Law and the Workplace

Category Archives: Wage and Hour

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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

Nevada Enacts Laws Regarding Paid Personal Leave, Drug Testing, and Minimum Wage

By Allan Bloom and Laura Fant on Posted in Discrimination, Harassment and Retaliation, Leaves of Absences, Wage and Hour, Workplace Policies and Procedures
Continuing the trend of states passing increasingly progressive employment regulations, Nevada recently enacted three new laws addressing paid leave, workplace drug testing, and minimum wage. Paid Personal Leave Following in the footsteps of Maine, which recently became the first state to enact a personal leave law, SB 312 will require private employers with 50 or … Continue Reading

New York State Advances Bill That Would Allow Liens Against Employers For Unpaid Wage Claims

By Allan Bloom and Laura Fant on Posted in Wage and Hour
Paying WagesUPDATE – On December 31, 2019, Governor Andrew Cuomo vetoed the bill; however, he indicated that he intends to propose replacement legislation in 2020 to allow victims of wage theft to use “any and all assets, even personal assets, of the bad actor” to satisfy a judgement. The New York state legislature has passed a bill … Continue Reading

Dems Introduce Bills to Raise Salary Minimum for Overtime Exemption

By Allan Bloom on Posted in FLSA, Wage and Hour
Members of the House and Senate introduced companion bills on June 11, 2019 to amend the Fair Labor Standards Act to raise the minimum salary threshold for exempt executive, administrative, and professional (“EAP”) employees to north of $50,000 and to automatically update the threshold every three years. The “Restoring Overtime Pay Act of 2019” (H.R. … Continue Reading

Retail Salespeople Paid on Commission Are Entitled to Overtime and Sunday Pay, Massachusetts SJC Says

By Mark W. Batten and Thomas B. Fiascone on Posted in Wage and Hour
On May 8, 2019, Massachusetts’ highest court held that retail salespersons who are paid entirely on a commission or draw basis, may nevertheless be entitled to additional overtime or pay for work on Sundays. The Supreme Judicial Court considered these questions in Sullivan v. Sleepy’s LLC, SJC-12542. The narrow questions the Court considered were whether … Continue Reading

DOL Validates Independent Contractor Relationships in the On-Demand Marketplace

By Allan Bloom on Posted in FLSA, Wage and Hour
In an opinion letter issued April 29, 2019, the U.S. Department of Labor’s Wage and Hour Division concluded that a “virtual marketplace company” (“VMC”) that connects service providers with consumers is not the employer of the service providers.  The opinion should be a welcome one not only for VMCs and businesses in the “gig economy,” … Continue Reading

Judge Orders Employers to Submit Pay Data on Revised EEO-1 Form by September 30, 2019

By Guy Brenner, Kate Gold and Jordan Simon on Posted in Wage and Hour, Workplace Policies and Procedures
Introduction: On April 25, 2019, Judge Tanya Chutkan ordered the U.S. Equal Employment Opportunity Commission (EEOC) to collect detailed data on employee compensation and hours worked from covered employers sorted by job category, pay band, race, ethnicity, and gender (“Component 2” of the EEO-1 form) by September 30, 2019.  The reporting requirement applies to all … Continue Reading

Massachusetts SJC Weighs in on Wage Act Class Actions and Offers of Judgment

By Mark W. Batten, Samantha Regenbogen Manelin and Thomas B. Fiascone on Posted in Class/Collective Action, Wage and Hour
On Friday April 12, 2019, the Massachusetts Supreme Judicial Court confirmed that plaintiffs seeking to bring class actions asserting Massachusetts Wage Act (“Wage Act”) violations must meet the certification standards set by Massachusetts Rule of Civil Procedure 23 (“Rule 23”), and cannot avail themselves of a lower bar to class certification. In Gammella v. P.F. Chang’s China Bistro, … Continue Reading

N.Y. Court of Appeals Delivers Wage and Hour Victory to Home Care Industry Employers

By Allan Bloom and Andrew Sherwood on Posted in Wage and Hour
On March 26, 2019, New York’s highest court delivered a victory for employers in the home care industry, clarifying that employers need only compensate home health aides for 13 hours of a 24-hour shift, provided the employees receive five hours of uninterrupted sleep during an eight-hour sleep break and three hours for meal breaks.  Andryeyeva … Continue Reading

Proposed Overtime Rule Published; Public Comment Period Open Until May 21

By Allan Bloom on Posted in Wage and Hour
The U.S. Department of Labor’s proposed new overtime rule was published in the Federal Register today.  As described in our earlier post, the proposed new rule would: Raise the salary minimum for exemption as an executive, administrative, or professional employee to $679 per week ($35,308 per year). Allow employers to satisfy up to 10% of the … Continue Reading
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