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The employment-related provisions of H.R. 6201, also known as the Families First Coronavirus Response Act (the Act) apply only to employers with fewer than 500 employees. However, determining whether a business entity – or a group of separate but related entities – has 500 or more employees is not as straightforward as it may seem. At the same time, the decisions employer make now about how they count employees may have serious collateral consequences later. As a result, employers should approach their Act assessment with added care.
Continue Reading Getting to 500 – employer considerations for meeting the head count exemption threshold in H.R. 6201

As discussed in our client alert addressing the growing COVID-19 crisis, U.S. employers face a number of complicated legal issues as they prepare for the possibility that their workforces will be impacted by the current emergency. In support of that effort, employers should begin preparing to address the following issues.

Before turning to those issues, as mentioned in our previous client alert, employers should strive to make the guiding principles behind all employer responses in this area a combination of compassion for employee impacts and reasonable flexibility. State and federal laws provide many minimum standards, but the best thing an employer can do in the midst of this growing epidemic is to take care of its people. Doing so is not just the right thing to do, but it also encourages employees to be reasonable in return and it mitigates the risk of future conflict with employees or legal exposure.Continue Reading Employer planning focus points for U.S. impacts of novel coronavirus (COVID-19)

Get ready, set…but wait…maybe not… As employers gear up to meet the swiftly approaching December 1, 2016, deadline to implement the Department of Labor’s (‘DOL”) new overtime pay requirements for white-collar workers, 21 states, the U.S. Chamber of Commerce, and several other business groups filed legal challenges in various courts to halt the changes The DOL’s Final Rule was specifically designed to raise the salary of low-wage workers who perform exempt work, and therefore, do not qualify to be paid for overtime. Although some welcome this amendment to the Fair Labor Standards Act (“FLSA”) for America’s workers, others believe the revisions basically ignore the type of work performed in favor of doubling the salary threshold for overtime exemption.  Although many employers are wondering if the filing of the new lawsuits will top the new rules from coming into force, they are advised to continue working diligently to adjust their business practices in order to ensure compliance with the law’s requirements until further notice.
Continue Reading We May Not Have Heard The Last Word . . . The New White Collar Exemption Rules

Today, the U.S. Department of Labor (DOL) released its highly anticipated final revisions to the Fair Labor Standards Act’s (FLSA) so-called “white collar” exemptions, the first major update to the federal overtime rules in more than a decade. Although the final rule is somewhat similar to the proposed rule published by the DOL last summer,…

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

Developments in wage and hour law made major waves for employers this summer. They include: (1) proposed new overtime regulations from the U.S. Department of Labor (DOL); (2) an announced crackdown by the DOL on employers who engage independent contractors; (3) new federal court standards for assessing whether unpaid interns should be paid like traditional employees; and (4) a minimum wage hike for certain New York employees. For those who may have missed any of our prior reports this summer, here is a recap, with links to more in-depth analysis.

1. DOL Proposes Regulations that Dramatically Expand FLSA Overtime Eligibility

On June 30, the DOL released its highly anticipated proposed revisions to the Fair Labor Standards Act’s (FLSA) overtime exemption regulations, representing the first major proposed change to federal overtime law in more than a decade.

The DOL’s proposal would more than double the minimum salary an employee must earn to even be eligible for exemption from the FLSA’s overtime pay requirements – from just under $24,000/year ($455/week) to $50,440/year ($970/week). This new salary threshold corresponds to the 40th percentile of earnings for all full-time U.S. salaried workers. In addition, the proposed regulations would allow the DOL to automatically raise the salary threshold annually, without the need for any further, formal rulemaking procedures, thereby enabling the DOL to keep pace with 40th percentile statistics as they may change going forward. The only welcome surprise for employers in the DOL’s proposal is that it does not seek to modify the “duties” tests associated with the FLSA “white collar” overtime exemption categories, although some speculate that the DOL may roll out revamped “duties” tests at a later date.

Before the DOL’s proposed regulations become final, they are subject to a public comment period (open now) and finalization. Whatever iteration of the regulations ultimately is adopted, the final regulations are not likely to take effect before mid-2016.

Continue Reading Miss Any of the Major Wage & Hour Law News this Summer? We’ve Got You Covered

Mark Goldstein contributed to the content of this post.

On Friday, in a major victory for employers, the Second Circuit Court of Appeals fell into line with Supreme Court precedent and held that courts must enforce arbitration agreements that permit an employee to pursue claims under the Fair Labor Standards Act only through individual arbitration. In doing so, the Second Circuit repudiated its own previous decision holding that courts need not do so when it would cost the employee more to arbitrate the claim than he or she could hope to win.Continue Reading Class Dismissed: Wage & Hour Class Action Waiver Enforced by Second Circuit

Q:        What is easiest way to get rid of a wage and hour class action?  

A:        Making an offer of judgment to moot the named plaintiff’s claim by proposing to pay him or her an amount that will fully satisfy his or her entire individual claim.

This is exactly the strategy that the employer utilized and which, at first blush, the U.S. Supreme Court approved in Genesis Healthcare Corp v. Symczyk. But don’t get too excited, a quick review of Genesis establishes that its utility will likely be limited. Continue Reading U.S. Supreme Court Limits Use of Offers of Judgment to Avoid Class Actions