Law and the Workplace

Category Archives: Wage and Hour

Subscribe to Wage and Hour RSS Feed

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

[Podcast]: DOL’s Proposed Rule on Independent Contractors

By Harris Mufson and Allan Bloom on Posted in Independent Contractor, The Proskauer Brief Podcast, Wage and Hour
In this episode of The Proskauer Brief, partners Harris Mufson and Allan Bloom discuss the U.S. Department of Labor’s proposed new rule on independent contractor classification.  In recent years, the misclassification of workers as independent contractors has been the subject of a number of private lawsuits and investigations by government agencies.  This is true for traditional industries and … Continue Reading

DOL Reiterates That Hours Need Not Fluctuate Above and Below 40 in Fluctuating Workweek Method of Pay

By Allan Bloom on Posted in FLSA, Wage and Hour
SchedulingIn an opinion letter issued on August 31, 2020, the U.S. Department of Labor restated its position that an employee’s hours need not fluctuate above and below 40 hours to qualify for the fluctuating workweek (“FWW”) method of calculating overtime pay in 29 C.F.R. § 778.114. Under the FWW method of pay, an overtime-eligible employee … Continue Reading

DOL Announces Substantial Changes to Guidance Practices

By Allan Bloom and Jordan Glassberg on Posted in Wage and Hour
On August 28, 2020, the U.S. Department of Labor (“DOL”) published in the Federal Register a final rule that substantially revises its practices with respect to guidance documents.  The “Promoting Regulatory Openness through Good Guidance Rule,” referred to as the “PRO Good Guidance Rule,” implements President Trump’s Executive Order 13891, which directed federal agencies to … Continue Reading

DOL Guidance Reminds Employers of Obligations to Track and Pay For Remote Work

By Allan Bloom on Posted in FLSA, Wage and Hour
On August 24, 2020, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) issued a Field Assistance Bulletin (“FAB”) providing guidance on employers’ obligations under the Fair Labor Standards Act (“FLSA”) to track and pay for the hours of compensable work performed by employees who are working remotely.  While timely in light of the … Continue Reading

DOL Releases Additional COVID-19 Guidance Related to FFCRA, FMLA and FLSA

By Guy Brenner, Arielle E. Kobetz, Heylee Bernstein and Laura Fant on Posted in Coronavirus, FLSA, Leaves of Absences, Wage and Hour
As we have previously reported, the United States Department of Labor (DOL) continues to update its COVID-19 guidance. Most recently, on July 20, 2020, the DOL issued additional Q and A guidance related to COVID-19 and the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response … Continue Reading

DOL To Refrain From Seeking Liquidated Damages in Most Pre-Litigation Settlements

By Allan Bloom and Samantha Shear on Posted in FLSA, Wage and Hour
SchedulingEffective July 1, 2020, the U.S. Department of Labor (DOL) will pull back on seeking liquidated damages in pre-litigation settlements of wage claims and investigations.  The change in policy, announced in Field Assistance Bulletin 2020-2, is significant, as liquidated damages can equal 100% of the back pay deemed to be owing, potentially resulting in “double … Continue Reading

Wage and Hour Division Modifies Rules For FLSA’s Retail Sales Exemption

By Allan Bloom, Rachel Philion and Dominique Kilmartin on Posted in Wage and Hour
On May 19, 2020, the United States Department of Labor’s Wage and Hour Division (WHD) implemented a final rule withdrawing partial lists of establishments that it previously interpreted as either having “no retail concept” or possibly having a retail concept for purposes of the Fair Labor Standards Act’s (FLSA) Section 7(i) overtime exemption for commissioned … Continue Reading

SJC Finds Commissions Lost Due to Retaliation Are Subject to Trebling

By Scott Faust and Heylee Bernstein on Posted in Litigation and Arbitration, Wage and Hour
In a February 12, 2020 decision, Parker v. EnerNOC, Inc., SJC-12703, the Massachusetts Supreme Judicial Court held that the full commission which would have been due to an employee had she not been retaliated against and terminated is a “lost wage” eligible to be trebled under the Wage Act. While employed by EnerNOC, the plaintiff … Continue Reading

Sweeping Changes Coming to Colorado Wage and Hour and Vacation Pay Rules

By Evandro Gigante and Laura Fant on Posted in Vacation policy, Wage and Hour
State of Colorado Seal**Update: The Department has adopted the regulations as of January 22, 2020.  You can read more about the final adoption here.** The Colorado Department of Labor and Employment (the “Department”) has published proposed regulations that would make significant changes to the state’s wage and hour laws. The proposed provisions, collectively termed the Colorado Overtime & … Continue Reading

Second Circuit: Offers of Judgment on FLSA Claims Do Not Require Cheeks Review

By Allan Bloom and Dominique Kilmartin on Posted in Wage and Hour
On December 6, 2019, a divided Second Circuit panel concluded that settlement proposals in accepted offers of judgment under FRCP 68 are not subject to judicial review and approval.  Mei Xing Yu et al. v. Hasaki Restaurant Inc., No. 17-3888 (2d Cir. Dec. 6, 2019).  The decision departs from the conventional view that settlements of … Continue Reading

Pennsylvania Supreme Court: Fluctuating Workweek Method of Overtime Pay is Unlawful

By Allan Bloom and Abigail Rosenblum on Posted in FLSA, Wage and Hour
On November 20, 2019, the Pennsylvania Supreme Court ruled that the fluctuating workweek (“FWW”) method of calculating overtime pay owed to salaried workers is prohibited by state law. Chevalier v. General Nutrition Centers Inc., Pennsylvania Supreme Court, No. 22-WAP-2018. Under the FWW method of pay, an overtime-eligible employee receives a fixed salary for all hours … Continue Reading

Fewer Than 100 Days Until the New Overtime Rule Takes Effect: Is Your Company Ready?

By Allan Bloom on Posted in FLSA, Wage and Hour
On January 1, 2020, the new federal overtime rule takes effect.  Other than in states with already-higher minimum salaries for exemption (which include California and, for certain types of employees, New York), employers will be required to pay most executive, administrative, and professional employees at least $684 per week ($35,568 per year).  Are you ready for … Continue Reading

The New Federal Overtime Rule:  What You Need to Know

By Allan Bloom on Posted in FLSA, Wage and Hour
The U.S. Department of Labor issued its final rule amending the overtime regulations today, without any significant changes from the proposed rule the agency issued in March 2019.  Here’s the bottom line: The salary minimum for exemption as an executive, administrative, or professional employee will jump from $455 per week ($23,660 per year) to $684 … Continue Reading

EEOC Will Not Seek to Renew Component 2 (Pay and Hours Data) Requirements for Future EEO-1 Reports

By Guy Brenner, Kate Gold and Mark A. Linscott on Posted in Wage and Hour, Workplace Policies and Procedures
The EEOC announced today, September 12, 2019, that it “is not seeking to renew Component 2 of the EEO-1” in a notice published on the Federal Register. As we have previously reported, Component 2 of the EEO-1 report requires employers with over 100 employees to report its employees’ compensation and hours worked (sorted by pay … Continue Reading

New Guidance on EEO-1 Component 2 Data Submissions For Companies Involved in Corporate Transactions

By Guy Brenner, Kate Gold and Jordan Simon on Posted in Wage and Hour, Workplace Policies and Procedures
The Equal Employment Opportunity Commission (EEOC) has released additional guidance regarding the new EEO-1 Component 2 data reporting requirements for employers who were involved in mergers, acquisitions and spinoffs in 2017 and 2018. As we previously reported, employers must report their Component 2 pay and hours worked data for calendar years 2017 and 2018 by … Continue Reading

Illinois Bans Salary History Inquiries

By Steven J. Pearlman, Edward Young and Holly Ren Morris on Posted in Hiring/Background Checks, Wage and Hour, Workplace Policies and Procedures
On July 31, 2019, Illinois Governor J.B. Pritzker signed into law House Bill 834 (the “Bill”), which amends the Illinois Equal Pay Act of 2003 (“IEPA”) to prohibit employers from inquiring into a job applicant’s salary history.  The law becomes effective on September 29, 2019. Prohibition on Salary History Inquiries Illinois’s new ban on salary … Continue Reading

Colorado Enacts Laws Regarding Pay Equity, Salary History and Criminal Background Inquiries

By Allan Bloom and Arielle E. Kobetz on Posted in Discrimination, Harassment and Retaliation, Hiring/Background Checks, Wage and Hour, Workplace Policies and Procedures
The Colorado legislature has been quite active in recent weeks, passing several new employment laws, many of which reflect nationwide trends. Among other things, the new laws address discriminatory pay disparities, salary history inquiries and criminal background checks. Pay Disparity Effective January 1, 2021, the Equal Pay for Equal Work Act (the “Act”) will prohibit … Continue Reading

EEOC Posts Forms and Guidance for New EEO-1 Reporting Requirements

By Guy Brenner, Kate Gold and Jordan Simon on Posted in Wage and Hour, Workplace Policies and Procedures
In an effort to assist employers, the EEOC has posted guidance and sample forms for the new EEO-1 Component 2 Compensation Data reporting requirements on its website. The new materials provide useful information for employers to comply with the new reporting requirement. As we have previously reported, employers must now report employee pay data and … Continue Reading
LexBlog