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SCOTUS: Employers Can Compel Individual Arbitration of Wage and Hour Claims
In its eagerly-awaited opinion in Epic Systems Corp. v. Lewis, the U.S. Supreme Court held on May 21 that class action waivers in arbitration agreements between employers and employees do not violate the National Labor Relations Act. The opinion resolves a split among federal circuits, and reiterates—once again—the strong federal policy favoring arbitration. While … Continue Reading
California Changes Rules on Independent Contractors
As reported by my colleagues in Proskauer’s California Employment Law Update, the Supreme Court of California established new rules on April 30, 2018 for determining whether a worker is an independent contractor or an employee for purposes of California’s Industrial Welfare Commission (IWC) Wage Orders. The Wage Orders set forth California’s requirements for minimum wage, … Continue Reading
DOJ Announces First Settlement Under Trump Administration Regarding “No-Poach” Agreement
On April 3, 2018, the Antitrust Division of the U.S Department of Justice (“DOJ”) announced that it had reached a settlement in a matter involving a “no-poaching” agreement between employers—the first such enforcement action under the Trump Administration. The DOJ’s pursuit of the matter reflects the Department’s continuing scrutiny of employment and hiring agreements between … Continue Reading
DOL Clarifies Pay Rules for FMLA-Related Breaks
In an opinion letter issued on April 12, 2018, the U.S. Department of Labor concluded that 15-minute breaks throughout the day required by an employee’s serious health condition are not compensable—notwithstanding the general rule that breaks of 20 minutes or less are to be paid. The agency explained the exception as follows: [R]est breaks up … Continue Reading
DOL Clears Up Travel Time Issue For Employees With No “Normal Working Hours”
The rules on what kinds of travel time are (and are not) compensable for non-exempt employees are complex. As opposed to exempt employees—who generally receive a salary intended to compensate them for all working time, including time spent in business-related travel—non-exempt employees are often only paid for the particular hours that the law deems compensable. … Continue Reading
States’ Attorneys General Throw Shade on USDOL’s “PAID” Program
Last month, we discussed some serious concerns about the efficacy of the U.S. Department of Labor’s “PAID” program, under which employers can self-report wage and hour violations to the federal agency and negotiate a seeming resolution of potential claims. Chief among our concerns was that the resolution would not extend to state law claims, leaving … Continue Reading
SCOTUS Soundly Rejects Notion That FLSA Exemptions Are To Be “Narrowly Construed”
In an April 2, 2018 decision of otherwise narrow appeal to most employers (whether the exemption in Section 13(b) (10)(A) of the Fair Labor Standards Act for an automobile “salesman, partsman, or mechanic” applies to “service advisors”), the Supreme Court flatly debunked the well-worn notion that FLSA exemptions are to be construed narrowly. To be fair, … Continue Reading
DOL’s “New” PAID Self-Reporting Program of Questionable Value to Employers
Earlier this week, the U.S. Department of Labor’s Wage and Hour Division announced the upcoming launch of a “new” pilot program called the Payroll Audit Independent Determination program (“PAID”). Under PAID, employers can come forward voluntarily to disclose wage and hour violations to the DOL, the DOL will supervise a settlement of any monetary claims … Continue Reading
2017 Form EEO-1 Survey Now Available
Yesterday, the 2017 EEO-1 Survey became available. Private employers with 100 or more employees and federal government contractors or subcontractors with 50 or more employees and a contract/subcontract of $50,000 or more must file EEO-1 reports. As you may recall, last year the U.S. Equal Employment Opportunity Commission (“EEOC”) attempted to revise the Form EEO-1 … Continue Reading
DOL Revives Slate of FLSA Opinion Letters From 2009
Continuing the pro-business activities many expected from the agency, the U.S. Department of Labor has revived 17 Fair Labor Standards Act opinion letters that were published in the waning days of the Bush Administration in January 2009 but promptly withdrawn by the Obama DOL in March of that year. The opinion letters were reissued verbatim … Continue Reading
DOL Adopts “Primary Beneficiary” Test For Internship Programs
The U.S. Department of Labor announced in a January 5, 2018 press release that it was scrapping the six-factor test it had used for years to determine whether interns are employees for purposes of the Fair Labor Standards Act and adopting the “primary beneficiary” test favored by a number of U.S. Courts of Appeals. Under the … Continue Reading
Ninth Circuit Joins Others in Endorsing Hourly Pay Averaging Under FLSA
On November 15, 2017, in a case of first impression in the Ninth Circuit, the Court of Appeals adopted the longstanding position of sister circuits and the U.S. Department of Labor that for purposes of determining whether an employee has received the minimum wage under federal law, the employer can divide total weekly earnings by … Continue Reading
Telecommuting Policies When Inclement Weather Strikes
Fifth Circuit Dismisses Appeal of Nationwide Injunction of Obama-Era Overtime Rule
In light of the Texas district court’s recent judgment invalidating the 2016 overtime rule, the DOL filed an unopposed motion to withdraw its appeal of the November 2016 order that preliminarily enjoined the rule on a nationwide basis. The Fifth Circuit Court of Appeals granted the motion and dismissed the appeal on September 6. Unless … Continue Reading
Texas Court Invalidates 2016 Federal Overtime Rule; DOL Seeks to Withdraw Appeal of Injunction
On August 31, 2017, the Texas federal district court that had issued a preliminary injunction in November 2016 blocking implementation of the Obama Administration’s revised overtime rule granted the plaintiffs’ motion for summary judgment, declaring the rule invalid and ending the case at the district court. The DOL had appealed the injunction with the Fifth Circuit Court … Continue Reading
New EEO-1 Form Put On Hold: Employers Have Until March 31, 2018 To Submit Prior Version Of EEO-1 Form
Key Points: The OMB has stayed the implementation of the new EEO-1 Form, which added compensation and hours worked components to the annual EEO-1 submission OMB’s decision was based in part on concerns about burdens the new form would place on employers and the questionable utility of the new information requirements Employers who must submit … Continue Reading
Wage and Hour Considerations During Weather-Related Emergencies
As Tropical Storm Harvey continues wreak havoc across Texas and beyond, it’s the right time to revisit employer rights and responsibilities during a weather-related emergency or other major disruption. Here are some typical scenarios that employers face during weather-related or other emergencies, and the consequences under the wage and hour laws. “Our office was closed … Continue Reading
Top Five Proactive Ways for Start-Ups to Avoid HR Nightmares
What Is Going On With The Revised EEO-1 Form? Acting EEOC Chair Provides Insight Into Its Status
As loyal readers of our blog are aware, in February 2016, the EEOC released a rule to amend the Form EEO-1. The new rule requires private employers (including federal contractors) with 100 or more employees to submit pay data with their EEO-1 reports. Employers with fewer than 100 employees will still not need to file … Continue Reading
DOL to Seek Public Comment on Overtime Rule
The U.S. Department of Labor has announced that on Wednesday, July 26, 2017, it will formally seek public comment on the overtime rule by publishing a Request for Information (RFI). The overtime rule would have required employers to pay most executive, administrative, and professional employees at least $913 per week in order to exempt them … Continue Reading
U.S. House Committee on Appropriations Votes to Defund Revised Form EEO-1 Requiring Disclosure of Pay Data
On July 13, 2017, the House Committee on Appropriations signaled what could be a devastating blow to the future of the Equal Employment Opportunity Commission’s (“EEOC”) revised Form EEO-1. As you may recall, in February 2016, the EEOC released a rule – which was later revised – to amend the Form EEO-1. The new rule … Continue Reading
DOL Pushes Ahead With Appeal of Overtime Rule Injunction
Earlier today, the U.S. Department of Labor filed a reply brief in further support of its appeal of the November 22, 2016 order in State of Nevada v. United States Dep’t of Labor, No. 4:16-CV-00731 (E.D. Tex.). That order, issued by federal district judge Judge Amos L. Mazzant, enjoined the DOL’s 2016 overtime rule on a nationwide … Continue Reading
DOL to Restart Conversation on New Overtime Rule
On June 27, 2017, the U.S. Department of Labor sent a Request for Information related to the now-enjoined overtime rule to the Office of Management and Budget for review. After OMB completes its review, the RFI will be published in the Federal Register for public comment. The new overtime rule, which was to take effect … Continue Reading
