Employer Law Report

Tag Archives: DOL

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 …

DOL to Scrutinize Unpaid Internships

As noted in a recent New York Times article, researchers have found that the number of unpaid internships has risen, likely due to employers’ limited ability to provide new paying jobs and students’ willingness to gain increasingly hard-to-come-by experience. However, officials from the Department of Labor have indicated that many unpaid internship arrangements violate federal law. Nancy Leppink, Acting Director of the DOL’s Wage and Hour Division, stated: "If you’re a for-profit employer or you want to pursue an internship with a for-profit employer, there aren’t going to be many circumstances where you can have an internship and not be paid and …

DOL Wage and Hour Division Changes Its Form of Providing Guidance

The Department of Labor’s Wage and Hour Division has announced that it will no longer release guidance in the form of detailed opinion letters on specific fact situations under the Fair Labor Standards Act and other statutes.  Instead, the Wage and Hour Administrator will issue general interpretations (called "Administrator Interpretations") of wage and hour laws and regulations that will be useful to a more broad range of employers.  The Division believes that "this will be a much more efficient and productive use of resources than attempting to provide definitive opinion letters in response to fact-specific requests submitted by individuals and …

Michael Vick Gets Released From the ERISA Doghouse, But Could You be Next?

Sports fans, you can breath easier about your fantasy football lineups — Michael Vick is out of the doghouse with the U.S. Department of Labor, presuming he complies with a consent judgment. We had cautioned in an earlier post that Vick’s release from prison did not necessarily mark the end of his government obligations, given DOL allegations of ERISA violations. As explained in the DOL’s press release, the DOL’s complaint alleged that Vick and others improperly removed $1.35 million of pension plan assets to help pay the criminal restitution imposed on Vick after his conviction for unlawful dog fighting, and to …

Department of Labor Releases New Wage and Hour Fact Sheet

The federal Department of Labor (DOL) recently issued a new fact sheet entitled “Frequently Asked Questions Regarding Furloughs and Other Reductions in Pay and Hours Worked Issues.”  While the fact sheet contains no new law or interpretation, in these economic times, it is extremely helpful for employers to have the DOL’s prior guidance on these issues consolidated in one sheet. 

The fact sheet is set out in a question-and-answer format that is easy to follow. It addresses the following questions:

  1. If an employer is having trouble meeting payroll, do they need to pay non-exempt employees on the regular payday? Answer: Yes.

DOL Issues Opinion Letter Requiring Employees Requesting FMLA Leave to Comply with Employer’s Usual and Customary Policies

One of the underappreciated benefits for employers in the recent amendments to the FMLA regulations announced by the Department of Labor (DOL) effective January 2009 was clarification of an employee’s obligation to comply with the employer’s procedural requirements for requesting leave.  This employee obligation was further strengthened this month.

In Opinion Letter FMLA 2009-1-A, released on May 5, 2009, the DOL responded to an employer inquiry challenging the prior regulations and an earlier Opinion Letter, FMLA-101 (dated January 15, 1999).  Those earlier authorities had been widely interpreted as prohibiting employers from enforcing any internal call-in and no-call/no-show policies if …

Model COBRA Notices From the Department of Labor

The U.S. Department of Labor (DOL) has released four model notices for use by employers in connection with requirements of the American Recovery and Reinvestment Act (ARRA) (see Employment Law Alert – “Broad COBRA Changes in 2009 Stimulus Bill – What Should You Be Doing Now?” – March, 2009). The model notices are available on the DOL web site: http://www.dol.gov/ebsa/COBRAmodelnotice.html. Employers and plan administrators should use the model notices as a guide, but those notices will require customization to meet the circumstances of particular employers and plans. Also, in the Model election forms there is a technical error in the …

DOL Issues New Wage and Hour Opinion Letters

On March 6, 2009, the United States Department of Labor (DOL) released two noteworthy wage and hour opinion letters.

The first, Opinion Letter FLSA2009-16, may cause an unnecessary stir in the employer and legal communities. The opinion letter approves an employer’s “compressed work schedule.” Employees work nine hours per day Monday through Thursday and work eight hours on one of the two Fridays during the two-week pay period. The company operates under two alternative workweeks. Under the first option, the workweek begins at 11:31 a.m. on Friday and ends at 11:30 a.m. the following Friday, with the scheduled workday beginning at 7:30 a.m. Under …

FMLA Update – Are You Posted?

Many employers may feel they are currently in a state of limbo with respect to their FMLA policies and obligations. As we reported on our Blog in January, the FMLA was amended on January 28, 2008 to include “any qualifying exigency” arising out of the fact that the spouse, son, daughter or parent of the employee is on active duty in the military or has been notified of an impending call to active duty status as an additionally qualifying reason for up to 12 weeks of leave. The amendment also created a new leave entitlement of up to 26 weeks …

Wage and Hour Update: New Opinion Letters from DOL

The United States Department of Labor (DOL) recently released two new opinion letters. Both are employer-friendly.

Opinion Letter FLSA2008-1 addressed whether purchasing agents in a private sector company were properly categorized as exempt administrative employees. Based on the specific context, DOL determined that the employees were exempt from overtime requirements. As a reminder, to meet the criteria for an administrative exemption, the position must: (1) meet the salary basis test; (2) have a “primary duty” of performing office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and (3) include the exercise of …

Proposed FMLA Regulations Largely Disappointing for Employers

As we reported yesterday, the Department of Labor (DOL) issued new proposed regulations governing enforcement of the Family and Medical Leave Act (FMLA). Although there are some useful new provisions, the changes are largely disappointing for employers who were hoping that the new regulations would offer much-needed clarification and relief from administrative burdens. Despite the disappointment, employers must still take the time to understand the differences between the “old” 1995 regulations and these “new” 2008 proposed regulations. To that end, the most significant changes affecting employers are listed below. …

Supreme Court Considers Weighing In On Key FMLA Waiver Issue

In July 2007, the Fourth Circuit Court of Appeals held in Progress Energy v. Taylor, 493 F.3d 454 (4th Cir. 2007), that, under the Department of Labor’s (DOL’s) regulations and the Family and Medical Leave Act (FMLA), employees cannot waive their rights under the FMLA in a private agreement, such as a severance agreement.  To waive FMLA rights, the Fourth Circuit held that the agreement must first be court- or DOL-approved.  Progress Energy, supported by several other business groups, appealed the decision to the U.S. Supreme Court, citing a split between the Fourth and Fifth Circuits.  On January …

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