Law and the Workplace

Tag Archives: FLSA

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

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

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

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

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

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

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

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?

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

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

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

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

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

DOL Validates Independent Contractor Relationships in the On-Demand Marketplace

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

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

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

Unboxing The Proposed New Federal Overtime Rule

It’s here.  The U.S. Department of Labor’s Wage and Hour Division unveiled its proposed new overtime rule today.  We skipped the 200-plus pages of preamble and jumped right to the proposed regulatory amendments themselves (we’ll digest the prefatory materials in another post).  Here’s the deal: The salary minimum for exemption as an executive, administrative, or … Continue Reading

Moonlighting Police Officers Are Employees, Not Independent Contractors, Says Sixth Circuit

In yet another legal development calling into question a traditional independent contractor relationship in the U.S., the Court of Appeals for the Sixth Circuit determined that off-duty police officers were employees of a private security company for purposes of the Fair Labor Standards Act.  In Acosta v. Off Duty Police Services, Inc. (6th Cir. Feb. … Continue Reading

[Podcast]: Recent Developments in Federal Overtime Rules

In this episode of The Proskauer Brief, senior counsel Harris Mufson and partner Allan Bloom discuss recent developments in federal overtime rules.  The Trump administration recently released its fall 2018 regulatory agenda, with lots of information relating to the Department of Labor (DOL). The DOL appears to be committed to a more business-friendly regulatory framework … Continue Reading

Federal Regulatory Agenda Previews Anticipated FLSA Rule Changes

The Trump Administration unveiled its Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions (the “Regulatory Agenda”) earlier this week.  That’s the biannual report from the federal administrative agencies on the regulatory actions they plan to take in the near and long term. Lots of juicy information in the Regulatory Agenda, but we’ll focus on … Continue Reading

New Federal Tip Rules Expected in October 2018

Since 1966, Section 3(m) of the Fair Labor Standards Act permits an employer to take a tip credit toward its minimum wage obligation for tipped employees equal to the difference between the required cash wage (currently $2.13) and the federal minimum wage (currently $7.25).  Employers using the tip credit must be able to show that … Continue Reading

Trump’s Fall Regulatory Agenda Pegs March 2019 For Proposed New Overtime Rule

In its Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions, published today, the Trump Administration formally announced its intention to issue a Notice of Proposed Rulemaking (NPRM) in March 2019 “to determine the appropriate salary level for exemption of executive, administrative and professional employees.”  See our earlier post for what to expect in the proposed new rule.… Continue Reading

New Federal Overtime Rule Expected in March 2019 

It doesn’t seem that long ago that employers were busily preparing for the new overtime rule that would have doubled the minimum salary level for the “white collar” exemptions from $23,660 to nearly $48,000.  That new rule—finalized in May 2016 and set to take effect on December 1 of that year—was struck down by a … Continue Reading
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