Law and the Workplace

Category Archives: FLSA

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DOL Releases New Independent Contractor Rule

The U.S. Department of Labor issued its long-awaited new rule on independent contractor classification on January 9, 2024.  It will be published in the Federal Register on January 10, and take effect on March 11, 2024. With only a few substantive clarifications (discussed below), the Final Rule is identical in all material respects to the … Continue Reading

COVID Screening Time Not Compensable, Says Illinois District Court

In an opinion issued on December 7, 2023, a federal district court in the Northern District of Illinois held that time spent in COVID screening activities was not compensable under federal or Illinois law. In the underlying collective and class action, Johnson v. Amazon.com Services, LLC, the plaintiffs—warehouse employees whose job duties included moving boxes, … Continue Reading

Proposed New Federal Overtime Rule: Update

The Notice of Proposed Rulemaking with respect to the U.S. Department of Labor’s proposed updated overtime exemptions rule was published in the Federal Register on September 8, 2023.  The 60-day public comment period closes on November 7, 2023.  Comments can be submitted electronically here, and all submitted comments can be viewed here. Proskauer’s Wage and Hour Group is … Continue Reading

DOL Proposes Updated Overtime Exemptions Rule, Raising Minimum Salary to $55,086

On August 30, 2023, the U.S. Department of Labor (“DOL”) released its proposed new rule on the “white collar” overtime exemptions.  The new rule, which would be codified in a revised 29 C.F.R. Part 541, will be published shortly as a Notice of Proposed Rulemaking in the Federal Register, at which time a public comment … Continue Reading

$22 Million FLSA Verdict Illustrates the Significance of Brief Unpaid Work Tasks

On May 9, the U.S. Department of Labor (“DOL”) secured its largest Fair Labor Standards Act (“FLSA”) jury verdict in history, when a jury in the Eastern District of Pennsylvania awarded $22 million to a class of approximately 7,500 workers for unpaid time spent on pre- and post-shift activities.  The case is Su v. East … Continue Reading

Missed Payroll in the Wake of Bank Collapse:  Implications and Strategies

In the wake of the recent news of bank failures, businesses—and their investors—are rightly concerned about the implications of a missed or delayed payroll.  Let’s look at those implications, and strategies for minimizing risk. Obligation to Make Payroll Under federal and most state laws, employers have both timing-of-pay and frequency-of-pay obligations.  Under most of these … Continue Reading

Regular Rate Update: California

Earlier this month, the U.S. Court of Appeals for the Ninth Circuit examined whether certain types of employee compensation—shift differentials and holiday premiums—are includable in the “regular rate” for purposes of calculating overtime pay under California law.  You can read our blog about the decision in our California Employment Law Update here. For a crash … Continue Reading

DOL’s New Independent Contractor Rule: A Return to 2020

It’s been a bumpy road for the federal rules on independent contractor status under the Fair Labor Standards Act. In the courts, the test has always focused on the “economic reality” of the relationship between a worker and the entity that benefits from the services provided to determine whether the worker is an employee or … Continue Reading

Federal District Court Says Pre-Shift COVID Screening Time Not Compensable

In the first reported decision we’ve seen addressing the issue head on, a federal district court in California dismissed a putative collective action claim under the Fair Labor Standards Act (FLSA) seeking payment for time spent in pre-shift COVID screening. Prior to clocking in each day, the plaintiff—a non-exempt truck driver whose job duties included … Continue Reading

Do We Have to Pay for That?  Part 2—Travel and Commute Time (in a Post-Pandemic World)

In this blog series, we look at a variety of activities and discuss whether an employer has to pay its non-exempt (i.e., overtime-eligible) employees for their time spent engaging in them.  We’ll focus on federal law, but as with all wage and hour issues, applicable state and local laws must be considered as well.  Also, … Continue Reading

New Federal Vaccine Rule:  Wage and Hour Implications

UPDATE: On January 13, 2022, the U.S. Supreme Court granted applications to stay OSHA’s Emergency Temporary Standard pending review on the merits by the Sixth Circuit, and if writs of certiorari are subsequently sought to the U.S. Supreme Court, pending the Court’s disposition of such writs.  Click here to read more about the Court’s decision.  On … Continue Reading

Do We Have to Pay for That?  Part 1—COVID-19 Vaccination, Testing, and Screening Activities (Updated Jan. 13, 2022)

In this blog series, we’ll look at a variety of activities and discuss whether an employer has to pay its non-exempt (i.e., overtime-eligible) employees for their time spent engaging in them.  We’ll focus on federal law, but as with all wage and hour issues, applicable state and local laws must be considered as well.  Also, … Continue Reading

Pennsylvania Employers Must Pay for Time Spent in Security Screenings

On July 21, 2021, answering a question certified by the United States Court of Appeals for the Sixth Circuit, the Pennsylvania Supreme Court held that time spent by employees waiting to undergo and undergoing mandatory security screening on an employer’s premises is compensable “hours worked” under Pennsylvania law.  The decision from the Commonwealth’s high court, … Continue Reading

DOL Rescinds Trump-Era Joint Employer Rule

The U.S. Department of Labor announced on July 29 that it will rescind the March 2020 rule on Joint Employer Status under the Fair Labor Standards Act (the “2020 Rule”).  The DOL’s action removes the regulations established by the 2020 Rule and will become effective on September 28, 2021. 2020 Joint Employer Rule The 2020 … Continue Reading

Trump-Era Independent Contractor Rule Never to See Light of Day

Remember the Trump administration’s new rule for classifying workers as independent contractors?  The one issued on January 6, 2021, only weeks before President Biden took office?  The one that would have revised the U.S. Department of Labor’s test for determining worker status under the Fair Labor Standards Act to focus on two “core factors” (control … Continue Reading

DOL and Liquidated Damages: The Breakup Only Lasted 9 Months

On April 9, 2021, the U.S. Department of Labor (DOL) rescinded the Trump-era enforcement practice of abstaining from seeking liquidated damages in connection with pre-litigation investigations and settlements of wage and hour claims.  In Field Assistance Bulletin No. 2021-2, issued by the Wage and Hour Division’s Principal Deputy Administrator, Jessica Looman, the agency announced that … Continue Reading

Business Groups Challenge Biden Administration’s Delay of Trump-era Independent Contractor Rule

In a complaint filed on March 26, 2021, business groups challenged a U.S. Department of Labor March 4, 2021 final rule to delay the effective date of the Trump-era regulation on independent contractor classification.  As we previously reported, that Trump-era rule, which was finalized two weeks before President Biden took office, was initially scheduled to … Continue Reading

Biden Administration Wage and Hour Update:  50 Days In…

We’re 50 days into the Biden administration.  Here’s an update on where things stand with respect to wage and hour law at the federal level: On March 11, 2021, the U.S. Department of Labor’s Wage and Hour Division (WHD)—as expected—announced its proposals to rescind the Trump-era rules on independent contractor classification and joint employment. WHD’s … Continue Reading

DOL Takes First Step to Revisit Independent Contractor and Tip Rules

In accordance with the Biden administration’s January 20 regulatory freeze memorandum, the U.S Department of Labor issued proposals to delay the effective dates of the Final Rules on independent contractor classification and tip regulations by 60 days, to allow the agency “the opportunity to review and consider the questions of law, policy, and fact raised … Continue Reading

DOL Ends PAID Program

On January 29, the U.S. Department of Labor announced that it was discontinuing the Payroll Audit Independent Determination (“PAID”) program, effective immediately.  Under the program, which began in 2018, employers could self-report wage and hour violations to the DOL with the promise that the agency would supervise a settlement of the violations without seeking liquidated … Continue Reading

DOL Begins Withdrawal of Trump-Era Opinion Letters

As expected, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced the withdrawal of three opinion letters issued in the waning days of the Trump administration.  The opinion letters being withdrawn are: FLSA2021-4, which addressed whether a restaurant may institute a tip pool under the Fair Labor Standards Act that includes both servers, … Continue Reading
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