Employer Law Report

Tag Archives: DOL

Department of Labor rescinds recent joint employer guidance

On June 7, 2017 the Secretary of Labor, Alexander Acosta, announced that the US Department of Labor (DOL) was withdrawing its 2015 and 2016 guidance on joint employment and independent contractors. The Obama-era guidance expanded how joint employment was defined to include employers that have indirect or potential control over the terms and conditions of employment, as we previously reported. By moving away from this guidance, the DOL returns to the previous direct control standard. The move also rescinds an Interpretation Letter stating the DOL would broadly define “employee” under the Fair Labor Standards Act (FLSA) and that most …

New Secretary of Labor sworn in

Much has been written recently about the first 100 days of the Trump Administration. Some would argue that little of significance has changed in the employment regulation world. But, the confirmation on April 27, 2017 of new Secretary of Labor R. Alexander Acosta squeaked through the door just before the first 100 days concluded and it could be an initial step towards the sort of employment regulation reform that many in the business community have been expecting.

Secretary Acosta will lead the Department of Labor (DOL), the cabinet department responsible for, among other agencies, the federal Wage and Hour Division …

Important update regarding the DOL’S Persuader Rule: Texas District Court issued a permanent, nationwide injunction blocking it

When we last reported on the status of the U.S. Department of Labor’s controversial “Persuader Rule,” it was to inform you that on June 27, 2016, a federal district court in Texas had issued a preliminary injunction that temporarily blocked the DOL’s new interpretation of the rule from taking effect. We are pleased to report that yesterday that same court converted the preliminary injunction into a permanent order blocking the new rule’s implementation. The Texas District Court’s order is national in scope.

U.S. District Judge Sam R. Cummings granted summary judgment to Texas and nine other states, as well as …

DOL issues updated required posters for FLSA and EPPA

The federal Department of Labor (DOL) has issued an updated poster for the “Employee Rights Under the Fair Labor Standards Act” poster, which is a federally required poster. The updated poster adds information on the rights of nursing mothers (to lactation breaks) under the FLSA, misclassification issues related to independent contractors and tip credits. In an effort to move forward with technology, the new poster also includes a scannable QR code which take employees to the DOL website for information on compliance with the FLSA as well as instructions on how to file a complaint. The poster is available here

DOL’s Persuader Rule blocked from taking effect – for now

A special thanks to summer clerk Arslan Sheikh for his assistance with this article

On June 27th, 2016, a federal district court in Texas issued a preliminary injunction, temporarily blocking the Department of Labor’s (DOL) new interpretation of the “Persuader Rule.” This injunction, which is national in scope, is a big win for employers and attorneys alike as it provides both parties more latitude to discuss union avoidance issues without being subject to reporting requirements. The Texas court’s decision means that the DOL must continue to exempt an attorney from reporting to the DOL on advice given to clients pertaining …

Important update regarding DOL’S new “Persuader Rule”

As we previously reported, the U.S. Department of Labor’s (DOL) new “Persuader Rule” is set to take effect July 1, 2016. The rule is highly controversial because it requires employers and labor relations consultants, including attorneys, to file reports with the DOL regarding any arrangements to assist the employer in “persuading” employees regarding their rights to engage in, or refrain from engaging in, union organizing activities or to collectively bargain. Under the new Persuader Rule, many legal services that labor consultants and lawyers typically provide to employers will have to be reported to the federal government effective July 1, 2016. …

Employers wanting to take full advantage of the Defending Trade Secrets Act should consider including immunity notice in all new and updated confidentiality agreements

As our sister blog, Technology Law Source has reported, on May 11, 2016, President Obama signed into law the Defending Trade Secrets Act (DTSA), which creates a federal trade secret misappropriation cause of action. As noted, businesses have a lot to consider in deciding whether to pursue this new cause of action in federal court when the security of their trade secrets are threatened. Because the DTSA does not pre-empt state laws protecting trade secrets, however, if a federal forum is otherwise appealing, there really is no reason not to pursue a DTSA cause of action.

Employers will be …

DOL’s final “Persuader Rule” delivers another coup to unions

Thinking about having an employment relations consultant or attorney meet with your managers and supervisors for a union avoidance session? If so, you may want to have it scheduled to take place prior to July 1, 2016. According to a new rule issued by the Department of Labor (DOL), any union avoidance seminars conducted for supervisors or other employer representatives after July 1, 2016 must be reported to the DOL on government-issued forms.…

DOL joins NLRB in making joint employment an enforcement priority

In prior posts (Are you a “joint employer” with your temporary staff supplier? The National Labor Relations Board says “Yes,” and ; NLRB poised to relax standard for establishing joint employment; may mean more union issues in franchising and temporary service worker deals ), we wrote about decisions by the National Labor Relations Board (NLRB) that expand the definition of joint employment and broaden potential liability for violations of the National Labor Relations Act. Last month, the U.S. Department of Labor (DOL) joined the NLRB in making joint employment an enforcement priority when it issued an Administrator’s Interpretation and …

New FMLA Forms and Poster to Be Used on March 8, 2013; Employers Should Review and Change FMLA Policies Consistent with New Rules

The DOL recently issued its final regulations regarding expansion of military caregiver and qualifying exigency leave and regulations affecting flight crews. These new rules take effect this Friday, March 8. We covered these rules when they were initially proposed by the DOL. The rules issued in their final form are consistent with our previous summary, and the official commentary and final rules can be accessed here.

The updated forms are available here, and the updated poster is available here.

What are the changes?

Most employers will need to be concerned only with the changes to leave available …

DOL Publishes its Proposed Rules on Military Family Leave and Flight Crews; FMLA Forms No Longer “Expired”

Proposed Regulations:
Yesterday, the Department of Labor published its proposed regulations (pdf) to address the recently enacted changes to military leave and eligibility requirements for flight crew members. Beyond the changes detailed below, the DOL clarified that employers are not required to provide employees with FMLA-protected military caregiver leave for the "serious injury or illness of a veteran" until final rules defining that term are issued. However, employers are required to comply with the expansion of qualifying exigency leave for foreign deployment of a family member in the regular Armed Services, in addition to the leave already available for family members …

Hiring Unpaid Summer Interns? Keep These Important Tips In Mind

Many employers allow students to intern in their workplaces so that the students can gain exposure to real world work, learn about a particular industry or career, or earn credit hours towards their degree requirements. However, if these interns are unpaid, employers risk liability for failure to pay minimum wage and overtime under the Fair Labor Standards Act (FLSA). Employers that enter into these arrangements, often made with the intent of helping students and being good corporate citizens, without careful consideration risk lawsuits from former interns, including class actions, and United States Department of Labor (DOL) investigations and other enforcement …

Department of Labor Begins Enforcing Requirement that Employers Provide Breaks to Nursing Mothers

The Department of Labor has begun enforcing the law passed in March 2010 requiring break time for nursing mothers and has cited 15 employers for violations of the law. We wrote about this law at the time the statute went into effect. While there was little guidance about the law at that time, the Department of Labor has provided a little more direction since then. However, there are still no formal implementing rules for the requirement.

The health care reform law passed in 2010 amended the Fair Labor Standards Act requiring “reasonable” break time for employees who are nursing mothers. …

USDOL FMLA Forms Have “Expired”

We have been receiving questions lately from clients and friends regarding the continued validity of the Department of Labor’s FMLA forms that we posted here. The Department has requested approval for the renewal of these forms from the federal Office of Management and Budget. In the meantime, employers may continue to use these forms. In order to comply with the Genetic Information NonDiscrimination Act ("GINA"), however, employers should also send a note to the healthcare provider that includes the following safe harbor language recommended by the EEOC:

"The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other …

NLRB’s D.R. Horton Decision Places Road Block In Front of Employer Mandated Class Action Waivers

Back in May, we hailed the Supreme Court’s decision in AT&T Mobility v. Concepcion as a potentially huge step forward for employers that seek to require individual arbitration of employment claims. Last week, however, the NLRB again proved to be the wet blanket at the party. In D.R. Horton, the Board addressed an employer agreement that required all employees to waive their right to a judicial forum and to agree to bring all claims to an arbitrator on an individual basis. The agreement prohibited the arbitrator from consolidating claims, fashioning a class or collective action, or awarding relief to a …

OFCCP Proposes Numerical Goals for Employment of Persons with Disabilities

The U.S. Department of Labor Office of Federal Contracts Compliance Programs (OFCCP) has proposed a new rule requiring federal contractors and subcontractors to set a goal to have 7% of their workforce be individuals with disabilities. Presently, federal contractors and subcontractors are only required to set percentage numerical goals for areas of their workforces where women and minorities are found to be underrepresented based on an "Availability Analysis" conducted under OFCCP regulations. The 7% goal for persons with disabilities proposed by OFCCP would apply to each job group in the contractor’s workforce. It is not based on any calculation by …

FLSA Hot Topic: The Fluctuating Workweek and Commission Pay

We’ve noticed some cases recently filed challenging employers’ use of the fluctuating workweek method to determine the overtime compensation for employees who receive commission payments. Plaintiffs are alleging that this practice is not permitted by the Fair Labor Standards Act (FLSA) when employees earn commissions in addition to their salaries. However, this issue is unresolved, and precedent seems to favor the employer defendants.

The fluctuating workweek method is permitted by FLSA regulation 29 C.F.R. § 778.114, promulgated by the Department of Labor to implement the Supreme Court’s holding in Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 580 …

Obama Administration Issues Two Proposed Regulations Designed to Promote Pro-Union Agenda

It’s only Wednesday and already this is proving to be a potentially huge week for organized labor. In moves long sought by organized labor and opposed by business groups, the Obama Administration issued two proposed federal regulations this week that could significantly impact union elections.

First, on Monday, The Department of Labor ("DOL") issued a proposed regulation that would require employers to disclose more information about consultants they hire in response to union organizing campaigns. According to the DOL, the Labor-Management Reporting Disclosure Act which was enacted in 1959 currently is being applied too narrowly, because it only requires reporting …

Employers Beware – DOL Unveils Smartphone Timekeeper App

In wage and hour cases, the number of hours employees have worked is usually a primary issue.  When employees are misclassified as exempt, employers are often in a bind because they have not tracked the employees’ time and are unable to refute the claims made by the employees as to how much time they worked.  Even in cases in which employees are classified as nonexempt, employees frequently claim to have worked more than 40 hours per week without being paid overtime.  In either situation, it is often the case that employees have not kept contemporaneous time records themselves either.
 …

DOL Regulations Set To Take Effect May 5

As we advised last month, several changes initiated by the DOL’s Wage and Hour Division’s new regulations are set to take effect on May 5, 2011. On that date, the maximum federal tip credit will increase from $4.42 an hour to $5.12. That means that, under federal law, an employer can pay a tipped employee $5.12 less than the minimum wage so long as the individual’s overall compensation equals at least the legal minimum wage. In addition, the DOL’s finding that "bonus and premium payments . . . are incompatible with the fluctuating workweek method" may impact how some …

Sixth Circuit Applies “Primary Benefit” Test To Uphold Unpaid Internship Program

In a decision issued on April 28, 2011, the Sixth Circuit Court of Appeals offers employers some clarity on the test to determine whether using unpaid interns or other student trainees violates the Fair Labor Standards Act (FLSA). In this case, Solis, Secretary of Labor v. Laurelbrook Sanitarium and School Inc., 6th Cir. No. 09-6128, the Court threw out a U.S. Department of Labor lawsuit against a Tennessee religious school’s student work experience program.

The Department of Labor brought an action against the Laurelbrook school alleging that its students were "employees" and had to be paid under the FLSA. …

OFCCP Proposes New Affirmative-Action Rules for Veterans

On April 25, 2011, the Department of Labor’s Office of Federal Contract Compliance Programs announced a proposed rule to increase the affirmative action obligations federal contractors and subcontractors owe to veterans. It was published in the Federal Register on April 26 to allow for a 60-day comment period and will likely generate significant discussion among both contractor and veterans groups.

Some of the changes simply clean up regulatory language which is no longer accurate and others clarify existing obligations. The most controversial changes, however, add some rather significant data collection, monitoring, recruitment and hiring obligations. As the DOL’s news release …

DOL Wage-and-Hour Division Issues New Regulations

On April 5, 2011, the Department of Labor’s Wage and Hour Division (WHD) published new regulations. Among other changes, the WHD raised the maximum federal tip credit from $4.42 an hour to $5.12. That means that, under federal law, an employer can pay a tipped employee $5.12 less than the minimum wage so long as the individual’s overall compensation equals at least the legal minimum wage.

Perhaps most noteworthy, however, is what the WHD did not do in issuing the regulations. In its 2008 proposed rules, which were issued during the Bush Administration, the WHD indicated that it was considering …

DOL Issues Guidelines on New Requirement for Break Time for Nursing Moms

The federal health care reform legislation passed in March of this year included an amendment to the Fair Labor Standards Act (FLSA), requiring employers to provide reasonable unpaid break time to nursing mothers to express breast milk for the nursing child. The requirement to provide breaks extends for one year after the child is born. The DOL has just released a fact sheet with general information about the requirements.

Briefly, the law requires that employers provide "reasonable break time… each time such employee has need to express milk." Employers must provide a private location, free from intrusion, other than a …

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