Law and the Workplace

Category Archives: Wage and Hour

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New York Enacts Statewide “Freelance Isn’t Free Act”

By Allan Bloom on Posted in Independent Contractor, Wage and Hour
On November 22, 2023, New York Governor Kathy Hochul signed into law a statewide “Freelance Isn’t Free Act” to provide certain protections for freelance workers.  The act mirrors protections in New York City’s law of the same name, which took effect in May 2017. Here are the highlights of the Freelance Isn’t Free Act, which … Continue Reading

Proposed New Federal Overtime Rule: Update

By Allan Bloom on Posted in FLSA, Wage and Hour
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

By Allan Bloom and Philippe A. Lebel on Posted in FLSA, Wage and Hour
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

Court Rejects Attempt to Enjoin New Jersey Temporary Worker Law From Taking Effect

By Evandro Gigante and Laura Fant on Posted in Hiring/Background Checks, Independent Contractor, Wage and Hour
A District of New Jersey court has rejected an attempt by staffing agency industry groups to enjoin the majority of the provisions of the New Jersey Temporary Workers’ Bill Of Rights Law from taking effect.  The denial by the court means that the bulk of the law’s provisions are set to take effect as scheduled … Continue Reading

Employers Face New Accommodation Requirements For Nursing Mothers

By Tony Oncidi and Ryan McGill on Posted in Accessibility & Accommodation, Biden Administration Coverage, Discrimination, Harassment and Retaliation, Wage and Hour, Workplace Policies and Procedures
In our recent blog post, we highlighted legislation that will impact employers this year related to nursing and pregnant employees: the Providing Urgent Maternal Protections for Nursing Mothers Act (the “PUMP Act”) and the Pregnant Workers Fairness Act (the “PWFA”).  As this legislation becomes effective—with the PUMP Act taking effect on April 28, 2023 and the … Continue Reading

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

By Allan Bloom, Philippe A. Lebel, Jonathan Slowik and Morgan Peterson on Posted in FLSA, Wage and Hour, Workplace Safety
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

By Allan Bloom, Philippe A. Lebel, Katrina McCann, David Gobel and Jennifer McGrew on Posted in FLSA, Strategic Corporate Planning, Wage and Hour
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:  Daily Rate Doesn’t Satisfy FLSA’s Salary Basis Test for Exemption, Even If It’s Huge!

By Allan Bloom on Posted in Wage and Hour
It’s always exciting when the Supreme Court takes up a wage and hour issue—at least for us.  Earlier this week, in Helix Energy Solutions Group, Inc. v. Hewitt, the court tackled the question of whether a daily rate can satisfy the “salary basis” test for exemption under the Fair Labor Standards Act as an executive, … Continue Reading

[Podcast]: NYC Council Considers Expanding the City’s Pay Transparency Law

By Evandro Gigante, Allan Bloom and Laura M. Fant on Posted in The Proskauer Brief Podcast, Wage and Hour
In this episode of The Proskauer Brief, partners Evandro Gigante, Allan Bloom and special employment law counsel Laura Fant discuss the New York City Council’s recently proposed amendments to the city’s pay transparency law. Presently, an employer is only required to include the “base annual or hourly wage or rate of pay” and not other forms of compensation or … Continue Reading

New York State DOL Increases Upstate New York Minimum Wage, Proposes Hike in Upstate Minimum Salary for Exemption

By Allan Bloom on Posted in Salary basis, Wage and Hour
As part of its goal of phasing in a $15 minimum wage for all employees in New York, the State began implementing annual increases in 2016 across all regions.  The annual increases are published by the Commissioner of Labor on or about October 1 of each year, and are based on percentage increases determined by … Continue Reading

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

[Podcast]: The New York City Pay Transparency Law Takes Effect

By Evandro Gigante, Allan Bloom and Laura M. Fant on Posted in The Proskauer Brief Podcast, Wage and Hour
In this episode of The Proskauer Brief, partners Evandro Gigante, Allan Bloom and special employment law counsel Laura Fant discuss the New York City Pay Transparency Law, which is set to come into effect on November 1, 2022. The law covers employers with four or more employees and generally requires covered employers who post a job, promotion, … 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

What to Do When Your Timekeeping System Crashes

By Allan Bloom on Posted in Wage and Hour
A number of companies suffered collateral damage last winter as a result of a cyber attack on a major provider of time and attendance software.  With your timekeeping systems compromised, how do you determine what to pay your non-exempt employees, particularly with a payroll processing deadline looming? The Governing Principles To properly pay overtime-eligible employees, … 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

In Colorado, “Low Wage” Now Means Six-Figures For Non-Competes

By Steven J. Pearlman, Joseph O’Keefe, Daryl Leon and E. Sydney Cone on Posted in Biden Administration Coverage, Non-Competes and Protection of Corporate Assets, Trade Secrets, Wage and Hour
On June 8, 2022, Colorado Governor Jared Polis signed Colorado House Bill 22-1317 (the “Bill”), which was passed by the Colorado Legislature on May 10, 2022. Effective 90 days from the end of the legislative session – on August 10, 2022 – Colorado will join the ranks of Illinois, Washington, and other states that have … Continue Reading

New York State to Fund Bonuses for Certain Healthcare Workers as Part of State Budget

By Edward S. Kornreich, Whitney Phelps and Laura Fant on Posted in Wage and Hour
As part of the Fiscal Year 2023 New York state Executive Budget legislation, $1.2 billion in funding has been allocated for the payment of bonuses for certain “frontline” healthcare workers. With the stated goals to “recruit, retain, and reward health care and mental hygiene workers,” the provision – located within Part D of the Health … 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

Massachusetts High Court Clarifies Test to Determine Joint Employer Status under State Wage and Overtime Statutes

By Mark W. Batten and Rebecca Fishbein on Posted in Wage and Hour
On December 13, 2021, the highest state court in Massachusetts ruled that the proper test for determining joint employer status under the state’s wage and overtime statutes is the “totality of the circumstances” test formerly used under the Federal Fair Labor Standards Act (“FLSA”), and not the more restrictive test of Mass. Gen. L. c. … Continue Reading
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