Employers in the technology, media and telecommunications industry are faced with many workplace management and legal compliance challenges. Among these are trends in the shared economy and rise of the contingent workforce, data privacy and security, and use of social media in connection with recruitment, employee monitoring and termination. At the recent Epstein Becker Green 34th Annual Workforce Management Briefing held at the New York Hilton, members of the firm’s TMT Group including the authors of this post, along with in-house counsel speakers Rebecca Clar of AOL and ...
Practitioners know how difficult it is to obtain an award of fees against the government. However, in an opinion in which the Court states at the outset, “the government here chose to defend the indefensible in an indefensible manner,” the Fifth Circuit Court of Appeals has awarded attorneys’ fees to an employer in a wage-hour dispute based on the Department of Labor’s (“DOL”) bad faith-- both in pursuing a legally indefensible case and in the conduct of the litigation.
The case, Gate Guard Services, L.P. v. Perez, 792 F.3d 554 (5th Cir. 2015), is an unusual one But in this ...
On August 7, 2015 the Second Circuit held that parties cannot enter into private settlements of Fair Labor Standards Act (“FLSA” or the “Act”) claims without the approval of either the district court or the Department of Labor. Cheeks v. Freeport Pancake House, Inc., No. 14-299 (2nd Cir. 2015).
Although other circuits are split on the issue of whether pre-suit agreements to settle FLSA claims are enforceable, this is the first appellate decision to address the issue of whether judicial approval is required to terminate an FLSA lawsuit once it has been filed. See Lynn's Food ...
On December 23, 2014, Brian Steinbach posted regarding U.S. District Court Judge Richard Leon’s December 22nd decision in Home Care Association of America v. Weil, vacating the portion of the new Department of Labor regulation (proposed 29 CFR Sec. 552.109, scheduled to go into effect on January 1, 2015) barring third party employers from claiming the companionship services (minimum wage and overtime) or live-in domestic service (overtime) exemptions. The post noted that the decision did not address DOL’s separate changes to the definition of “companionship services” ...
Kara Maciel, a Member of the Firm in the Labor and Employment, Litigation, and Health Care and Life Sciences practices, in the Washington, DC, office, was quoted in an article titled “For Fine Dining Sector, Tip Pools Can Be Legal Trap.” (Read the full version – subscription required.)
Following is an excerpt:
As a wave of lawsuits hits restaurants over tip pool violations, fine dining establishments packed with sommeliers, mixologists and other high-end specialists that tend to take on some managerial duties face the greatest risks of becoming targets for litigation or ...
On Feb. 12, 2014 President Obama signed Executive Order 13,658 to raise the minimum wage for workers on federal service and construction contracts from the current $7.25 to $10.10 per hour. On June 12, 2014 the United States Department of Labor announced proposed implementation of the Executive Order with respect to all new and renegotiated federal contracts starting Jan. 1, 2015.
This increased minimum wage would apply to the approximately 200,000 employees working for government contractors and subcontractors, and is another salvo in the President’s push ...
By Aaron Olsen
President Obama’s announcement last week that he was ordering the Labor Department to revise the regulations concerning who can be classified as “executive or professional” employees has created a buzz about what this will mean for both employers and employees. The fact that the President specifically identified concerns about managers in the fast-food industry suggests that the Department of Labor will be looking for ways to change how employees in the hospitality industry are classified.
However, there have been very few details about what any of this will ...
As we noted in "First Kill All The Lawyers", last November the DOL announced its intention to move forward this month with the Administration's Proposed Rule change which would eviscerate the Advice Exemption to the Persuader Rule . Yesterday, the DOL again delayed its timeline for finalizing the Rule.
In November the DOL's announcement asserted that it intended to publish a Final Rule in March. On March 6, according to Bloomberg BNA, a DOL spokesman asserted that the Proposed Rule would NOT be made final this month. The DOL did not give a new target date for finalizing the Rule ...
Virtually all hospitality employers are aware that pursuant to the Fair Labor Standards Act (“FLSA”), they are required to compensate employees for all hours worked. What is not as clear, however, is whether the time an employee spends at training programs, lectures, meetings, and other similar activities should be considered hours worked. As a result, our clients in the hospitality industry often ask whether they are required to compensate employees for time spent in such training activities.
The short answer to this question is that an employee’s ...
Our colleagues have issued a new client advisory: “New York State Department of Labor Adopts Wage Deduction Regulations,” by William J. Milani, Dean L. Silverberg, Jeffrey M. Landes, Susan Gross Sholinsky, Anna A. Cohen, and Jennifer A. Goldman.
Following is an excerpt:
The New York State Department of Labor (“DOL”) has adopted wage deduction regulations (“Final Regulations”) pertaining to the expanded categories of permissible wage deductions in the New York Labor Law, effective October 9, 2013. As we previously reported (see the Act Now Advisory entitled “New ...
The OSHA Law Update blog has an update on the government shutdown: “OSHA Shutdown – Government Shutdown Strips OSHA to a Skeleton Crew,” by Casey Cosentino and Eric Conn of Epstein Becker Green.
Following is an excerpt:
The federal government shut down all but essential operations on October 1, 2013, after Congress failed to reach an agreement on a budget or a continuing resolution for funding government operations. As a result, OSHA (like most federal agencies) has furloughed more than 90% of its personnel and suspended most of its operations.
The OSHA Law Update blog has an update on the government shutdown: “OSHA Shutdown – Government Shutdown Strips OSHA to a Skeleton Crew,” by Casey Cosentino and Eric Conn of Epstein Becker Green.
Following is an excerpt:
The federal government shut down all but essential operations on October 1, 2013, after Congress failed to reach an agreement on a budget or a continuing resolution for funding government operations. As a result, OSHA (like most federal agencies) has furloughed more than 90% of its personnel and suspended most of its operations.
By Casey M. Cosentino and Eric J. Conn
The federal government shut down all but essential operations on October 1, 2013, after Congress failed to reach an agreement on a budget or a continuing resolution for funding government operations. As a result, OSHA (like most federal agencies) has furloughed more than 90% of its personnel and suspended most of its operations.
On September 10, 2013, with the government shutdown looming, the Assistant Secretary of Labor for OSHA, David Michaels, issued a memorandum outlining OSHA's “Contingency Plan for Suspension of Agency Operations ...
On September 17, 2013, the U.S. Department of Labor (“DOL”) issued a final rule extending the federal minimum wage and overtime pay protection under the Fair Labor Standards Act (the “FLSA”) to many direct care or domestic service workers, including home health aides, personal care aides and nursing assistants. The rule will take effect on January 1, 2015.
For almost 40 years, an exemption from the minimum wage and overtime requirements of the FLSA has applied to domestic service workers employed to provide “companionship services” for an ...
By Jordan B. Schwartz and Eric J. Conn
On March 18, 2013, President Obama nominated Thomas E. Perez, a Harvard Law School graduate and current federal prosecutor with a long track record of defending civil rights and vulnerable workers, to become the next U.S. Secretary
of Labor. Perez would replace Seth Harris, the Acting Secretary of Labor and former Deputy Secretary of Labor, who has been filling the role since Secretary Hilda Solis resigned from the post in January.
Thomas Perez’s Background
Since October 2009, Perez has served as the Assistant Attorney General for the Civil Rights Division at the U.S. Department of Justice. From 2006 to 2009, Perez served as Maryland’s Secretary of Labor. In that capacity, he led efforts to target Maryland companies who were engaging in workplace fraud by imposing new restrictions on employees who had been misclassified as independent contractors. Perez’s efforts led to the implementation of Maryland’s Workplace Fraud Act of 2009, with him stating that the Act would “ensure that employers who attempt to cheat the system, their workers, and their competitors, will pay a steep price for their actions.”
During his tenure as Maryland’s Secretary of Labor, where his jurisdiction included Maryland’s Occupational Safety and Health Division, Perez distinguished himself as a strong and vocal defender of safety protections for Maryland workers. According to Fred
Mason, the president of the Maryland State and District of Columbia AFL-CIO, Perez fought to increase funding for the state occupational safety and health plan, which had been underfunded under Governor Robert Ehrlich. Specifically, Mason stated that “that department went for a couple years with essentially no money to hire people to enforce laws that were already on the books.” After Perez took office, “we began to make a comeback of sorts, in terms of having the necessary workers to do the inspections.” Similarly, Peg Seminario, safety and health director at AFL-CIO, said she considered Perez “an excellent choice” to head the Labor Department.
The Nomination of Thomas Perez
At a time when the President has promised to create more jobs and overhaul immigration policy, Mr. Obama has presented Mr. Perez, who would be the only Hispanic in the cabinet, as an American immigration success story, whose own history would help him tackle important current controversial issues. At the White House on March 18, Obama called Perez a “consensus builder” who “understands that our economy works best when the middle class and those working to get into the middle class have the security they need on the job, a democratic voice in the workplace, everybody playing by the same set of rules.” At the same press conference, Perez stated that:
“as you well know, our nation still faces critical economic challenges, and the department’s mission is as important as ever. . . . I am confident that together with our partners in organized labor, the business community, grass-roots communities, Republicans, Democrats, and independents alike, we can keep making progress for all working families.”
Not surprisingly, this nomination has drawn praise from worker advocates, and most Democrats have expressed a great deal of enthusiasm for this nomination. Senator Patrick Leahy said in a statement that as a former Secretary of Labor in Maryland “and a fierce defender of workers’ rights and civil rights, [Perez] is uniquely situated to serve in this important post at a critical time when Congress will be considering issues like immigration reform, reducing unemployment, and continuing our economic recovery.”
Congressional Republicans, however, have indicated a potentially rocky confirmation process and voiced their concern that Perez is the “wrong man for this job.” In particular, Senator Jeff Sessions (R-Ala.) has stated that “this is an unfortunate and needlessly divisive nomination” as “Mr. Perez has aggressively sought ways to allow the hiring of more illegal workers.” Additionally, Representative John Kline (R-MN), chairman of the Education and the Workforce Committee and thus a key house Republican on worker safety issues, has stated that “our country needs a labor secretary who will put America’s jobs before his own” and cited “troubling allegations in the media and an independent investigation” about Perez.
The Confirmation Hearing
During the April 18, 2013 confirmation hearing, Mr. Perez stated that he would seek a balance of protecting worker safety while also encouraging economic growth. Specifically, Mr. Perez told the Senate, Health, Education, Labor and Pensions Committee that “job safety and job growth are not mutually exclusive” and thus “it is not necessary to choose between one and the other.” When asked what his top priority would be as labor secretary, he responded “jobs, jobs, jobs.” He also testified that other priorities would be reauthorizing the Workplace Investment Act with bipartisan support, pension security, enforcement of wage and hour laws, job safety and equal opportunity in the workplace.
By: Kara M. Maciel
Earlier this month, we released our Wage and Hour Division Investigation Checklist for employers and have received a lot of great feedback with additional questions. Following up on that feedback, we will be regularly posting FAQs as a regular feature of our Wage & Hour Defense Blog.
In this post, we address a common issue that many employers are facing in light of increased government enforcement at the state and federal level from the Department of Labor.
QUESTION: “I am aware that my industry is being targeted by the DOL for audits and several of my ...
Epstein Becker Green is pleased to announce the availability of a Wage and Hour Division Investigation Checklist, which provides hospitality employers with valuable information about wage and hour investigations and audits conducted by the U.S. Department of Labor (DOL). Like EBG’s first-of-its kind Wage and Hour App, which provides detailed information about federal and state laws, the Checklist is a free resource offered by EBG.
The Checklist provides step-by-step guidance on the following issues: preparation before a Wage and Hour Division investigation of the DOL; ...
By Frederick Dawkins and Douglas Weiner
Earlier this month, at the ABA Labor and Employment Law Conference, Solicitor of Labor M. Patricia Smith reaffirmed that investigating independent contractors as misclassified remains a top priority of the U.S. Department of Labor’s (“DOL”) enforcement initiatives. The DOL will continue to work with other federal and state agencies, including the IRS, to share information and jointly investigate claims of worker misclassification. The joint enforcement effort is certainly driven by, among other things, an interest in ...
The Occupational Safety and Health Administration (“OSHA”) announced on March 1, 2012 that its Office of the Whistleblower Protection Program (“WPP”) will now report directly to the Department of Labor’s Office of the Assistant Secretary, rather than to its Directorate of Enforcement Programs. The restructuring signals an elevated priority placed on enforcement of the whistleblower protection laws falling under OSHA’s jurisdiction, and suggests that the Agency intends to devote increased efforts and resources to this area in the future.
WPP Had Not Been Sufficiently Meeting Its Mission to Protect and Incentivize Whistleblowers
OSHA’s WPP is responsible for enforcing the various whistleblower protection provisions of twenty-one separate federal statutes. These include such laws as the Occupational Safety and Health Act, Sarbanes-Oxley, and the Affordable Care Act, and they offer protections to employees who bring to light violations of a wide variety of laws, including airline safety, environmental remediation, food safety, public transportation and railroad, maritime and securities laws. While some differences exist between the details of the particular statutes, in general they prohibit an employer from terminating or otherwise discriminating or retaliating against an employee who reports or provides information regarding a suspected violation of the law, either to internal audit personnel or to the government. The statutes vest OSHA with jurisdiction to investigate complaints of retaliation against whistleblowers, and to award appropriate relief which frequently includes reinstatement, attorneys’ fees and costs, compensatory damages, and in some cases even punitive damages.
A pair of Government Accountability Office audits in 2009 and 2010 had identified substantial problems with the WPP. In particular, an August 2010 GAO Report No. 10-722, titled “Whistleblower Protection: Sustained Management Attention Needed to Address Long-Standing Program Weaknesses,” found that “OSHA has done little to ensure that investigators have the necessary training and equipment to do their jobs, and that it lacks sufficient internal controls to ensure that the whistleblower program operates as intended.”
By Michael Kun
Last week, the U.S. Department of Labor’s Wage and Hour Division and the California Secretary of Labor announced that they were teaming up to crack down on employers who classify workers as independent contractors.
The announcement that the two groups would work together on such an initiative should not come as much of a surprise to employers. Shortly after Hilda Solis took office as the U.S. Secretary of Labor, the Wage and Hour Division announced that it would be focusing on this issue. And California has enacted a new statute that provides additional penalties in ...
A recent settlement with the Department of Labor’s Office of Federal Contract Compliance Programs (the “OFCCP”) has once again made clear that, if an employer is a federal government supply and service contractor or subcontractor subject to the affirmative action/non-discrimination obligations imposed by Executive Order 11246, including the obligation to develop and maintain a written affirmative action program, it is imperative that the employer properly track its applicants and hires.
Such tracking should include documenting the gender and ...
By: Kara M. Maciel
The Department of Labor’s Wage and Hour Division in Norfolk, Virginia has announced that it will be stepping up its compliance audits and enforcement efforts against area hotels. In the past few years, the DOL stated it found violations at about 60% of local hotels. According to the DOL, the agency recently made spot checks at 10 area hotels since April. This is just one part of the agency’s nationwide enforcement program and its “Plan/Prevent/Protect” initiative against the hospitality industry. Common violations assessed by the DOL include:
· ...
U.S. Department of Labor Issues Proposed Rule on H-2B Wage Rates
On October 4, 2010, the Employment and Training Administration, U.S. Department of
Labor (“DOL”), issued a proposed rule that would require employers to pay H-2B and
American workers recruited in connection with an H-2B job application a “wage that meets
or exceeds the highest of: the prevailing wage, the federal minimum wage, the state minimum
wage or the local minimum wage.” The proposed rule was published on October 5, 2010, in
the Federal Register. Interested parties have 30 days to ...
A report by the Government Accountability Office found that the Department of Labor's Wage and Hour Division, the federal agency charged with enforcing minimum wage, overtime and other labor laws, "is failing in that role, leaving millions of workers vulnerable," according to an article in today's New York Times.
One of the reports concerned the Division's office in Miami:
When an undercover agent posing as a dishwasher called four times to complain about not being paid overtime for 19 weeks, the division’s office in Miami failed to return his calls for four months, and when it did ...
The U.S. Department of Labor's Wage & Hour Division has issued two new opinion letters addressing circumstances under which employers may not reduce the hours of exempt employees without running afoul of the "salary basis" test and risking loss of the employees' exempt status.
First, some background. Employees exempt from the FLSA's minimum wage and overtime requirements as professional, executive, or administrative employees must be paid a salary of at least $455 per week. Under 29 C.F.R. § 541.602(a),
[a]n employee will be considered to be paid on a "salary basis" ...
Recent Updates
- U.S. Court of Appeals Decision Highlights Retaliation Risks During Employee Separations
- Fast Facts About the DOL Proposed Rule for Electronic Disclosures for ERISA Group Health Plans
- San Francisco Amends its Fair Chance Ordinance
- New Massachusetts Employer Notice Obligation
- Watch: Change Is Coming from the EEOC—but When? - Employment Law This Week