Law and the Workplace

Tag Archives: misclassification

Second Circuit, Relying on SCOTUS Instruction, Rejects “Narrow Construction” Principle for FLSA Exemptions

By Allan Bloom on Posted in Wage and Hour
In two decisions issued on September 19, the Second Circuit relied on the Supreme Court’s instruction in Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1140 (April 2, 2018) that FLSA exemptions are not to be construed narrowly, but fairly. In Munoz-Gonzalez v. D.C. Limousine Service, Inc., analyzing the taxicab exemption in Section 13(b)(17) of … Continue Reading

DOL Issues Four New FLSA Opinion Letters

By Allan Bloom on Posted in Wage and Hour
Summer’s not over yet!  On August 28, 2018, the U.S. Department of Labor issued four new letters in response to requests for opinions under the Fair Labor Standards Act.  In this most recent slate of letters, the DOL offers guidance on compensable time, the retail sales exemption, volunteers, and the motion picture theater exemption. Compensable … Continue Reading

States’ Attorneys General Throw Shade on USDOL’s “PAID” Program

By Allan Bloom on Posted in Wage and Hour
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”

By Allan Bloom on Posted in Wage and Hour
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

By Allan Bloom and Andrew A. Smith on Posted in Wage and Hour
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

DOL Revives Slate of FLSA Opinion Letters From 2009

By Allan Bloom on Posted in Wage and Hour
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

Connecticut Supreme Court Issues Important Clarification For Independent Contractor Test

By Guy Brenner and Carolyn M. Dellatore on Posted in Independent Contractor, Wage and Hour
On March 21, 2017, the Connecticut Supreme Court issued an important ruling, finding that an individual may be still considered an independent contractor under the state’s Unemployment Insurance Act even if he/she only provides services to one business or entity.  In so doing, the Connecticut Supreme Court reversed a decision by the Unemployment Insurance Board finding … Continue Reading

Appellate Division Rules That Paid Blogger Was Not An “Employee” Entitled To Unemployment Benefits, Signaling Trend Toward More Searching Judicial Review of Agency Decisions

By Allan Bloom on Posted in Independent Contractor, Wage and Hour
One of the recurring themes in workplace law in 2016 was the continued crackdown on independent contractor misclassification.  Both federal and state agencies, as well as the plaintiffs’ bar, invested significant resources to challenge employers in the “gig economy”—as well as in more traditional businesses—that rely heavily on contractors, freelancers, and other third-party service providers. … Continue Reading

Oklahoma Partners With U.S. DOL to Investigate Worker Misclassification

By Guy Brenner and Carolyn M. Dellatore on Posted in Independent Contractor, Wage and Hour
On September 13, 2016, Oklahoma became the 35th state to enter into a partnership with the U.S. Department of Labor (U.S. DOL) to share information and conduct joint investigations regarding independent contractor misclassification.  Oklahoma represents just the latest in a flurry of new participants in the U.S. DOL’s Misclassification Initiative, which was launched in 2010 … Continue Reading

North Carolina and Nebraska Join 32 Other States In Agreeing To Partner With U.S. DOL to Investigate Worker Misclassification

By Guy Brenner and Carolyn M. Dellatore on Posted in Independent Contractor, Wage and Hour
Just last month we reported that Pennsylvania had entered into a memorandum of understanding (“MOU”) with the U.S. Department of Labor (“U.S. DOL”), agreeing to share information and conduct joint investigations regarding independent contractor misclassification.  Now two more states have joined the U.S. DOL in this effort. In the past week, North Carolina and Nebraska … Continue Reading

New Arizona Independent Contractor Law Now In Effect

By Guy Brenner and Carolyn M. Dellatore on Posted in Independent Contractor, Wage and Hour
Arizona’s “Declaration of Independent Business Status” law went into effect earlier this month. The new law, which appears to be the first of its kind, aims to provide independent contractors and the businesses that engage them greater certainty with respect to their employment status. Under the new law, independent contractors may sign a Declaration of Independent … Continue Reading

Sixth Circuit: Loan Underwriters Not Entitled to Overtime Pay

By Allan Bloom on Posted in Wage and Hour
On March 2, 2016, the U.S. Court of Appeals for the Sixth Circuit held that residential loan underwriters of Huntington National Bank are administrative employees under the FLSA and therefore not entitled to overtime pay.  The primary duty of an underwriter is to decide whether or not a customer qualifies for a desired loan, relying on an initial recommendation generated by … Continue Reading

Financial Advisors Not Entitled To Overtime, California Court Confirms

By Allan Bloom on Posted in Wage and Hour
In its February 16, 2016 decision in Tsyn v. Wells Fargo Advisors, LLC, Case No. 14-cv-02552-LB, the federal district court for the Northern District of California confirmed that licensed financial advisors qualified for the administrative exemption under the Fair Labor Standards Act (FLSA).  Specifically, the plaintiffs’ primary duties fell within the examples of exempt duties … Continue Reading

North Carolina Governor Signs Executive Order on Worker Misclassification

By Guy Brenner and Carolyn M. Dellatore on Posted in Independent Contractor, Wage and Hour
On December 18, 2015, North Carolina Gov. Pat McCrory signed an executive order establishing an “Employee Classification Section” within the state’s Industrial Commission.  The Order, which took effect immediately, tasked this new Section with overseeing employee misclassification enforcement by receiving reports of employee misclassification and referring those reports to appropriate state agencies for further action.  … Continue Reading

Governor Cuomo Vetoes Bill Creating Independent Contractor Test For Newspaper Carriers

By Guy Brenner and Carolyn M. Dellatore on Posted in Independent Contractor, Wage and Hour
Gov. Andrew Cuomo signed several bills into law on Saturday, November 21, 2015.  However, one piece of legislation that did not make it past his desk was a measure that would have created a special test under which newspaper carriers could more easily be classified as independent contractors as opposed to employees for purposes of … Continue Reading

Vermont Department of Labor and U.S. DOL Agree to Work Together Against Misclassification

By Guy Brenner and Carolyn M. Dellatore on Posted in Independent Contractor, Wage and Hour
Yesterday the U.S. Department of Labor (“U.S. DOL”) and the Vermont Department of Labor (“VDOL”) signed a three-year memorandum of understanding to share information and conduct joint investigations regarding independent contractor misclassification.  The agreement is part of the U.S. DOL’s Misclassification Initiative, the goal of which is to prevent, detect, and remedy employee misclassification.  Just … Continue Reading

Alaska Department of Labor and U.S. DOL Agree to Work Together Against Misclassification

By Guy Brenner and Carolyn M. Dellatore on Posted in Wage and Hour
The U.S. Department of Labor (“U.S. DOL”) and the Alaska Department of Labor and Workforce Development recently signed a memorandum of understanding to share information and conduct joint investigations regarding independent contractor misclassification.  The agreement is part of the U.S. DOL’s Misclassification Initiative, the goal of which is to prevent, detect, and remedy employee misclassification.  Just last … Continue Reading

Second Circuit Revives Putative Collective Action

By Mark W. Batten, Elise M. Bloom, Allan Bloom and Rebecca Sivitz on Posted in Class/Collective Action
On July 23, 2015, the Second Circuit, in Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, Tower Legal Staffing, Inc., revived a putative collective action brought by David Lola, a contract attorney, against Skadden and Tower Legal Staffing, Inc., alleging violations of the overtime provisions of the Fair Labor Standards Act.  The Second Circuit … Continue Reading

US Department of Labor Issues Administrator’s Interpretation Aimed At Limiting Independent Contractor Classification

By Guy Brenner and Carolyn M. Dellatore on Posted in Independent Contractor, Wage and Hour
As forecast in our June 12, 2015 blog post David Weil, Administrator of the Department of Labor’s Wage and Hour Division (WHD) has released Administrator’s Interpretation (AI) No. 2015-1, entitled “The Application of the Fair Labor Standards Act’s ‘Suffer or Permit’ Standard in the Identification of Employees Who Are Misclassified as Independent Contractors.”  The AI provides … Continue Reading

DOL To Issue Independent Contractor Guidance

By Guy Brenner and Carolyn M. Dellatore on Posted in Independent Contractor, Wage and Hour
According to an Article in Law360, on June 5, 2015, David Weil, Administrator of the Department of Labor’s Wage and Hour Division, stated that his Office is preparing to release guidance addressing how to assess whether a worker is properly classified as an independent contractor.  Weil made the announcement at New York University’s 68th Annual … Continue Reading

NJ Supreme Court Clarifies Independent Contractor Standard under State Wage Laws

By Guy Brenner and Daniel Saperstein on Posted in Independent Contractor, Wage and Hour, Workplace Policies and Procedures
Last week, New Jersey’s highest court ruled in Hargrove v. Sleepy’s, LLC, No. A-70-12 (Jan. 14, 2015), that the so-called “ABC test” applies when determining whether a worker is an employee or independent contractor under the New Jersey Wage Payment Law (“WPL”) and Wage & Hour Law (“WHL”).  That test presumes an individual is an employee … Continue Reading

Rhode Island Establishes Tip Line For Worker Misclassification

By Guy Brenner and Carolyn M. Dellatore on Posted in Independent Contractor, Wage and Hour
Man using smartphoneRhode Island’s Joint Task Force on the Underground Economy and Employee Misclassification announced earlier this month that it has set up an anonymous telephone tip line for reporting allegations of independent contractor misclassification.  The Task Force was established to reduce worker misclassification.  It consists of representatives from Rhode Island’s Department of Labor and Training (DLT), the … Continue Reading

New Hampshire Department of Labor and U.S. DOL Agree to Work Together Against Misclassification

By Guy Brenner and Carolyn M. Dellatore on Posted in Wage and Hour
The U.S. Department of Labor (“U.S. DOL”) and the New Hampshire Department of Labor recently signed a memorandum of understanding to share information regarding independent contractor misclassification.  The agreement is part of the U.S. DOL’s Misclassification Initiative, with the goal of preventing, detecting, and remedying employee misclassification.  Just last month Alabama’s Department of Labor entered into … Continue Reading
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