Employer Law Report

Tag Archives: DOL

DOL increases salary threshold for white collar exemptions to $35,568

After more than 15 years, the U.S. Department of Labor (DOL) is updating the overtime regulations under the Fair Labor Standards Act (FLSA). The FLSA entitles most employees to minimum wage and overtime pay for all hours worked over 40 in a workweek. However, employees who meet the salary threshold and the relevant duties test qualify for the executive, administrative, professional exemption (white collar exemption), and are not entitled to overtime pay. On Sept.24, 2019, the DOL issued a news release announcing its final rule regarding overtime regulations.

Effective Jan. 1, 2020, the new salary threshold for white collar exemptions …

Are changes coming to the FMLA?

It has been a decade since the United States Department of Labor (DOL) made any changes to the FMLA regulations, but we now have an indication that the DOL is at least willing to consider issuing new regulations at some point in the next few years. The United States Office of Management and Budget announced that, by April 2020, the DOL will “solicit comments on ways to improve its regulations under the FMLA to: (a) better protect and suit the needs of workers; and (b) reduce administrative and compliance burdens on employers.”

Employers interested in offering suggestions for the DOL’s …

DOL seeks to limit joint employer liability for wage and hour claims

On April 1, 2019, the Department of Labor (DOL) announced a proposed rule to narrow the definition of a “joint employer” under the Fair Labor Standards Act (FLSA). Because joint employers are jointly and severally liable for wage and hour claims brought under the FLSA, the change could have a significant impact on wage and hour litigation as we know it, offering franchisers and businesses that hire workers through staffing firms a shield from liability for some minimum wage and overtime pay violations.

Proposed regulation

Image depicting stack of wage and hour claims

Part 791 of Title 29 of the Code of Federal Regulations contains the DOL’s

DOL formally publishes notice of proposed rulemaking regarding salary threshold increase

Earlier this month, we reported that the United States Department of Labor (DOL) was reportedly set to propose a new regulation that would update time-and-a-half pay requirements for all hours worked beyond 40 hours a week. The Department’s proposed rule would raise the currently-enforced salary threshold, thus extending overtime protection to more workers.

On March 7, 2019, the DOL issued a draft Notice of Proposed Rulemaking (NPRM) to update the salary threshold for overtime exemption from $23,660.00 annually to $35,308.00 annually. On March 22, 2019, the DOL formally published the NPRM in the Federal Register. As expected, workers who make …

DOL releases notice of proposed rulemaking regarding salary threshold increase

Last week, the United States Department of Labor (DOL) was reportedly set to propose a new regulation that would update time-and-a-half pay requirements for all hours worked beyond 40 hours a week. The department’s proposed rule would raise the currently-enforced salary threshold, thus extending overtime protection to more workers. This would be the first such update to the salary threshold since 2004.

On March 7, 2019, the DOL announced a Notice of Proposed Rulemaking (NPRM) to update the salary threshold from $23,660.00 annually to $35,308.00 annually. In other words, workers who make less than about $35,308.00 per year would be …

U.S. Department of Labor issues new opinion letters covering FMLA and FLSA issues

On Tuesday, August 28, 2018, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced the issuance of six new opinion letters covering a variety of issues under the FMLA and FLSA. Specifically, the opinion letters address the following issues:

  • “No-fault” attendance policies and roll-off of attendance points under the FMLA
  • Organ donors’ qualification for FMLA leave
  • Compensability of time spent voluntarily attending benefit fairs and certain wellness activities
  • Application of the commissioned sales employee overtime exemption to a company that sells an internet payment software platform
  • Application of the movie theater overtime exemption to a movie theater that

Final association health plan regulations provide opportunity for small employers…maybe

In February, we reported that the Department of Labor (DOL) issued a proposed rule that could make it easier for small businesses to join together to purchase health insurance. That proposed rule sparked considerable debate on the general merits of association health plans (AHPs), as well as on the nuances of the proposed rule. Some commentators and experts remained skeptical of such arrangements, citing to the history of AHPs being used as a vehicle for fraud. Others were clearly in favor of any rule that might provide small employers with a new avenue to provide health coverage to their employees. …

New DOL opinion letter may provide clarity as to when FMLA-mandated breaks are paid and when they are unpaid

As we previously reported in the post “The return of Department of Labor Opinion Letters,” the U.S. Department of Labor (DOL) began issuing opinion letters again in mid-2017 after a six-plus-year hiatus. On April 12, 2018, the DOL issued an opinion letter, FLSA 2018-19, regarding when FMLA-mandated breaks for intermittent leave for an employee’s serious health condition are paid and when they are unpaid.…

New test should increase employer ability to create unpaid internship positions

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. If these interns are unpaid, however, employers risk liability for failure to pay minimum wage and overtime under the Fair Labor Standards Act (FLSA). Employers that enter into these arrangements without careful consideration of the FLSA risk lawsuits from former interns and United States Department of Labor (DOL) investigations.…

Recent Supreme Court decision holds that FLSA exemptions are to be construed fairly

Many thanks to Arslan Sheikh for his assistance in preparing this post.

In a decision issued on April 2, 2018 the Supreme Court of the United States held in Encino Motorcars, LLC v. Navarro that service advisors at an auto dealership are exempt from the Fair Labor Standards Act’s (FLSA) overtime pay requirement. Most importantly, the Court also rejected the 9th Circuit’s holding and Department of Labor policy that FLSA exemptions should be construed narrowly. Instead, courts should apply a fairness test to determine whether a particular job is covered under the exempt classifications of the act. As a result, …

Texas district court strikes down Obama DOL’s proposed overtime rule

Many thanks to Arslan Sheikh for his assistance in preparing this post.

Last week, a federal judge in Texas struck down a proposed Obama-era rule that would have expanded the number of workers who qualify for overtime pay under the Fair Labor Standards Act (FLSA).

The proposed rule

In 2016, the Obama administration’s Department of Labor (DOL) planned to implement a new rule that would have more than doubled the minimum salary threshold for “exempt” status under the FLSA from $23,660 to $47,476 per year. Under the DOL’s proposed rule, an employee who made an annual salary below $47,476 would …

The return of Department of Labor Opinion Letters

On June 27, 2017 the U.S. Department of Labor (DOL) announced it would reinstate the practice of issuing Opinion Letters. The Wage and Hour Division will once again use Opinion Letters to provide guidance to employers and employees on various topics.

Under the Obama Administration, the DOL stopped issuing Opinion Letters in favor of the more broad “Administrator Interpretations.” Between 2010 and 2016, the DOL only published 11 Administrator Interpretations. Two of these 11 Interpretations were recently rescinded, as we previously reported.…

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 …

Hurry up and wait: ERISA fiduciary rule delayed

While it took longer than many expected, the Department of Labor (DOL) issued a proposed rule that would provide a 60-day delay to the application of the new fiduciary rule and related prohibited transaction exemptions. As we reported in our previous blog, the rule was set to impose new fiduciary obligations on those who provide participant investment advice, which would have a trickle-down effect on the sponsors of qualified retirement plans in which those individuals participate. In anticipation of the original April 10, 2017 applicability date, many service providers and plan sponsors have already taken significant steps towards compliance.…

Texas court enjoins new salary basis rule set to go into effect December 1st

As of yesterday, employers who have not yet fully implemented changes in preparation for the new salary basis increase should put those plans on hold because a Texas federal court issued a nationwide preliminary injunction against the rule while it evaluates the legality of the rule. The salary required for exempt status for executive, administrative, and professional employees  (EAP or white collar employees) will remain at $23,660 or $455 per week. (Employees, of course, must meet the respective duties tests.) Any employers who had planned to raise exempt employees’ salaries to $47,476 or convert them to non-exempt status can place …

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 issues long-anticipated overtime rules—Here are the highlights

Today the Department of Labor (DOL) issued information about the final rules increasing the salary minimum for employees covered by the white-collar FLSA exemptions. While the official rules have not been published yet, here are the key points you need to know:

  1. The new minimum salary level will rise to $47,476 or $913 per week
  2. The annual compensation for highly compensated employees will rise to $134,004
  3. The effective date of the changes is Dec. 1, 2016
  4. The salary and compensation levels will automatically rise every three years
  5. Employers may use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up

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 …

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