Category Archives: FLSA
Subscribe to FLSA RSS FeedMissed 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
SCOTUS Takes a Pass on “Gap Time” Dispute
It’s two months into argument season at the Supreme Court, and we’re always keeping our fingers crossed that the justices will take up a wage and hour issue and clear up some ambiguities in the law or a circuit split. Top billing this SCOTUS term goes to Helix Energy Solutions Group, Inc. v. Hewitt, in … 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
An Updated Federal Overtime Rule: When’s It Coming?
Twice a year (in the spring and the fall), each federal agency publishes a “Regulatory Agenda” that discloses the proposal and final rules it has recently issued, together with those that it plans to issue. Back in the fall of 2021, the U.S. Department of Labor’s Wage and Hour Division noted in the agenda that … 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
Paying Wages in Pennies or Chicken—Cool or Not Cool?
Who says wage and hour law is boring? Not us. We came across two wage and hour stories this year that are too awesome not to share. Auto-Repair Shop Owner Pays Employee’s Final Wages in Pennies, Is Sued by DOL As the New York Times reported back in January, the U.S. Department of Labor filed … 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
DOL Rescinds Trump-Era Joint Employer Rule
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
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
DOL Begins Withdrawal of Trump-Era Opinion Letters
Biden DOL Tosses Trump-Era “PRO Good Guidance Rule”
White House “Regulatory Freeze” Memo Dooms DOL Independent Contractor Rule
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
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
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
