The Employer’s Wage and Hour Advisor

In June 2015, the Department of Labor (DOL) announced proposed changes to overtime regulations that would significantly increase the minimum salary required to classify an employee as an exempt executive, administrative, or professional employee, and proposed indexing those wages to the Bureau of Labor and Statistics data on annual earnings in future years. Those proposed regulations would increase the minimum weekly salary to the 40th percentile of weekly earnings for full-time salaried workers, which in 2016 the DOL projects will be $970 per week, or $50,440 per year. For highly compensated employees, the threshold would increase to the 90th percentile, or $122,148 annually.  

The dust has settled and now it is official:  Businesses that provide home care services can no longer rely on industry-specific exemptions to federal overtime and minimum wage requirements, and the final rule that says so now has the force and effect of law.

Employee claims under the Fair Labor Standards Act (FLSA) for unpaid minimum wages are routinely dismissed where the employer can demonstrate that wages, when averaged across work hours in a week, meet or exceed the minimum wage.  However, a federal judge in the District of Rhode Island has given plaintiffs an alternative argument to avoid such dismissal, which employers should note.  

Employers and other sponsors of apprenticeship programs take notice. Today, the U.S. Department of Labor (DOL) issued a Notice of Proposed Rulemaking (NPRM) intended to expand and update regulations concerning the National Apprenticeship Act of 1937. Among other things, these proposed regulations would add age (40 or older), genetic information, sexual orientation, and disability to the list of classifications protected under the statute and strengthen related affirmative action requirements.

The status of live-in home care workers and companionship employees under the Fair Labor Standards Act (FLSA) has become a moving target in recent years, and the most recent move spells big changes for the home care industry.

Are you paying the intern you just sent out to grab your morning cup of coffee?  If not, you may have a wage and hour violation on your hands.  Private employers have increasingly come under attack over their use of unpaid interns by the Department of Labor and private litigants.  This is especially the case where an unpaid intern performs tasks more akin to an administrative assistant than an on-the-job student/trainee.

Sometimes the hunter becomes the hunted.  That’s a lesson the U.S. Department of Labor (“DOL”) recently learned.  In an opinion dated July 2, 2015, the United States Court of Appeals for the Fifth Circuit reprimanded the DOL for pursuing “poorly documented” and “legally dubious” claims.  The Fifth Circuit found that the DOL had engaged in “uncivil and costly litigation tactics,” attempting to prevail by oppressively pursuing a very weak case.  Ultimately, the court held that the DOL had “acted in bad faith” and ordered the district court to enter an award against the DOL for hundreds of thousands of dollars in attorneys’ fees.

Is Uber just a software platform, or is it an employer of hundreds of thousands of drivers?  Federal and state courts in California are considering this issue, and their ultimate findings will have implications for the new start-up economy.

On July 15, 2015, the U.S. Department of Labor (DOL) articulated a standard that will be used to call into question independent contractor classifications. Specifically, the DOL published Administrator’s Interpretation No. 2015-1 (AI 2015-1), which is the first Administrator’s Interpretation in more than a year.

Further information has been made available to the public concerning the proposed changes to the FLSA’s “white-collar” exemptions in the 295 pages of materials released by the Department of Labor yesterday.