Wage and Hour Defense Blog

On November 15, 2024, a district judge for the U.S. District Court for the Eastern District of Texas issued a significant, albeit somewhat unsurprising, opinion in Texas v. Department of Labor, vacating the U.S. Department of Labor’s (“DOL”) 2024 Final Overtime Rule (“Final Rule”), which, as we previously reported (here and here), had raised the minimum salary threshold on July 1, 2024, and was set to further increase the minimum salary threshold on January 1, 2025, for the executive, administrative, and professional (“EAP”) exemptions, and the highly compensated employee (“HCE”) exemption.

As a refresher, the Final Rule featured three components: (1) an increase to $844 per week (or $43,888 per year) for the EAP exemptions and to $132,964 for the HCE exemption that took effect on July 1, 2024; (2) a further increase to $1,128 per week (or $58,656 per year) for the EAP exemptions and to $151,164 for the HCE exemption on January 1, 2025; and (3) automatic increases every three years, beginning July 1, 2027.

The DOL previously issued a similar overtime final rule in 2019 that increased the minimum salary threshold from $455 per week to $684 per week. Unlike the 2024 Final Rule, the 2019 rule withstood legal challenge, and was upheld this past September by the U.S. District Court of Appeals for the Fifth Circuit.

Employers are generally required to pay nonexempt employees overtime compensation of at least one and a half times their regular rate of pay for hours worked over 40 in a workweek. While this is nothing new for employers, determining an employee’s regular rate is often more complex than one might think, and it is often a great cause of confusion for employers.

As we have previously discussed on this blog, the regular rate is a term of art that encompasses all nondiscretionary payments to an employee, and not just hourly wages—subject to certain exceptions. (For a discussion of what must be included in the regular rate, please see our prior post.) If, for instance, an hourly, non-exempt employee receives a productivity bonus, the regular rate for that employee is the hourly rate of pay plus the productivity bonus.

The Department of Labor Fact Sheet #56A explains the basic calculation of the regular rate in the following way:

Total compensation in the workweek (exclusive of statutory exclusions) ÷ Total hours worked in the workweek = Regular rate for the workweek

As we previously reported, the U.S. Department of Labor (DOL) issued a new final rule increasing the minimum salary amounts for the executive, administrative, and professional (EAP) and highly compensated employee exemptions. Shortly after the DOL announced its final rule, three lawsuits were filed in federal district courts in Texas challenging the DOL’s authority to increase the salary thresholds. However, despite these challenges, the first increase took effect on July 1, 2024 for all employers, except for the State of Texas as an employer.

State of Texas v. DOL

On May 22, 2024, a group of national business associations filed a complaint in the United States District Court for the Eastern District of Texas against the DOL challenging the final rule.[1] This lawsuit was later consolidated with a complaint filed in the same court by the State of Texas similarly challenging the final rule.[2] Notably, the consolidated action alleges that the final rule exceeds the DOL’s statutory authority under the Fair Labor Standards Act (“FLSA”) and the Administrative Procedure Act (“APA”), and that the final rule is arbitrary and capricious, in violation of the APA.

On May 15, 2024, the New Jersey Supreme Court held in Maia v. IEW Construction Group that both the six-year look-back period and liquidated damages provided by the state Wage Theft Act (WTA) do not apply retroactively. Notably, the WTA’s extended statute of limitations will only apply to conduct that occurred after the WTA’s effective date—August 6, 2019. As such, employees filing suit before August 6, 2025 to recover unpaid wages may only recover for conduct occurring after the WTA’s effective date even though the relevant time period would not include the full six-year look-back period. Although the look-back period is now six years, if an employee files a lawsuit today, that employee would only be able to recover for conduct dating back to August 6, 2019 (which is a limitations period of less than 5 years). Similarly, employees may only recover liquidated damages—which were not previously available under the state wage and hour laws—for conduct occurring after the WTA’s effective date.

For background, the New Jersey Wage and Hour Law (WHL) and the New Jersey Wage Payment Law (WPL) require employers timely pay their employees for all wages earned, including any overtime. In August 2019, New Jersey enacted the WTA, amending the WHL and WPL by adding liquidated damages and extending the statute of limitations from two years to six years. This means that, pursuant to the WTA amendments, employees who file suit seeking to recover unpaid wages may recover any unpaid wages within six years prior to the commencement of such lawsuit (often referred to as the “six-year look-back period”) plus liquidated damages up to 200% of the wages owed, together with costs and reasonable attorney’s fees.

On April 23, 2024, the U.S. Department of Labor (“DOL”) announced a new final rule through which it has significantly raised the bar for businesses to continue to classify their employees as exempt from overtime pursuant to the executive, administrative and professional (“EAP”) and “highly compensated employee” exemptions. Specifically, the DOL announced substantial increases to the salary threshold requirements for these exemptions, which will take effect on a staggered basis on July 1, 2024, and again on January 1, 2025.  

The New Salary Thresholds

The salary ...

On January 17, 2024, the Appellate Division of the New York Supreme Court for the Second Department held in Grant v. Global Aircraft Dispatch, Inc. that no private right of action exists for a violation of New York Labor Law (“NYLL”) Section 191, the frequency of payment provision that dictates how often New York employers must pay certain types of employees. The decision in Grant creates a departmental split with a previous decision issued by the First Appellate Department over whether a private right of action exists under the NYLL and arrives on the heels of Governor Hochul’s ...

With the new year comes raises in minimum wages, yet again.  As reflected in the charts below, in 2024, minimum wage and, in applicable jurisdictions, tipped minimum wage will increase in 23 states and in a number of counties and cities.

Accordingly, employers with minimum wage workers (or tipped minimum wage workers) should consult with counsel to ensure that their compensation practices are compliant with the laws in all of the jurisdictions in which they operate.

On December 27, 2023, and just in time for the 2024 ball to drop, the New York State Department of Labor (NYSDOL) finalized the salary thresholds for exempt employees that were proposed as a part of Minimum Wage Order Updates in October 2023. Similarly, New York passed Senate Bill S5572 in September 2023, increasing the salary thresholds for exempt employees under Article 6 of the New York Labor Law.

As a reminder, the classification of exempt or non-exempt is particularly important for determining which employees are (1) exempt from the overtime laws, meaning that such employees are ...

The Clash famously asked “Should I stay, or should I go?” on their 1982 album, Combat Rock, and with recent attacks on non-competes at both the state and federal level, some employers are imposing additional costs on employees who take advantage of an employer’s training opportunities only to leave and join a competitor. So-called “stay or pay” clauses, or training-repayment-agreement-provisions (TRAPs), typically require an employee to pay the employer the cost the employer incurred to train the employee if the employee leaves their employment within a certain ...

On March 23, 2023, Utah Governor Spencer Cox signed into law Senate Bill 73 (“SB 73”) expanding the group of employees eligible for tip pooling by allowing employers to include non-tipped employees in a bona fide tip pooling or sharing arrangement.

Historically, only “tipped employees” were permitted to participate in a tip pooling or sharing arrangement under Utah State law. This form of tip pooling is also allowed under federal law and is otherwise known as a traditional tip pool. A “tipped employee” is one who customarily and regularly receives tips or gratuities.”[1] Common examples of tipped employees include waiters and waitresses, whereas dishwashers, chefs, cooks, and janitors are examples of non-tipped employees.

In reversing a Nevada district court’s grant of summary judgment, the Ninth Circuit, in Cadena v. Customer Connexx LLC, recently held that the time call center employees spent booting up their computers is compensable. Because a functioning computer was necessary for the call center employees to do their job, the court unanimously agreed that the time required to turn on their computer and log in was “integral and indispensable to their principal activities” and, therefore, compensable, subject to certain limitations.