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
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
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
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
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
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
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
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
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
In a complaint filed on March 26, 2021, business groups challenged a U.S. Department of Labor March 4, 2021 final rule to delay the effective date of the Trump-era regulation on independent contractor classification. As we previously reported, that Trump-era rule, which was finalized two weeks before President Biden took office, was initially scheduled to … Continue Reading
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
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
On January 29, the U.S. Department of Labor announced that it was discontinuing the Payroll Audit Independent Determination (“PAID”) program, effective immediately. Under the program, which began in 2018, employers could self-report wage and hour violations to the DOL with the promise that the agency would supervise a settlement of the violations without seeking liquidated … Continue Reading
As expected, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced the withdrawal of three opinion letters issued in the waning days of the Trump administration. The opinion letters being withdrawn are: FLSA2021-4, which addressed whether a restaurant may institute a tip pool under the Fair Labor Standards Act that includes both servers, … Continue Reading
As expected, one of the first orders of business from the U.S. Department of Labor under the Biden administration was to scrap the 2020 “PRO Good Guidance Rule,” which imposed heightened burdens on the agency in connection with issuing guidance. The rule, issued last August in response to Trump’s Executive Order 13891—which directed federal agencies … Continue Reading
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
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
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
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
The U.S. Department of Labor (DOL) published a proposed rule in the Federal Register on September 25, 2020 to clarify whether a worker is or isn’t an independent contractor for purposes of the Fair Labor Standards Act (FLSA). The proposed rule adds a new Part 795 to Title 29 of the Code of Federal Regulations, … Continue Reading
In 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
Effective 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
*** UPDATE: The Department of Labor has issued guidance stating that the law will take effect on April 1, 2020. More information on the guidance can be found on our blog post here.*** On March 18, 2020, President Trump signed into the law the Family First Coronavirus Response Act (the “Family First Act” or the … Continue Reading
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
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