At the time we are posting this, we are just weeks away from the inauguration of President-Elect Joseph Biden. Although perhaps not at the very top of the list of questions about the forthcoming Biden administration, somewhere on the list has to be this question: “What changes will we see in wage-hour law?”
We don’t have the proverbial crystal ball, but there are a number of issues that the Biden administration may focus on at some point during the next four years, be it through legislation, new rules implemented by the Department of Labor (DOL) or even executive orders. They may ...
The times they are a-changin’ and Washington’s rules relating to overtime pay are changing with them. Effective July 1, 2020, the Washington State Department of Labor & Industries (“L&I”) has updated the criteria for workers to be exempt from receiving overtime pay, paid sick leave, and other requirements under the state Minimum Wage Act. These changes affect executive, administrative, and professional workers, as well as outside salespeople and computer professionals across all industries in Washington State.
Overtime exemption rules generally require “white ...
As previously discussed, the federal Department of Labor has begun the process of increasing the minimum salary threshold for employees that fall under the “white collar” exemptions. Joining Alaska, New York, and California, Washington State and Maine have now approved higher salary thresholds for employees that fall under the exemptions; Colorado is expected to follow in early 2020.
Effective July 1, 2020, Washington employers will be required to pay a higher salary to satisfy the professional, administrative, and executive exemptions, with gradual increases from July ...
On November 21, 2019, the Pennsylvania Department of Labor and Industry (“DLI”) formally withdrew new regulations that would have increased the minimum salary requirements for the Pennsylvania Minimum Wage Act’s (“PMWA”) white-collar exemptions. The withdrawal occurred on the same day the state’s Independent Regulatory Review Commission (“IRRC”) was scheduled to consider the new requirements and rule upon them at a public meeting.
The Withdrawn Rule
The final rule was issued on October 17, 2019, and would have increased the minimum salary threshold for the ...
On April 12, 2018, the Wage and Hour Division of the U.S. Department of Labor (“DOL”) issued the first Opinion Letters since the Bush administration, as well as a new Fact Sheet. The Obama administration formally abandoned Opinion Letters in 2010, but Secretary of Labor Alexander Acosta has restored the practice of issuing these guidance documents. Opinion Letters, as Secretary Acosta states in the DOL’s April 12 press release, are meant to explain “how an agency will apply the law to a particular set of facts,” with the goal of increasing employer compliance with the Fair ...
Even employers who were opposed to the new overtime regulations are in a quandary after the District Court for the Eastern District of Texas enjoined the Department of Labor from implementing new salary thresholds for the FLSA’s “white collar” exemptions.
Will the injunction become permanent? Will it be upheld by the Fifth Circuit?
Will the Department of Labor continue to defend the case when the Trump Administration is in place?
What does the rationale behind the District Court’s injunction (that the language of the FLSA suggests exempt status should be determined based ...
In May of this year, the U.S. Department of Labor (“DOL”) announced its final rule to increase the minimum salary for white-collar exemptions, effective December 1, 2016. With less than two months to go before that new rule takes effect, employers still have time to decide how to address those otherwise exempt employees whose current salaries would not satisfy the new rule, by either increasing their salaries or converting them to non-exempt status.
The New Salary Thresholds
Effective December 1, 2016, the salary threshold for the executive, administrative, and professional ...
A group of 21 states ("the States") has filed a Complaint in the Eastern District of Texas challenging the new regulations from U.S. Department of Labor that re-define the white collar exemptions to the overtime requirements of the FLSA. The States argue the DOL overstepped its authority by, among other things, establishing a new minimum salary threshold for those exemptions.
Pursuant to the new regulations from the U.S. Department of Labor, effective December 1, 2016:
- the salary threshold for the executive, administrative, and professional exemption will effectively double ...
In May, the Department of Labor (“DOL”) announced its final rule to increase the minimum salary for white collar exemptions. With little more than two months to go before that new rule takes effect on December 1, 2016, employers still have time to decide how to address those otherwise exempt employees whose current salaries would not satisfy the new rule by either increasing their salaries or converting them to non-exempt status.
But some of those decisions may not be easy ones. And they may create some unexpected challenges, both financially and operationally.
New Salary ...
As our readers know, for the purposes of certain blog entries, I have unilaterally declared that I am the Secretary of Labor.
Effective immediately:
- The “computer professional” exemption applies to anyone with a salary of at least $800 per week whose primary duty requires “highly specialized knowledge of computers and software.” The exemption now includes employees who provide help desk services, troubleshooting support, or who install hardware or software.
- In regard to New York law, building owners who provide free apartments to their janitors can still count the value ...
By: Kara M. Maciel
The following is a selection from the Firm's October Take 5 Views You Can Use which discusses recent developments in wage hour law.
- IRS Will Begin Taxing a Restaurant's Automatic Gratuities as Service Charges
Many restaurants include automatic gratuities on the checks of guests with large parties to ensure that servers get fair tips. This method allows the restaurant to calculate an amount into the total bill, but it takes away a customer's discretion in choosing whether and/or how much to tip the server. As a result of this removal of a customer's voluntary act, the ...
By: Kara M. Maciel
Earlier this month, we released our Wage and Hour Division Investigation Checklist for employers and have received a lot of great feedback with additional questions. Following up on that feedback, we will be regularly posting FAQs as a regular feature of our Wage & Hour Defense Blog.
In this post, we address a common issue that many employers are facing in light of increased government enforcement at the state and federal level from the Department of Labor.
QUESTION: “I am aware that my industry is being targeted by the DOL for audits and several of my ...
By Douglas Weiner and Kara Maciel
“There’s a new sheriff in town.” With those words in 2009, Secretary Hilda Solis initiated a policy at the Department of Labor that emphasized increased investigations and prosecutions of violators rather than the prior administration’s emphasis on providing compliance assistance.
Her departure – announced yesterday – is unlikely, however, to have much effect on the Department’s current aggressive enforcement policy, as the top enforcement officer of the Department remains Solicitor of Labor M. Patricia Smith. Solicitor ...
Wage and hour investigations and class action lawsuits continue to be a potentially serious problem for many employers, resulting in an abundance of new cases filed and many large settlements procured. In addition, in September 2011, under the guidance of the Obama Administration, the Department of Labor and IRS announced an effort to coordinate with each other to address misclassification of employees as independent contractors, which is resulting in additional investigations, fines, and/or legal liability levied on an employer.
By Amy Traub and Desiree Busching
Like the fashions in the magazines on which they work and the blockbuster movies for which they assist in production, unpaid interns are becoming one of the newest, hottest trends— the new “it” in class action litigation. As we previously advised, there has been an increased focus on unpaid interns in the legal arena, as evidenced by complaints filed by former unpaid interns in September 2011 against Fox Searchlight Pictures, Inc. and in February 2012 against Hearst Corporation. In those lawsuits, unpaid interns working on the hit ...
Wage Hour laws and regulations are complex, non-intuitive, and constantly changing. Mistakes in wage and salary administration have led to class actions resulting in six and seven figure recoveries against the most sophisticated employers - banks and major industrial giants as well as smaller employers without in-house legal and high level Human Resources officials. Peter M. Panken, Lauri Rasnick and Douglas Weiner in our New York Office have recently authored an article in conjunction with a major national Continuing Legal Education program in Washington entitled: “ ...
By John F. Fullerton, III, Douglas Weiner, and Meg Thering
The plague of lawsuits for unpaid overtime compensation by employees who claim that they were misclassified by their current or former employer as “exempt” from overtime under the “administrative” exemption of the Fair Labor Standards Act shows no signs of receding. These lawsuits continue to present challenges to employers, not just in terms of the burdens and costs of defending the cases, but in the uncertainty of the potential financial exposure.
Read the full article online.
By Peter M. Panken, Michael S. Kun, Douglas Weiner, and Larissa Lalor-Rosado
Misclassification of employees as exempt from overtime compensation has become a cottage industry for plaintiff’s lawyers and for the United States Department of Labor (“DOL”) in the Obama years. One of the most difficult issues is whether employees meet the so-called administrative exemption to the Wage Hour laws. In Hines v. State Room, the United States Circuit Court in New England offered some clarity and help to beleaguered employers holding that former banquet sales managers were exempt ...
By David Garland and Douglas Weiner
In February 2011, the U.S. Court of Appeals for the Ninth Circuit gave a resounding victory to employers in the pharmaceutical industry by finding that pharmaceutical sales representatives are covered by the outside sales exemption of the Fair Labor Standards Act (“FLSA”). Christopher v. SmithKline Beecham, No. 10-15257 (9th Cir. Feb. 14, 2011). Plaintiffs, and the U.S. Department of Labor (“DOL”) in an amicus brief, had argued the exemption did not apply because sales reps are prohibited from making the final sale. Prescription ...
By Douglas Weiner and Meg Thering
On October 20, 2011, the Computer Professionals Update Act (“the CPU Act”) – one of the first potential pieces of good news for employers this year – was introduced in the U.S. Senate. If passed, the CPU act would expand the computer employee exemption of the Fair Labor Standards Act (“FLSA”). S. 1747.
Unlike much of the other legislation affecting employers that has been proposed or passed this year, the CPU Act would make business easier for employers and decrease the risk of employee misclassification lawsuits. If the proposed ...
By Doug Weiner
In a decision dated January 5, 2010 the D.C. Circuit raised that question in a case involving the administrative exemption in a Fair Labor Standards Act class action.
Stating the District Court had no occasion to decide whether the job of a GEICO auto damage adjuster is so easy a caveman could do it, (referring to GEICO’s well known ad campaign in a light hearted footnote) the appellate court held that GEICO satisfied its burden of proof that its employees performed exempt administrative duties. The appellate court reversed the district court’s summary judgment for ...
Furloughs are a hot topic in today's economy. I previously reported on the potential usefulness of furloughs, as well as the risk that reducing an employee's salary as part of a furlough program could run afoul of the "salary basis" test and jeopardize the employee's exempt status.
Recognizing the need for legal guidance on this issue, the U.S. Department of Labor's Wage and Hour Division recently issued a user-friendly "Frequently Asked Questions" fact sheet on furloughs. (Special thanks to my EBG colleague Elissa Silverman for bringing this to my attention.)
I don't ...
The following is a reprint of a client alert authored by EBG attorneys Doug Weiner and Frank Morris, Jr. It should be of interest to all Florida employers that are considering a reduction in force.
For many employers, these are desperate economic times. Every entity facing diminished revenue must consider cost cuts to survive. As news reports show, reductions in force (RIFs) are being used daily to achieve cost savings, and for some employers they may be the best solution. In some cases, however, the savings are not immediate as a result of statutorily required or voluntary notice ...
The U.S. Department of Labor's Wage & Hour Division has issued two new opinion letters addressing circumstances under which employers may not reduce the hours of exempt employees without running afoul of the "salary basis" test and risking loss of the employees' exempt status.
First, some background. Employees exempt from the FLSA's minimum wage and overtime requirements as professional, executive, or administrative employees must be paid a salary of at least $455 per week. Under 29 C.F.R. § 541.602(a),
[a]n employee will be considered to be paid on a "salary basis" ...
Blog Editors
Recent Updates
- California Minimum Wage Will Still Increase Even Though Voters Rejected a Minimum-Wage Hike
- Not So Final: Texas Court Vacates the DOL’s 2024 Final Overtime Rule
- Voters Decide on State Minimum Wages and Other Workplace Issues
- Second Circuit Provides Lifeline to Employers Facing WTPA Claims in Federal Court
- Time Is Money: A Quick Wage-Hour Tip on … FLSA Protections for Nursing Mothers