Department of Labor (DOL)

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The Biden administration issued new guidance immediately following his Jan. 20 inauguration abrogating former U.S. President Trump’s Executive Order 13950 on Combating Race and Sex Stereotyping (the Order). Implementation of EO 13950 had previously been stayed by a preliminary nationwide injunction entered Dec. 22, 2020, in California federal court. As a result, federal contractors or organizations with a federal contract currently have no obligation to revise their diversity and equity training to omit the prohibited training topics set forth in EO 13950.

As previously discussed, EO 13950 sought to reshape the way government contractors performed diversity and equity training. It prohibited, among other things, restrictions on training about affirmative action, discussion of reparations and implicit bias, and guidance regarding limiting micro aggressions. Further, the Order mandated employer postings in the workplace as well as compliance communications with organized labor groups.Continue Reading DOL stops enforcing Executive Order 13950 on diversity training

The Department of Labor’s (DOL’s) Wage and Hour Division recently issued three new opinion letters addressing the Fair Labor Standards Act’s (FLSA’s) sales exemptions. Two letters address the outside sales exemption, and the third addresses the retail or service establishment exemption.

FLSA2020-6: Do salespeople who travel to different locations to sell their employers’ products using their employers’ mobile assets qualify for the outside sales exemption?

The first opinion letter, FLSA2020-6, addresses whether salespeople who use “stylized” trucks to travel to high-population areas and events to sell products fall within the outside sales exemption of the FLSA.

Ordinarily, a position will qualify for the exemption only if (a) the employee’s primary duty is “making sales” to or “obtaining orders or contracts for services” from customers; and (b) the employee is “customarily and regularly engaged” in performing duties “away from the employer’s place or places of business.”  29 C.F.R. sections 541.500(a), 541.501, 541.502. The exemption includes not only sales work itself, but also “work performed incidental to and in conjunction with the employee’s own outside sales or solicitations.” 29 C.F.R. section 541.500(b).

In FLSA2020-6, the DOL concluded that the employees satisfy both requirements and are therefore exempt.Continue Reading Are your sales employees exempt? DOL provides guidance in three new opinion letters

Today the Department of Labor (DOL) updated the required poster that employers subject to the Families First Coronavirus Response Act (those with fewer than 500 employees) must place on their premises to satisfy their employees of the rights requirement under the Act. The update corrects the 10 weeks of paid sick leave under the Family and Medical Leave Act expansion cap amount to $10,000.

Since a vast majority of employees are now working remotely, the DOL has advised that employers may satisfy the standard notice requirement of hanging the poster in a conspicuous place on the employer’s premises (i.e., a kitchen, breakroom or other accessible area) by emailing, or directly mailing, the notice to employees, or by posting the notice on the employer’s internal or external website. Employers that are not fully remote must also post the notice. Similarly, employers who are currently all remote must remember to post the notice once in-office operations resume. 
Continue Reading DOL issues updated FFCRA notice poster

Yesterday the Department of Labor (DOL) issued the required poster that employers subject the Families First Coronavirus Response Act (those with fewer than 500 employees) must place on their premises to satisfy the employees of rights requirement under the Act.

Since a vast majority of employees are now working remotely, the DOL has advised that employers may satisfy the standard notice requirement of hanging the poster in a conspicuous place on the employer’s premises (i.e., a kitchen, breakroom or other accessible area) by emailing, or directly mailing, the notice to employees, or by posting the notice on the employer’s internal or external website. Employers that are not fully remote must also post the notice. Similarly, employers who are currently all remote must remember to post the notice once in-office operations resume.Continue Reading DOL issues FFCRA notice poster

Recently, a Texas federal judge struck down an Obama administration Department of Labor rule that doubled the salary employees must make to be considered exempt from overtime pay.  The rule’s invalidation should provide immediate relief to employers concerned about additional overtime pay, or increased salaries that the Obama administration’s overtime rule would have required.

In 2016, after years of consideration, the Obama administration issued the long-anticipated DOL rule that increased the minimum salary for exempt workers (workers exempt from receiving overtime pay) from $23,600 to just more than $47,000, and the minimum salary for workers who qualify for the “highly compensated” exemption from $100,000 to about $134,000.  Late last year, U.S. District Judge Amos Mazzant issued a preliminary injunction that blocked the rule from coming into effect.  Judge Mazzant granted summary judgment in favor of certain business groups that had challenged the Obama administration’s rule.  Judge Mazzant reasoned that the significant salary increase would render the analysis of employees’ duties, functions, and tasks meaningless, and exclude from the exemption many employees who perform primarily exempt duties.
Continue Reading DOL’s Overtime Rule Invalidated

We round out our series on recent federal agency action by discussing the U.S. Department of Labor’s (DOL) recent Notice of Proposed Rulemaking for the Workforce Innovation and Opportunity Act (WIOA). The Proposed Rules would update existing nondiscrimination and equal opportunity provisions of the WIOA, which is the DOL’s primary mechanism for providing job training funding. Thus, the proposed rules would only impact organizations funded by the DOL to provide job training under the WIOA. This is not a small number. There are approximately 34,450 recipients of WIOA funding annually, and those organizations serve approximately 56 million individuals.

Currently, the WIOA “prohibits the exclusion of an individual from participation in, denial of the benefits of, discrimination in, or denial of employment in the administration of or in connection with, any programs and activities funded or otherwise financially assisted in whole or in part under Title I of the WIOA because of race, color, religion, sex, national origin, age, disability, political affiliation or belief, and for beneficiaries only, citizenship status, or participation in a program or activity that receives financial assistance under Title I of WIOA.” The Proposed Rules would update the WIOA, as the DOL believes that “the current rule does not reflect recent developments in equal opportunity and nondiscrimination jurisprudence.” 
Continue Reading DOL Seeks to Expand the Definition of Illegal Discrimination

The past few weeks have brought us a flurry of activity from federal agencies poised to re-shape the employment landscape, from upending traditional notions of the employment relationship to re-defining what it means to engage in unlawful retaliation. Now, as the dust settles, we will take a look at each of these administrative actions in this four-part series.

In this first installment, we discuss an Administrator’s Interpretation (Interpretation) issued by the U.S. Department of Labor (DOL) concerning joint employment under the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). The Interpretation is perhaps most impactful for companies that rely on third-party contractors, such as staffing agencies, to regularly provide services outside of the companies’ core businesses. According to the DOL, such companies are likely no longer shielded from employment-related liability merely by their use of third-party contractors, but instead are joint employers liable for workplace violations as if they were the primary employer.
Continue Reading DOL Issues New Guidelines on Joint Employment

As previously reported, the Fifth Circuit recently enforced a private settlement of certain FLSA claims. More recently, however, Judge Christopher Conner of the U.S. District Court for the Middle District of Pennsylvania reached the opposite conclusion and agreed with the majority view of courts that unsupervised FLSA settlements are not enforceable.Continue Reading Pennsylvania Requires Court Approval for Enforcement of Wage/Hour Settlements Under FLSA

Recently, the Fifth Circuit created a crack in a thirty-year old doctrine, based on the Eleventh Circuit’s Lynn’s Food Stores, Inc. v. United States decision and followed by nearly all federal courts, that wage and hour claims brought by individuals under the Fair Labor Standards Act (“FLSA”) can be settled only with the signoff of…

On Monday, August 20, a federal judge in Philadelphia upheld the Department of Labor ("DOL") rule setting minimum wage requirements for foreign workers holding H-2B visas. The proposed rule has drawn much attention, and criticism, because it potentially will cost $874,000,000 or more per year in increased labor costs for employers with H-2B visa holders.…