSA”).