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
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
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
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
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
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
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
Who says wage and hour law is boring? Not us. We came across two wage and hour stories this year that are too awesome not to share. Auto-Repair Shop Owner Pays Employee’s Final Wages in Pennies, Is Sued by DOL As the New York Times reported back in January, the U.S. Department of Labor filed … 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
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
Shortly after his election in November 2021, New York City Mayor Eric Adams announced that he would accept his first three paychecks in Bitcoin. On January 20, 2022, the day before his first paycheck from the City was scheduled to arrive, Mayor Adams confirmed that his salary will be automatically converted into Bitcoin and Ethereum … Continue Reading
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
In this episode of The Proskauer Brief, partners Evandro Gigante and Steve Hurd discuss key developments regarding the COVID-19 pandemic, including employer vaccination policies, the forthcoming OSHA emergency temporary standard and the New York State HERO Act. So be sure to tune in as we explore the latest trends we are seeing in terms of employer-imposed vaccine mandates. … 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
On September 6, 2021, New York Governor Kathy Hochul signed into law New York Senate Bill S2766, which makes contractors in the construction industry jointly and severally liable for wages owed to employees of its subcontractors. The groundbreaking new law—which adds new section 198-e to the Labor Law (“§ 198-e”)—continues the expansion of worker rights … Continue Reading
New York Governors seem to have a history of favoring employees with Labor Law giveaways as they check out of the Executive Mansion. (Remember the Wage Theft Prevention Act, signed by David Paterson days before he left office in December 2010?) On August 20, 2021, four days before his resignation took effect, former Governor Andrew … Continue Reading
On July 21, 2021, answering a question certified by the United States Court of Appeals for the Sixth Circuit, the Pennsylvania Supreme Court held that time spent by employees waiting to undergo and undergoing mandatory security screening on an employer’s premises is compensable “hours worked” under Pennsylvania law. The decision from the Commonwealth’s high court, … Continue Reading
The U.S. Department of Labor announced on July 29 that it will rescind the March 2020 rule on Joint Employer Status under the Fair Labor Standards Act (the “2020 Rule”). The DOL’s action removes the regulations established by the 2020 Rule and will become effective on September 28, 2021. 2020 Joint Employer Rule The 2020 … 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
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