Law and the Workplace

Category Archives: FLSA

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Regular Rate Update: California

By Allan Bloom on Posted in FLSA, Wage and Hour
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

By Allan Bloom on Posted in Biden Administration Coverage, FLSA, Independent Contractor, Misclassification, Wage and Hour
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

By Allan Bloom on Posted in FLSA, Wage and Hour
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)

By Allan Bloom on Posted in FLSA, Wage and Hour
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

By Allan Bloom on Posted in Biden Administration Coverage, Coronavirus, FLSA, Wage and Hour, Workplace Policies and Procedures, Workplace Safety
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)

By Allan Bloom on Posted in Class/Collective Action, FLSA, Wage and Hour
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

By Allan Bloom and Eric Novak on Posted in Class/Collective Action, FLSA, Wage and Hour
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

By Heylee Bernstein and Allan Bloom on Posted in Biden Administration Coverage, FLSA, Independent Contractor, Wage and Hour
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

By Allan Bloom on Posted in Biden Administration Coverage, FLSA, Wage and Hour
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

By Allan Bloom on Posted in Biden Administration Coverage, FLSA, Wage and Hour
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

By Allan Bloom and Eric Novak on Posted in Biden Administration Coverage, FLSA, Independent Contractor, Wage and Hour
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…

By Allan Bloom on Posted in Biden Administration Coverage, FLSA, Independent Contractor, Wage and Hour
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

By Allan Bloom on Posted in Biden Administration Coverage, FLSA, Wage and Hour
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

By Allan Bloom on Posted in Biden Administration Coverage, FLSA, Wage and Hour
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

By Allan Bloom on Posted in Biden Administration Coverage, FLSA, Independent Contractor, Wage and Hour
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

Biden DOL Tosses Trump-Era “PRO Good Guidance Rule”

By Allan Bloom on Posted in Biden Administration Coverage, FLSA, Wage and Hour
As expected, one of the first orders of business from the U.S. Department of Labor under the Biden administration was to scrap the 2020 “PRO Good Guidance Rule,” which imposed heightened burdens on the agency in connection with issuing guidance. The rule, issued last August in response to Trump’s Executive Order 13891—which directed federal agencies … Continue Reading

White House “Regulatory Freeze” Memo Dooms DOL Independent Contractor Rule

By Allan Bloom on Posted in Biden Administration Coverage, FLSA, Wage and Hour
As expected, the White House issued a memorandum to the heads of all executive departments and agencies within the first few hours after President Biden’s inauguration on January 20, requesting that they halt all non-emergency rulemaking and regulatory activity pending review by the new administration. The memo asks the executive agencies, which include the U.S. … Continue Reading

DOL Issues Opinion Letters on Administrative Exemption and Ministerial Exception

By Allan Bloom on Posted in FLSA, Wage and Hour
The U.S. Department of Labor’s Wage and Hour Division (WHD) issued two new opinion letters on January 8, 2021, bringing the number of “lame duck” wage and hour opinion letters—issued since Election Day 2020—to six. In FLSA2021-1, WHD determined that account managers at a life sciences manufacturer qualify for the FLSA’s administrative exemption.  The account … Continue Reading

Trump DOL Issues Two More “Lame Duck” Opinion Letters, on Home-to-Office Travel Time and Live-In Caregivers

By Allan Bloom on Posted in FLSA, Wage and Hour
On December 31, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued two opinion letters—one on home-to-office travel time and one on live-in caregivers.  Such “lame duck” opinion letters—issued post-Election Day when there is a change in both administration and political party—were at one point in recent memory quite uncommon.  The Carter … Continue Reading

DOL’s New Opinion Letters Examine Rules on Voluntary Training Time, Travel Time

By Allan Bloom on Posted in FLSA, Wage and Hour
On November 3, 2020, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) issued new opinion letters addressing the compensability of time spent by employees attending voluntary training programs and in work-related travel. The rules at issue only apply to non-exempt (e.g., overtime-eligible) employees.  If the time is considered “hours worked” under the FLSA, … Continue Reading
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