On July 23, 2026, the U.S. Department of Labor (DOL) proposed a new rule (the “Proposed Rule”) that would offer group health plan administrators an additional safe harbor for electronically furnishing required group health plan disclosures to participants and beneficiaries.
What employers should know about key developments this week:
- Two Federal Agencies Target DEI: The U.S. Department of Labor (DOL) is urging its employees to file whistleblower complaints and report diversity, equity, and inclusion (DEI) activities that violate the administration’s ban. Additionally, the Equal Employment Opportunity Commission released a 2025-2029 National Enforcement Plan that prioritizes enforcement against DEI-related discrimination.
- DOL Opinion Letters: The DOL’s Wage and Hour Division published four opinion letters addressing overtime exemptions, bonuses, meal breaks, and compensable work. While these letters do not signal dramatic shifts in the DOL’s position, they provide greater clarity, consistency, and transparency.
- PAGA Standing: A California appeals court held that an employee who loses in individual arbitration may also lose standing to bring a representative claim under the Private Attorneys General Act (PAGA).
What employers should know about key developments this week:
- National Labor Relations Board (NLRB) Sets New Enforcement Priorities: NLRB General Counsel Crystal Carey directed regional offices to prioritize the resolution of current cases over initiating new enforcement actions.
- Department of Labor (DOL) Targets Non-Union Workplaces: In an internal memo, DOL Solicitor of Labor Jonathan Berry emphasized that enforcement would focus on non-unionized environments, noting that unions were better equipped to address issues in unionized workplaces.
- Equal Employment Opportunity Commission (EEOC) Cracks Down on Diversity, Equity, and Inclusion (DEI) Policies: EEOC Chair Andrea Lucas issued a warning that preference-based diversity policies may violate Title VII of the Civil Rights Act of 1964 and signaled a return to systemic investigations and large-scale litigation.
As we reported last month, the U.S. Department of Labor (“DOL” or “Department”) kicked off the new year by publishing six Opinion Letters, four of them addressing specific topics related to Fair Labor Standards Act (“FLSA” or “Act”) compliance. These Opinion Letters provide practical guidance responsive to real-world questions from individuals or organizations.
As featured in #WorkforceWednesday®: This week, we discuss the Department of Labor’s (DOL’s) new compliance tools, its proposed pharmacy benefits manager (PBM) transparency regulation, and updated enforcement priorities from the DOL’s Employee Benefits Security Administration. We also cover the National Labor Relations Board’s (NLRB’s) revamped case intake process.
➡️ DOL Releases Compliance Tools
➡️ DOL Issues Proposed Regulation for PBMs
➡️ NLRB Adjusts Intake Procedure
As featured in #WorkforceWednesday®: This week, we look at the potential restoration of a quorum at the National Labor Relations Board (“NLRB” or “Board”), the U.S. Department of Labor’s (DOL’s) deregulatory initiatives, and lessons from a high-profile workplace incident at a Coldplay concert.
As featured in #WorkforceWednesday®: This week, we discuss the U.S. Department of Labor’s (DOL’s) plan to eliminate the Office of Federal Contract Compliance Programs (OFCCP) and the DOL’s new opinion letter program.
On May 30, 2025, the DOL moved to eliminate the OFCCP, shifting key enforcement duties to other agencies. At the same time, the DOL has launched a new opinion letter program, expanding access beyond the Wage and Hour Division.
Employers must navigate these changes while maintaining compliance with federal, state, and local anti-discrimination laws. Epstein Becker Green attorneys Kim Carter and Paul DeCamp provide their insights into these shifts and their likely future impact on employers.
With Memorial Day in the rearview mirror and the month of June upon us, many companies and organizations throughout the country are preparing to kick off the summer by welcoming an incoming cohort of summer interns. Internship programs are a win-win for both employers and students: they enable employers to identify future talent and provide students valuable work experience and training. That said, employers choosing to offer such programs should take care to structure them properly to avoid any risk of liability under applicable federal and state wage and hour laws. Keep reading to learn the key wage-hour compliance issues and best practices for hosting interns this summer.
Do I have to pay my interns?
Most likely, yes—at least unless the internship is one where the intern mainly shadows and observes but performs little to no productive work. At least under U.S. Department of Labor Wage and Hour Division (WHD) guidance, internships generally are presumed to constitute an employment relationship under the federal Fair Labor Standards Act (“FLSA”)—and, therefore, an employer must pay wages to its interns—unless the internship satisfies the “primary beneficiary test.”
On May 1, 2025, the U.S. Department of Labor’s (DOL) Wage and Hour Division (Division) issued Field Assistance Bulletin (FAB) No. 2025-1 (“FAB 2025-1”), announcing that it is currently working to reformulate the test as to how independent contractor status is determined under the Fair Labor Standards Act (“FLSA”). Although it is unclear what contours the revised rule will eventually take, FAB 2025-1 signals a clear intention to make it easier for businesses to classify workers as independent contractors.
The rulemaking process will take time. FAB 2025-1 accordingly provides that, during the interim, the DOL will no longer enforce a 2024 rule established under the Biden administration. The 2024 rule, which consisted of a non-exhaustive multi-factor test, is largely viewed as placing a difficult hurdle with respect to independent contractor classification.
FAB 2025-1 relaxes the DOL enforcement standard by reverting to the “economic reality” framework outlined in Fact Sheet #13 (July 2008), as informed by Opinion Letter FLSA2019-6. The “economic reality” framework asks whether the worker is an independent contractor in business for themselves, or an employee economically dependent on the business they serve. While this does not involve a single rule or test, significant factors include:
On Thursday, March 26, 2025, a federal judge for the Northern District of Illinois issued a Temporary Restraining Order (TRO) prohibiting enforcement of portions of Executive Order 14151 (“the J20 EO”) and Executive Order 14173 (“the J21 EO”), two of President Trump’s first directives seeking to eliminate Diversity, Equity, and Inclusion (DEI), previously explained here. This order has implications for federal contractors and grant recipients nationwide, at least for now.
The Case
The case, Chicago Women in Trades v. Trump et. al., was brought by a Chicago-based association, Chicago Women in Trades (CWIT), that advocates for women with careers in construction industry trades. Federal funding has constituted forty percent of CWIT’s budget. After the issuance of the J20 and J21 EOs, CWIT received an email from the U.S. Department of Labor’s (DOL) Women’s Bureau stating that recipients of financial assistance were “directed to cease all activities related to ‘diversity, equity and inclusion’ (DEI) or ‘diversity, equity, inclusion and accessibility’ (DEIA).” Similarly, one of its subcontractors emailed CWIT to immediately pause all activities directly tied to its federally funded work related to DEI or DEIA. CWIT brought the action against President Trump, the DOL, and other agencies alleging, among other things, that its Constitutional rights were violated by various provisions in both EOs. For example, CWIT argued that the J20 EO targeted “DEI,” “DEIA,” “environmental justice,” “equity,” and “equity action plans” without defining any such terms. This lack of definition, according to CWIT, makes it difficult to understand what conduct is permissible and what is not.
Section 3(m)(2)(B) of the FLSA prohibits employers, including managers or supervisors, from keeping any portion of an employee’s tips. Accordingly, the law has been clear that a manager or supervisor cannot participate in a general employee tip pool, since tip pools including tips of other employees.
Although this appears clear at first blush, the blurred lines of restaurant staffing creates ambiguity as to who is exactly a manager or supervisor. Non-exempt employees often work in a certain supervisory capacity as team or shift leads. Conversely, it is also common for managers and supervisors in restaurants to perform a certain amount of non-supervisory duties. So, when are employees with minor supervisory responsibilities treated as managers for tip pooling? And can managers participate in tip pools when they perform non-supervisory duties?
The wildfires moving through Southern California have destroyed communities and displaced countless individuals. While the nation’s first responders are tirelessly working to contain and neutralize the devastation, many employers are grappling with how best to provide support for their affected employees.
Disaster Assistance to Employees
Employers may consider offering the following disaster assistance directly to employees:
- Qualified Disaster Relief Payments: Under Section 139 of the Internal Revenue Code of 1986, as amended (the “Code”), employers operating in states such as California, receiving FEMA assistance can make tax-free qualified disaster relief payments directly to impacted employees. The payments can be made for reasonable and necessary personal, family, or living expenses as a result of a qualified disaster. Funeral expenses as a result of a qualified disaster will also qualify under these payments. However, employers should be aware that these payments do not cover income replacement payments or expenses reimbursed through insurance of FEMA grants.
- Charitable Emergency Funds: Employers may provide tax-free emergency funds to employees through related 501(c)(3) charities and foundations. The specific rules and requirements for these 501(c)(3) entities, including whether and to what extent contributions are deductible, differ depending on whether the entity is an employer-sponsored public charity, an employer-sponsored private foundation, an employer-sponsored donor advised fund, or an unrelated public charity.
With more than 24 million mothers with children under the age of 18 in the U.S. workforce, many of whom breastfeed their children, it is important for employers to understand the break time and pumping space protections afforded to nursing mothers by the Fair Labor Standards Act (FLSA).
Reasonable Break Time to Pump
Under the FLSA, nursing employees are entitled to reasonable break time during the workday to express breast milk for their nursing child for one year following the child’s birth. The employee must be entitled to a break “each time such employee has need to express milk.” The frequency, duration, and timing of the breaks an employee may need will likely vary depending on the employee and child.
Employers are not required to pay non-exempt employees for break time to pump unless otherwise required by applicable law, or if the employees are not completely relieved of their duties while pumping. Under the Department of Labor (DOL) regulations implementing the FLSA, breaks of 20 minutes or less must be paid, and if an employer provides such breaks to its employees generally, nursing employees may use such paid breaks to pump. Additionally, if an employer provides paid breaks to all employees, the employer must pay employees who choose to pump during their paid breaks.
On August 23, the United States Court of Appeals for the Fifth Circuit issued its much-anticipated decision in Restaurant Law Center v. United States Department of Labor. In one of the very first federal appellate court rulings since the Supreme Court overruled Chevron USA Inc. v. Natural Resources Defense Council, Inc. this year, the unanimous three-judge panel concluded that the Department of Labor’s 2021 Final Rule regarding tipped employees and the minimum wage, commonly known as the “80/20 Rule” or the “80/20/30 Rule,” is both contrary to the pertinent statutory text and arbitrary and capricious. As a result, the court vacated the rule.
Background: Minimum Wage, the Tip Credit, Dual Jobs, and 80/20
The Fair Labor Standards Act (the “FLSA”) allows employers to count a portion of tips received by a “tipped employee” toward satisfying the federal minimum wage obligation. The statute defines a “tipped employee” as “any employee engaged in an occupation in which he customarily and regularly receives more than $30 a month in tips.” That portion of the statute has been in place, largely unchanged, since 1966. Whether an employee counts as a “tipped employee” determines whether the employer may pay a reduced hourly wage of as low as $2.13, so long as the tips suffice to make up the difference to minimum wage. Employees who are not tipped employees must receive at least the full minimum wage directly from their employer.
In 1967, the Department of Labor issued a regulation positing that workers may have more than one job with an employer, one of which involves tips and one or more of which does not. The example the Department used was a hotel employee who works some shifts as a server in the hotel restaurant and other shifts as the hotel’s maintenance person. The so-called “dual jobs” regulation took the position that the employer may pay the lower hourly wage, known as taking the tip credit, for the time spent in the tipped occupation of server, but not for the time spent in the untipped maintenance occupation.
The U.S. Departments of Labor (DOL), Health and Human Services, and the Treasury (collectively, the “Tri-Departments”) published a Notice of Proposed Rulemaking (NPRM) on August 3, 2023, to propose new regulations for the Mental Health Parity and Addiction Equity Act (MHPAEA). In particular, the proposed rules would implement amendments to MHPAEA that were passed under the Consolidated Appropriations Act of 2021 (CAA) to require documentation of comparative analyses for Non-Quantitative Treatment Limits (NQTLs). We anticipate that the Tri-Departments will publish new regulations for MHPAEA that will finalize most provisions of the NPRM in the coming days or weeks.
We anticipate that most provisions of the new regulations will finalize the proposed requirements without significant modifications. However, robust public comments were submitted with regard to several key provisions that may cause the Tri-Departments to modify or rescind the proposed rules.
Three of the most controversial provisions from the proposed rules to watch for in the final rules are:
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Quantitative testing for Non-Quantitative Treatment Limits
- Current guidance: Health plans must ensure that financial requirements (such as copays and coinsurance) and quantitative treatment limits (such as day or visit limits) that apply to benefits for the treatment of mental health and substance use disorders (MH/SUDs) are no more stringent than the predominant level of the financial requirement or treatment limit that applies to substantially all medical and surgical benefits. This is a mathematical test that has been well-established for these numerical limits since the first MHPAEA regulations were published in 2011.
- Potential Change: The 2023 NPRM also proposed to apply this mathematical test to NQTLs. If finalized, this new requirement may effectively prohibit most applications of prior authorization, step therapy, and other forms of utilization management for outpatient and prescription drug benefits for MH/SUD conditions.
The Supreme Court’s June 28 decision to overrule the 40-year-old case of Chevron U.S.A. v. Natural Resources Defense Council should not be cause for alarm. It is, however, likely to have implications for employers that are subject to the myriad of workplace laws administered by the United States Department of Labor, the National Labor Relations Board and other executive branch bodies.
Why the Buzz About Chevron?
For decades, courts have relied on the so-called Chevron doctrine—a mandate by which judges were required to defer to agency expertise when handling controversies surrounding Executive Branch policy, but that rule ended with Loper Bright Enterprises et al., v. Raimondo. While the categorical rejection of Chevron—as inconsistent with the responsibility of courts defined in the APA—went farther than most analysts expected, it should be noted, as Justice Neil Gorsuch’s concurrence makes clear, that the Supreme Court hasn’t decided a case on the basis of Chevron since 2016.
The Supreme Court’s June 28 decision to overrule the 40-year-old case of Chevron U.S.A. v. Natural Resources Defense Council should not be cause for alarm. It is, however, likely to have implications for employers that are subject to the myriad of workplace laws administered by the United States Department of Labor, the National Labor Relations Board and other executive branch bodies.
Why the Buzz About Chevron?
For decades, courts have relied on the so-called Chevron doctrine—a mandate by which judges were required to defer to agency expertise when handling controversies surrounding Executive Branch policy, but that rule ended with Loper Bright Enterprises et al., v. Raimondo. While the categorical rejection of Chevron—as inconsistent with the responsibility of courts defined in the APA—went farther than most analysts expected, it should be noted, as Justice Neil Gorsuch’s concurrence makes clear, that the Supreme Court hasn’t decided a case on the basis of Chevron since 2016.
In Starbucks v. McKinney, the Supreme Court of the United States clarified the standard for injunctive relief under Section 10(j) of the National Labor Relations Act (NLRA or the “Act”). The 9-0 decision, authored by Justice Thomas, with Justice Jackson concurring in the judgment and dissenting in part, held that appropriate standard is the four-part test for preliminary injunctive relief articulated in Winter v Natural Resources Defense Council, Inc. 555 U.S. 7 (2008). That test requires the party seeking the injunction to show “[1] he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter, 555 U. S., at 20, 22. This represents a significant change and one that is likely to make it more difficult for the National Labor Relations Board (NLRB or the “Board”) to obtain injunctive relief while an unfair labor practice claim is being litigated.
While four circuits – the Fourth, Seventh, Eighth, and Ninth – already followed the four-factor preliminary injunction test, five other circuits – the Second, Third, Fifth, Tenth and Eleventh, and the Sixth Circuit, where Starbucks v. McKinney originated – had applied a less demanding standard that only required the NLRB to demonstrate that the Board’s Regional Director had concluded that “there is reasonable cause to believe that unfair labor practices have occurred,” and whether injunctive relief is “just and proper.” This two-factor test versus the four-factor test was seen by many to be a lower barrier to injunctive relief.
The Department of Labor's (DOL) May 16, 2024 guidance, Artificial Intelligence and Worker Well-Being: Principles for Developers and Employers, published in response to the mandates of Executive Order 14110 (EO 14110) (Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence), weighs the benefits and risks of an AI-augmented workplace and establishes Principles to follow that endeavor to ensure the responsible and transparent use of AI. The DOL’s publication of these Principles follows in the footsteps of the EEOC and the OFCCP’s recent guidance on AI in the workplace and mirrors, in significant respects, the letter and spirit of their pronouncements.
While not “exhaustive,” the Principles” should be considered during the whole lifecycle of AI” from ”design to development, testing, training, deployment and use, oversight, and auditing.” Although the DOL intends the Principles to apply to all business sectors, the guidance notes that not all Principles will apply to the same extent in every industry or workplace, and thus should be reviewed and customized based on organizational context and input from workers.
While not defined in the Principles, EO 14110 defines artificial intelligence as set forth in 15 U.S.C. 9401(3): “A machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations, or decisions influencing real or virtual environments. Artificial intelligence systems use machine- and human-based inputs to perceive real and virtual environments; abstract such perceptions into models through analysis in an automated manner; and use model inference to formulate options for information or action.”
As featured in #WorkforceWednesday: This week, we’re highlighting recent updates across the state and federal employment landscapes, including the New Jersey Supreme Court’s non-disparagement ruling, the U.S. Department of Labor’s (DOL’s) new artificial intelligence (AI) guidelines, and the DOL’s restructuring of Occupational Safety and Health Administration’s (OSHA’s) regional operations.
As we have previously addressed, the U. S. Department of Labor (DOL) has issued its final rule raising salary thresholds for overtime exemptions under the federal Fair Labor Standards Act (FLSA) effective January 1, 2025.
While there are legal challenges to the final rule, the DOL is offering webinars about the final rule to employers on May 30, 2024 and June 3, 2024.
Those webinars could certainly provide employers with valuable insights into the DOL’s approach.
While the DOL may well encourage employers to make modifications immediately to comply with the final rule, the legal ...
As featured in #WorkforceWednesday: This week, we’re detailing for employers the U.S. Department of Labor’s (DOL’s) expansion of overtime salary limits, the U.S. Equal Employment Opportunity Commission’s (EEOC’s) recently released sexual harassment guidance, and New York State’s unprecedented mandatory paid prenatal leave.
On April 23, 2024, the U.S. Department of Labor (“DOL”) announced a new final rule through which it has significantly raised the bar for businesses to continue to classify their employees as exempt from overtime pursuant to the executive, administrative and professional (“EAP”) and “highly compensated employee” exemptions. Specifically, the DOL announced substantial increases to the salary threshold requirements for these exemptions, which will take effect on a staggered basis on July 1, 2024, and again on January 1, 2025.
The New Salary Thresholds
The salary ...
The United States Department of Labor Office of Labor-Management Standards (“OLMS”) recently signaled an alarming willingness to use its broad subpoena powers under Section 601 of the Labor-Management Reporting and Disclosure Act of 1959, as amended, 29 U.S.C. § 521 (“LMRDA” or “Act”), to examine records of explicitly lawful conduct by employers whose employees may be seeking to unionize. This effort maybe a precursor to OLMS’s plan to significantly expand employer reporting and disclosure obligations under Section 203 of the Act which requires employers and ...
As featured in #WorkforceWednesday: This week, we’re providing an overview of (i) the year-over-year increase in Equal Employment Opportunity Commission (EEOC) lawsuits, (ii) New York’s employee intellectual property (IP) law, and (iii) the collaborative agreement between the Federal Trade Commission (FTC) and the U.S. Department of Labor (DOL).
EEOC Lawsuits Increase
For fiscal year 2023, the EEOC reported a 50 percent increase in lawsuits filed by the agency compared to the previous year. The end of the fiscal year typically brings a spike in EEOC-filed lawsuits ...
As employers throughout New York State are now determining how to comply with the newest State-wide pay transparency law, which took effect on September 17, 2023, the New York State Department of Labor (DOL) released proposed regulations to facilitate the legislative goal of increasing pay transparency. As discussed in depth here and here, the law requires employers to disclose the pay range and job description (if existing) in job postings. Should these proposed regulations pass the 60-day comment period unchanged, there are several highlights worth ...
On September 13, 2023, the United States Department of Labor’s (DOL) Wage and Hour Division (WHD) and the U.S. Equal Employment Opportunity Commission (EEOC) entered a Memorandum of Understanding (MOU) to work together to enforce federal laws and regulations that advance equal employment opportunity and fair pay. The MOU outlines procedures for the agencies to increase their coordination in information sharing, joint investigations, trainings, and outreach efforts.
I. Information Sharing
The MOU allows the agencies to consolidate and share information on issues ...
On August 30, 2023, in one of the U.S. Department of Labor’s most highly anticipated rulemakings of the year, the Wage and Hour Division announced the details of its forthcoming Notice of Proposed Rulemaking regarding the salary requirements of the Fair Labor Standards Act’s overtime exemption for executive, administrative, and professional employees. In short, the Department has elected to go big, with the soon-to-be-published draft rule containing the following key elements:
- Increasing the minimum salary for the basic executive, administrative, and professional ...
After releasing an initial two-page “fact sheet,” Congress publicly posted the bill text of the No Robot Bosses Act (the “Proposed Act”), detailing proposed federal guardrails for use of automated decision-making systems in the employment context. Robert Casey (D-PA), Brian Schatz (D-HI), John Fetterman (D-PA), and Bernie Sanders (I-VT) currently cosponsor the Proposed Act.
It’s time for covered employers to update their Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) posters.
The U.S. Department of Labor (DOL) has issued an updated FLSA Minimum Wage Poster to reflect covered employers’ new lactation accommodation obligations under the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act.
On April 28, 2023, the U.S. Court of Appeals for the Fifth Circuit reversed and remanded a decision from the Western District of Texas declining to issue a preliminary injunction barring the Department of Labor (“DOL”) from enforcing a regulation known as the “80/20/30 rule.”
As we previously reported, on October 29, 2021, the DOL issued a final rule for determining which tipped employees may receive “tip credit” in lieu of receiving the full minimum wage directly from the employer. Under the 80/20/30 rule, employers must pay employees at least the minimum wage if they spend more than 20% of their time on tasks that do not immediately and directly generate tips, including wiping down tables, filling salt and pepper shakers, rolling silverware into napkins, and other duties referred to in the industry as “side work,” or if they spend more than 30 consecutive minutes performing such tasks. The Restaurant Law Center and the Texas Restaurant Association promptly sought a preliminary injunction in the Western District of Texas.
The U.S. Department of Labor (DOL) recently published new resources regarding the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). As we previously explained in detail, the PUMP Act amended the Fair Labor Standards Act (FLSA) to mandate that, unless an employer is specifically exempted under the law, the employer must provide reasonable break time to allow an employee to express breast milk, and must permit the employee to do so in a reasonably private location other than a bathroom.
On October 25, 2022, the Department of Labor extended the comment period for its new proposed rule regarding independent contractor status under the Fair Labor Standards Act. While the comment period was originally set to expire on November 28, 2022, interested parties will now have until December 13, 2022 to submit comments.
In light of the federal court ruling reinstating the Trump-era independent contractor regulation (discussed here), on October 13, 2022, the Department of Labor published a Notice of Proposed Rulemaking regarding independent contractor status under the Fair Labor Standards Act.
work·week | \ ˈwərk-ˌwēk \
noun
Perhaps one of the most important terms of art under the Fair Labor Standards Act (“FLSA”), an employer’s designated workweek impacts nearly every aspect of an employee’s pay – from minimum wage and overtime to application of most exemptions. Let’s break down this concept.
What is a workweek?
The FLSA regulations define workweek as “a fixed and regularly recurring period of 168 hours - seven consecutive 24-hour periods.” Contrary to popular belief, a workweek need not coincide with a calendar week, nor must it align with an employer’s hours of operation. Instead, it can begin on any day and at any hour of the day. However, the key is that once a workweek is determined, it must remain fixed regardless of the employees’ hours worked with limited exception.
On June 15, 2022, the U.S. Court of Appeals for the Fifth Circuit held that COVID-19 does not qualify as a “natural disaster” under the federal Workers’ Adjustment and Retraining Notification (“WARN”) Act, effectively foreclosing one important argument used by employers in defense of COVID-19-related WARN lawsuits. As this is the only appellate court to affirmatively interpret WARN’s “natural disaster” exception, barring a split by other circuits, this case sets an important precedent in ongoing COVID-19-related WARN litigation, as well as WARN suits related to future pandemics.
As COVID-19 restrictions have continued to loosen or be lifted altogether, employees have gradually resumed working in the office—and traveling away from it for work-related reasons. When it comes to travel time in the employment context, the answer to the question, “Do I need to pay for that?” often has no straightforward answer. Rather, under the Fair Labor Standards Act (“FLSA”) and U.S. Department of Labor (“DOL”) regulations, whether time an employee spends traveling is compensable depends on the type of travel. In this month’s Time Is Money segment, we provide a refresher on when and how employers must pay employees for travel time.
As discussed here, in January 2021, in the waning days of the Trump administration, the U.S. Department of Labor issued a Final Rule setting forth for the first time a standard for differentiating employees and independent contractors under the Fair Labor Standards Act. The scheduled effective date of the new rule was March 8, 2021.
A number of years ago, I received a kind note around the holidays from my opposing counsel in a wage-hour class action, thanking me and my firm for being their “partners” in addressing employment issues.
Maybe the word he used wasn’t “partners,” but it was something close to it.
At first, I must admit that I thought he was joking.
Then I realized that this attorney, for whom I have great respect, got it.
He got that employers are not looking to violate employment laws, and that the attorneys who represent them are not trying to help their clients violate the laws.
On December 22, 2021, the New York Department of Labor (“DOL”) adopted rules (“Rules”) implementing the state’s sick leave law (NY Labor Law §196-b, or the “Sick Leave Law”), providing long-awaited clarification of the Sick Leave Law, which went into effect over a year ago on September 30, 2020. The Rules, codified as Section 196 to Title 12 of the NYCRR, were proposed on December 9, 2020, and adopted without change. In addition to providing definitions of terms used in the Sick Leave Law, the Rules address three topics: (i) documentation an employer may require to verify an employee’s eligibility to use sick leave; (ii) how to count the number of employees an employer has for the purposes of determining employees’ sick leave entitlement; and (iii) how to calculate an employee’s accrual of sick leave. In addition, the DOL’s response to public comments it received after the Rule was proposed, explain how carryover of accrued unused sick leave works.
Misclassifying workers as independent contractors rather than employees is a costly mistake. Among the many issues arising from misclassification is potential liability under federal and state minimum wage and overtime laws. As the laws continue to change and develop, so do the risks to contracting entities.
Federal Changes
Last week, as widely reported, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) to Protect Workers from the COVID-19 (see full details in our Insight). Currently the subject of much pending litigation including a Temporary Restraining Order (TRO) and thus, for the time being, in limbo, the ETS is nonetheless a set of federal regulations that, unless overturned, applies to a large proportion of U.S. employers with 100 or more workers and requires those employers to either: (a) mandate that all ...
On Friday, October, 29, 2021, the Department of Labor (DOL) issued a final rule regarding how to determine which tipped employees may receive a “tip credit” in lieu of receiving the full minimum wage directly from the employer. The new rule restores the “80/20” rule rescinded under President Trump, requiring employers to pay employees at least the minimum wage if they spend more than 20% of their time working on tasks that do not specifically generate tips such as wiping down tables, filling salt and pepper shakers, and rolling silverware into napkins, or duties referred to in the industry as “side work.” The rule goes into effect on December 31, 2021 and the change represents continuation of a pattern that has continued across administrations with Presidents adopting and rescinding the rule over the past three administrations.
The doctrine “joint employer” liability has received significant attention in recent months, including on this blog. Under the Fair Labor Standards Act, an employee may be deemed to have multiple employers—each of whom would be liable jointly for all aspects of FLSA compliance, including with regard to the payment of wages—in connection with his or her performance of the same work. During the prior administration, the U.S. DOL issued a rule intended to standardize the parameters of joint employer liability. Months later, however, a federal court invalidated a portion of the new rule, holding that it impermissibly narrowed the scope of the joint employer doctrine. And, in July 2021, the DOL announced its outright repeal of the rule—i.e., whether a business might face joint employer liability will again be governed by the multi-factor “economic reality” test subject to varying judicial interpretations.
President Biden’s $6 trillion 2022 budget proposal focuses on worker protections—including the American Jobs Plan and the American Families Plan. Both of these plans contain labor and numerous employment initiatives. The budget proposes increased funding for the Department of Labor (“DOL”), the Equal Employment Opportunity Commission (“EEOC”), and the National Labor Relations Board (“NLRB” or “Board”).
The 2022 budget calls for $2.1 billion, an increase of $304 million, in DOL’s worker protection agencies. Over the past four years, those agencies ...
On June 21, 2021, the U.S. Department of Labor (DOL) announced a new proposed rule related to when an employer may take a tip credit and pay a lower minimum wage to tipped employees performing so-called tipped and non-tipped duties. The proposed rule appeared in the Federal Register on June 23, 2021 and is open for public comment until August 23, 2021. The proposal shows employers the new road that President’s Biden’s administration is paving, which is a sharp turn away from the Trump administration’s approach.
The Fair Labors Standards Act (FLSA) allows employers to pay ...
As we previously discussed, in early January 2021, the U.S. Department of Labor issued a Final Rule regarding independent contractor status under the Fair Labor Standards Act. On May 5, 2021, in line with the policy goals of the new administration, the Department issued a Final Rule withdrawing the January Final Rule. The withdrawal went into effect on May 6, 2021, upon the publication in the Federal Register (86 FR 24303). The January independent contractor rule was originally to go into effect in March, before the Department issued a notice of proposed rulemaking proposing to ...
As featured in #WorkforceWednesday: This week on our special podcast series, Employers and the New Administration, we look at how the Biden administration’s approach to wage and hour issues will impact employers. Special podcast episodes air every other #WorkforceWednesday.
The Wage and Hour Division of the U.S. Department of Labor (DOL) has already adopted the Biden administration’s commitment to enforcement, its movement against arbitration agreements, and a fresh view on worker classification. What other wage and hour developments can employers expect under ...
As featured in #WorkforceWednesday: This week kicks off Employers and the New Administration, a special podcast series on how the Biden administration’s first 100 days will impact employers. In this episode, attorney David Garland interviews attorney Gregory Keating on what the nomination of Marty Walsh as Labor Secretary means for employers.
The series will air every other week in #WorkforceWednesday and on your preferred podcast platform.
See below for the video and the extended podcast edition. Visit our site for more news.
On January 19, 2021, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) issued an Opinion Letter applying the Department’s recently-issued Final Rule concerning Independent Contractor Status under the Fair Labor Standards Act (the “Final Rule”). This Opinion Letter provides helpful guidance to businesses, especially those in highly-regulated industries, on how to properly structure their relationships with independent contractors under the Fair Labor Standards Act (“FLSA”).
As background, the FLSA’s minimum wage and overtime pay ...
On January 6, 2021, the U.S. Department of Labor released its much-anticipated Final Rule addressing independent contractor status under the Fair Labor Standards Act. The Department indicates that the rulemaking should appear in the Federal Register on January 7, 2021, with an effective date 60 days thereafter.
The Final Rule is, in substance, very similar to the Proposed Rule the Department issued in September 2020 (and discussed here). Under the Final Rule, the key points are as follows:
- The “ultimate inquiry” is whether an individual is “economically dependent” on ...
At the time we are posting this, we are just weeks away from the inauguration of President-Elect Joseph Biden. Although perhaps not at the very top of the list of questions about the forthcoming Biden administration, somewhere on the list has to be this question: “What changes will we see in wage-hour law?”
We don’t have the proverbial crystal ball, but there are a number of issues that the Biden administration may focus on at some point during the next four years, be it through legislation, new rules implemented by the Department of Labor (DOL) or even executive orders. They may ...
As featured in #WorkforceWednesday: The Department of Labor will look very different under President-Elect Biden from how it did under President Trump, and the changes could come in the early days of Biden’s presidency. Attorney Paul DeCamp tells us more.
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The Workforce Bulletin blog is currently edited by Adam S. Forman, Greta Ravitsky, Elizabeth S. Torkelsen, and Jennifer Stefanick Barna.
On September 8, 2020, a federal district court struck down the U.S. Department of Labor’s (“DOL”) Final Rule on joint employer liability, concluding that the Rule violated the Administrative Procedure Act (“APA”) by impermissibly narrowing the definition of joint employment under the Fair Labor Standards Act (“FLSA”), departing from the DOL’s prior interpretations on joint employment without adequate explanation, and otherwise being arbitrary and capricious. We previously blogged about the details of the Final Rule here. The DOL published the Final Rule in ...
Prompted by the many new telework or remote work arrangements that have arisen in response to COVID-19, on August 24, 2020, the Wage and Hour Division of the U.S. Department of Labor (“DOL”) issued Field Assistance Bulletin No. 2020-5 (“Bulletin”) to provide guidance regarding employers’ obligation “to exercise reasonable diligence in tracking teleworking employees’ hours of work.” The guidance, which includes citations to the Fair Labor Standards Act (“FLSA”), the DOL’s interpretive regulations, and federal case law, does not break new ground; ...
While much attention is currently focused on whether Congress will extend, in whole or in part, the emergency $600 increase in unemployment insurance benefits (“UI”) that, until July 31, 2020, had been provided by the CARES Act (“Act”), the U.S. Department of Labor (“DOL”) is continuing to address questions about the other expansions of UI benefits under the Act, most recently, in an advisory letter issued on July 21, 2020 by the DOL’s Employment and Training Administration office (“ETA”). Of particular note, the latest ETA advisory letter instructs that an ...
As featured in #WorkforceWednesday: California provides a detailed COVID-19 employer playbook, and a federal judge vacated parts of the Department of Labor’s Families First Coronavirus Response Act rule.
Video: YouTube, Vimeo, MP4, Instagram.
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If you have questions, please reach out to the author(s).
The Workforce Bulletin blog is currently edited by Adam S. Forman, Greta Ravitsky, Elizabeth S. Torkelsen, and Jennifer Stefanick Barna.
Employers that are fiduciaries of participant-directed individual account plans (such as 401(k) plans) subject to the Employee Retirement Income Security Act of 1974, as amended (‘Plans” and “ERISA”, respectively) should be pleased with the position taken by the Department of Labor (“DOL”) in an information letter dated June 3, 2020 (the “Letter”) addressing the use of private equity investments in designated investment alternatives offered in Plans. The DOL states that, subject to the standards and considerations set forth in the Letter (and summarized ...
On July 20, 2020, the Wage and Hour Division (“WHD”) of the U.S. Department of Labor (“DOL”) published new guidance for businesses reopening amid the COVID-19 pandemic. The guidance is in the form of additions to the WHD’s existing Frequently Asked Questions (“FAQs” or “Guidance”) and addresses issues arising under two leave laws—the Family and Medical Leave Act (“FMLA”), and the Families First Coronavirus Response Act (“FFCRA”)—and wage and hour matters governed by the Fair Labor Standards Act (“FLSA”).
New FMLA FAQs
The WHD added the ...
While the COVID-19 pandemic remains a challenge to employers nationwide, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) continues to field non-COVID-related wage and hour questions. On June 25, 2020, the WHD issued five new opinion letters addressing the outside sales, administrative, and retail or service establishment exemptions under the Fair Labor Standards Act (“FLSA”), as well as the relationship between third-party payments to workers and the FLSA’s minimum wage requirement. Employers should take note of these useful explanations of key ...
The times they are a-changin’ and Washington’s rules relating to overtime pay are changing with them. Effective July 1, 2020, the Washington State Department of Labor & Industries (“L&I”) has updated the criteria for workers to be exempt from receiving overtime pay, paid sick leave, and other requirements under the state Minimum Wage Act. These changes affect executive, administrative, and professional workers, as well as outside salespeople and computer professionals across all industries in Washington State.
Overtime exemption rules generally require “white ...
As employers continue to deal with workplace issues related to COVID-19, you should be aware that the U.S. Department of Labor’s Wage and Hour Division (“WHD”) has indicated that it will be investigating allegations of wage and hour violations that have occurred as a result of the rapid workforce changes undertaken by many organizations earlier this year. Unfortunately, as you may know, the WHD rarely announces those investigations in advance and, instead, employers typically learn of them when a letter arrives announcing 72 hours’ notice to produce payroll records, or a ...
In EBSA Disaster Relief Notice 2020-01, “Guidance and Relief for employee Benefit Plans Due to COVID-19 (Novel Coronavirus) Outbreak” ( “Notice”), the DOL provided sponsors of defined contribution plans subject to ERISA relief from DOL enforcement action for failure to timely forward participant contributions and loan repayments to the plan during the period from March 1, 2020, and to the 60th day following the announced end of the National Emergency. This DOL relief, however, appears to be limited to ERISA violations and does not appear to provide protection from the ...
On May 19, 2020, the U.S. Department of Labor issued two COVID-19 related Enforcement Memos to provide updated guidance to OSHA investigators: (1) Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) (“Revised Recordkeeping Guidance”), which reinstates employers’ recordkeeping obligations for COVID-19 cases (29 CFR Part 1904) and (2) Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) (“Updated Enforcement Response Plan Guidance”), which generally returns to pre-COVID investigation ...
From the time of its original enactment in 1938, the Fair Labor Standards Act has contained an exemption for certain employees of a “retail or service establishment.” In 1961, the Department of Labor’s Wage and Hour Division (“WHD”) issued interpretive guidance to aid in determining whether an establishment is or is not “retail or service” for purposes of what was then the section 13(a)(2) overtime and minimum wage exemption. Part of the test includes whether the business is in an industry in which a “retail concept” exists. See 29 C.F.R. § 779.316. WHD created ...
The COVID-19 pandemic and the efforts to limit its spread caused a sudden and dramatic shutdown of large sections of the U.S. economy. Governmental shelter in place orders requiring non-essential businesses to temporarily close forced untold numbers of businesses to furlough or terminate most, and in many cases all, of their employees with little or no warning. For larger employers, mass layoffs and terminations of operations such as these, would normally trigger notification requirements under the federal Worker Adjustment and Retraining Notification (“WARN”) Act (as ...
The U.S. Department of Labor (DOL) recently published three Unemployment Insurance Program Letters (UIPLs) offering guidance on the administration of separate sections of the Coronavirus Aid, Relief, and Economic Security Act, or the “CARES Act,” that provide for expanded unemployment insurance benefits. While the UIPLs are directed to state agencies, the UIPLs contain helpful information for employers.
UIPL 15-20 provides guidance on the administration of section 2104 of the CARES Act, which authorizes Federal Pandemic Unemployment Compensation (FPUC ...
Generally, the Fair Labor Standards Act (“FLSA”) requires employers to compensate their non-exempt employees for all time that they are required or allowed to perform work, regardless of where and when the work is done. However, an exception exists for small amounts of time that are otherwise compensable work time but challenging to record, otherwise known as the de minimis doctrine. Of course, the million-dollar question is how much time is considered de minimis. Unfortunately, there is no bright-line rule and the answer may differ under federal law and California law, or ...
On April 14, 2020, exactly two weeks after the Families First Coronavirus Response Act (“FFCRA” or “Act”), went into effect and the U.S. Department of Labor (“DOL”) issued a temporary rule (“Rule”) interpreting the paid sick leave and emergency family and medical leave provisions of the Act, the Attorney General for the State of New York, Letitia James (“AG”), filed a legal challenge to that Rule. [1] In the lawsuit against the DOL, the AG alleges that various provisions of the Rule violate both the statutory language and the intent of the FFCRA.
As we previously ...
As we previously reported in our “Summary of OSHA Guidance on Preparing Workplaces for COVID-19,” the U.S. Department of Labor (“DOL”) has provided detailed directions for employers with respect to ensuring an OSHA-compliant workplace during the COVID-19 pandemic. On April 10, 2020, the DOL issued a memorandum providing interim guidance on enforcement of OSHA’s recordkeeping requirements (29 CFR Part 1904) as they relate to recording cases of COVID-19. The memorandum, which is “intended to be time-limited to the current public health crisis,” became effective ...
UPDATE: On August 10, 2020, the NJDOL formally adopted the temporary rule without change.
On March 20, 2020, New Jersey Governor Phil Murphy signed legislation (“Law”) prohibiting employers from taking any adverse employment action against employees who take, or request, time off due to an infectious disease that could affect others at work based on a written recommendation of a New Jersey licensed medical professional. The Law, which we summarized in a previous article, became effective upon enactment.
On April 1, the New Jersey Department of Labor and Workforce Development ...
The U.S. Department of Labor has again updated its compliance assistance for the Families First Coronavirus Response Act (“FFCRA”), in the form of “Questions and Answers.” This post summarizes the most recent Questions and Answers. Previous summaries can be found here and here.
Some of the newest answers include the following:
- Question 60: Clarifies that shelter-in-place and stay-at-home orders can qualify as federal, state, or local quarantine or isolation orders for purposes of leave under FFCRA.
- Question 61: Clarifies that an individual is eligible for paid sick ...
The U.S. Department of Labor (“DOL”) continues to update its compliance assistance for the Families First Coronavirus Response Act (“FFCRA”), in the form of “Questions and Answers.” The DOL posted a temporary rule issuing regulations pursuant to the FFCRA on April 1, 2020; while we are digesting the temporary rule and preparing a forthcoming advisory, we wanted to highlight some of the important insights of the updated FAQs. The DOL published its initial guidance on March 24, 2020, summarized in a previous post, covering the FFCRA’s paid sick and paid family leave ...
On March 24, 2020, the Wage and Hour Division (“WHD”) of the U.S. Department of Labor (“DOL”) issued initial guidance (“Guidance”) on the Families First Coronavirus Response Act (“FFCRA” or the “Act”), which we detailed in a previous Advisory. In short, the Act requires private employers with fewer than 500 employees (“covered employers”) to provide paid sick and family leave for certain COVID-19 related absences and includes a tax credit for employers for the cost of the paid leave.
The Guidance comprises (i) a Fact Sheet for Employers, (ii) a Fact Sheet ...
The Connecticut Department of Labor issued guidance entitled “Frequently Asked Questions About Coronavirus (COVID-19) For Workers and Employers” (last updated on March 20, 2020 (the “Guidance”). The Guidance provides no new legal requirements or amendments to existing laws, but instead, analyzes issues raised by the COVID-19 pandemic under existing laws in the areas of unemployment insurance, paid sick leave, wage and hour law and the Connecticut Family and Medical Leave Act (“CTFMLA”).
Unemployment Insurance Benefits for Shut Downs and Quarantines
The ...
Our colleagues Jeffrey H. Ruzal, Denise M. Dadika, Maxine H. Neuhauser, and Eduardo J. Quiroga have co-authored an Act Now Advisory that will be of interest to our readers: "Department of Labor Issues OSHA, Wage/Hour, and FMLA Guidance Addressing COVID-19."
Following is an excerpt:
In response to the spreading 2019 novel coronavirus (“COVID-19”) pandemic, which has now been declared a national emergency by President Trump, the Department of Labor has released guidance to employers, summarized more fully below:
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- The Occupational Safety and Health Administration ...
We encourage our readers to visit Workforce Bulletin, the newest blog from our colleagues at Epstein Becker Green (EBG).
Workforce Bulletin will feature a range of cutting-edge issues—such as sexual harassment, diversity and inclusion, pay equity, artificial intelligence in the workplace, cybersecurity, and the impact of the coronavirus outbreak on human resources—that are of concern to employers across all industries. EBG's full announcement is here.
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On Thursday, January 16, 2020, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) published in the Federal Register the much-anticipated Final Rule regarding joint employer status under the Fair Labor Standards Act. This rule completes the rulemaking process initiated in early April of last year, when WHD published its Notice of Proposed Rulemaking (“NPRM”), which we discussed here.
The new standards reflected in the Final Rule become effective, barring court action in the interim, on March 16, 2020. This interval of just 342 days from publication of the NPRM ...
In its first installment of opinions letters in 2020, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) addressed two issues under the Fair Labor Standards Act (“FLSA”): (i) the salary basis requirements in the context of per-project compensation arrangements and (ii) calculation of overtime pay for employees who receive nondiscretionary lump-sum bonus payments earned over time and not tied to a specific period. (A third letter, FMLA2020-1-A, considered FMLA requirements vis-à-vis public employees.) While neither of these FLSA opinion letters ...
It seems as though there is a minefield that employers must navigate to ensure that they fulfill their wage and hour obligations to their employees. Employers must somehow comply with overlapping and seemingly contradictory federal, state, district, county, and local requirements. The wave of civil actions that are filed against employers alleging wage and hour violations is not slowing. And given the potential financial consequences for non-compliance, illustrated in part by a $102 million award for technical paystub violations, meeting these requirements must be a ...
As winter once again approaches, employers, particularly those in cold-weather states, face the recurring specter of inclement weather affecting business operations and employee attendance. While the weather may create stress and disruption for a business and its people, employers must not lose sight of the fact that the rules governing how you pay your employees continue to apply throughout any weather event.
There are five main rules that employers need to keep in mind when bad weather strikes:
1. If a business closes for any amount of time less than a full workweek, it must ...
On December 16, 2019, the United States Department of Labor’s Wage and Hour Division (“WHD”) published in the Federal Register a Final Rule updating the Fair Labor Standards Act (“FLSA”) regulations that govern, among other things, whether certain types of pay and benefits constitute part of a non-exempt employee’s regular rate of pay for purposes of calculating overtime under federal law. Under section 7(e) of the FLSA, an employee’s regular rate for any given workweek “shall be deemed to include all remuneration for employment paid to, or on behalf of the ...
Fiduciaries of employee benefit plans subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) that appoint investment managers (“Appointing Fiduciaries”) will be interested in the opinion of the U.S. District Court for the Western District of Pennsylvania in Scalia v. WPN Corporation, et al (“WPN”) regarding their duty to monitor investment fiduciaries. Given the potential risk related to a breach this fiduciary duty, the WPN opinion is likely to be an important one for Appointing Fiduciaries.
In WPN, the Department of Labor alleged ...
After a false start three years ago, the federal Department of Labor (“DOL”) will finally be rolling out an increased minimum salary threshold for employees qualifying under the “white collar” exemptions. The increase in the salary threshold for professional, administrative, and executive exemptions (making up the “white collar” exemptions) under the Federal Fair Labor Standards Act (“FLSA”) will become effective on January 1, 2020.
In order to qualify for one of these exemptions, there are three elements to meet:
- The employee must be paid on a salary basis ...
On August 26, 2019, we wrote of the plan by the U.S. Department of Labor’s Wage and Hour Division (“WHD”) to update the Fair Labor Standard Act (“FLSA”) regulations on calculating overtime pay for salaried non-exempt workers to allow employers to include additional forms of compensation in the so-called “fluctuating workweek” calculations. Under a fluctuating workweek calculation, an employer divides all of an employee’s relevant compensation for a given workweek by the total number of hours the employee worked in the week to derive the regular rate for that ...
Rules relating to tip credit and pooling have resulted in significant debate among legislators, regulators, and the courts, leading to confusion, further litigation, and, in many cases, substantial liability or settlements involving employers that operate in the hospitality industry. Today, the U.S. Department of Labor (“DOL”) published proposed rulemaking that aims to bring greater clarity to the morass of tip-related legislation, as well as previous agency rules and interpretations. I describe below some of the notable elements of these proposed rules.
The proposed ...
The U.S. Department of Labor’s Wage and Hour Division (“WHD”) recently issued an opinion letter regarding the designation of FMLA leave in the context of employees covered by collective bargaining agreements (“CBA”) with a union. This opinion letter provides helpful clarification on an issue that is often a source of confusion for employers (as well as for unions).
Overview
Earlier this year, the WHD advised that once an eligible employee communicates a need to take leave for a FMLA-qualifying reason, an employer may not delay the designation of FMLA-qualifying leave as ...
In the fall of 2016, before the Obama administration increases to the minimum salary were set to go into effect (spoiler alert – they didn’t!), we wrote in this space about the challenges facing employers in addressing those expected changes: “Compliance with the New DOL Overtime Exemption Rule May Create Unexpected Challenges for Employers.”
As we wrote earlier this week, the current administration’s changes are set to go into effect on January 1, 2020: “U.S. Department of Labor Issues Long-Awaited Final Rule Updating the Compensation Requirements for the FLSA’s ...
What is considered compensable travel time pursuant to the Fair Labor Standards Act (“FLSA”) is not always clear or intuitive to employers, even for those who usually have a good handle on wage and hour laws. This blog post hopefully will simplify the requirements set forth in the U.S. Department of Labor’s (“DOL”) regulations and interpretive guidance to help clarify when employees must be paid for travel time.
Ordinary Home-to-Work Travel
Likely not a surprise for most employers, employees are not entitled to pay for time that they normally spend commuting between their ...
For the past four-plus years, the U.S. Department of Labor (“DOL”) has actively pursued revisions to the compensation requirements for the executive, administrative, and professional exemptions to the Fair Labor Standards Act’s overtime requirement. On September 24, 2019, DOL issued its Final Rule implementing the following changes, effective January 1, 2020:
- The new general minimum salary for these exemptions increases from the current level of $455 per week ($23,660 per year) to $684 per week ($35,568 per year).
- The new minimum annual compensation threshold for the ...
On August 22, 2019, in Trina Ray et al. v. County of Los Angeles and Trina Ray et al. v. Los Angeles County Department of Public Social Services, Case Numbers 17-56581 and 18-55276, the U.S. Court of Appeals for the Ninth Circuit ruled that home care workers may sue Los Angeles County for unpaid overtime under the Fair Labor Standards Act (“FLSA”).
Until recently, California home care workers (also known as companions) whose wages are paid by state or county programs were exempt from state and federal overtime laws. Beginning on January 1, 2015, however, a new Department of Labor ...
As part of its spring 2019 regulatory agenda, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) will consider a proposed revision to the Fair Labor Standard Act’s (“FLSA”) regulations on calculating overtime pay for workers whose hours fluctuate from week to week.
Generally, non-exempt employees covered by the FLSA must receive overtime pay for hours worked in excess of 40 in a workweek at a rate at least time and one-half their regular rates of pay – the standard calculation of overtime. However, the FLSA provides an alternative method of calculating ...
The U.S. Department of Labor’s Wage and Hour Division (“WHD”) shows no signs of fatigue as it releases two new opinion letters on the Fair Labor Standards Act (“FLSA”) within the first week of August. These opinion letters address the FLSA’s partial overtime exemption on a “work period basis” and the status of public agency volunteers. As we have previously advised, employers should read the WHD’s opinion letters carefully and consult with experienced counsel with any questions about their practices vis-à-vis WHD interpretive guidance.
FLSA Section 7(k)
As ...
The U.S. Department of Labor’s Wage and Hour Division (“WHD”) has issued an opinion letter addressing the compensability of a long-haul truck driver time in a truck’s sleeper berth during multi-day trips. While this question is highly fact-specific, the WHD’s response offers a useful refresher on the widely applicable Fair Labor Standards Act (“FLSA”) concepts of compensability of waiting, sleeping, and traveling time.
In Opinion Letter FLSA2019-10, issued on July 23, 2019, the employer operates a fleet of trucks, licensed by the Department of Transportation to ...
After a brief, two-month hiatus, the Wage and Hour Division of the U.S. Department of Labor (“WHD”) has issued another round of opinion letters answering various questions submitted by the public. Specifically, these opinion letters address the calculation of overtime pay for nondiscretionary bonuses, the application of the highly compensated employee exemption to paralegals, and rounding hours worked under the Service Contract Act (“SCA”). This guidance marks the first issued by the new Wage and Hour Administrator Cheryl Stanton, who has been in the seat since April.
The Division of Advice of the National Labor Relations Board (“NLRB” or “Board”), in an Advice Memorandum, dated April 16, 2019 (“Advice Memo”),[1] has concluded that “drivers providing personal transportation services” using Uber Technologies Inc.’s “app-based ride-share platforms” were independent contractors and not employees, as the drivers had alleged in a series of unfair labor practice charges filed in 2014, 2015, and 2016. Based on the Division of Advice’s analysis of the relationship between Uber and the drivers, the General Counsel’s ...
Hospitality remains at the forefront of demanding industries where employers must be ever vigilant in their efforts to ensure full compliance with federal, state, and local employment laws and regulations. We highlight below five new or upcoming areas on which employers should focus.
Hospitality Employers May Soon Face a Compliance Challenge: The New Proposed DOL Salary Threshold for “White Collar” Exemptions
The Department of Labor (“DOL”) has proposed a new rule that would increase the salary threshold for most “white collar” ...
On April 29, 2019, the U.S. Department of Labor (“DOL”) issued an opinion letter concluding that workers providing services to customers referred to them through an unidentified virtual marketplace are properly classified as independent contractors under the Fair Labor Standards Act (“FLSA”).
Although the opinion letter is not “binding” authority, the DOL’s guidance should provide support to gig economy businesses defending against claims of independent contractor misclassification under the FLSA. The opinion letter may also be of value to businesses ...
On April 29, 2019, the U.S. Department of Labor (“DOL”) issued an opinion letter concluding that workers providing services to customers referred to them through an unidentified virtual marketplace are properly classified as independent contractors under the Fair Labor Standards Act (“FLSA”).
Although the opinion letter is not “binding” authority, the DOL’s guidance should provide support to gig economy businesses defending against claims of independent contractor misclassification under the FLSA. The opinion letter may also be of value to businesses ...
Our colleagues Adriana S. Kosovych, Jeffrey H. Ruzal, and Steven M. Swirsky at Epstein Becker Green have a post on the Hospitality Labor and Employment Law blog that will be of interest to our readers: “DOL Proposes New Rule to Determine Joint Employer Status under the FLSA.”
Following is an excerpt:
In the first meaningful revision of its joint employer regulations in over 60 years, on Monday, April 1, 2019 the Department of Labor (“DOL”) proposed a new rule establishing a four-part test to determine whether a person or company will be deemed to be the joint employer of persons ...
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