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Photo of The Employer's Wage and Hour Advisor Matthew E. Radler
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Showing 11 posts by Matthew E. Radler.

Restoring Balance: Supreme Court Upholds Class Action Waivers in Employment Arbitration Agreements, Providing Employers with Some Relief from Rampant Wage and Hour Class Litigation

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On May 21, 2018, the Supreme Court upheld the use of class action waivers in employment arbitration agreements, which is one of the few options employers have to limit costly “bet the business” class actions.  Prior to this decision, the National Labor Relations Board (NLRB) and a few appellate courts had held that these waivers were invalid because they conflicted with the National Labor Relations Act (NLRA), the federal law governing collective bargaining and other labor union issues. In its recent decision, Epic Systems Corp. v. Lewis, the high court rejected that conclusion and reinstated the practice of using class action waivers nationwide.  In light of this ruling, employers should consider revising their policies or adopting new arbitration agreements. More

Policy Innovation or Pandora’s Box? The Department of Labor Considers Revising Pay Calculations in 2018 Regulatory Agenda

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The Department of Labor (DOL) surprised many observers by announcing it would issue a new proposed rule on calculating the “regular rate of pay” for determining overtime wages in its recently issued 2018 regulatory agenda. The DOL has only stated that it intends to “clarify, update, and define regular rate requirements” for the Fair Labor Standards Act, and that the proposed rule will be issued in September 2018. More

Department of Labor Issues New Opinion Letters, Reversing Obama-Era Policy

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The Department of Labor (DOL) recently issued its first set of opinion letters since 2010, when the Obama administration suspended the practice of issuing such guidance. The return of opinion letters is welcome news for employers. Among other things, obtaining the DOL’s informal opinion on a wage and hour compliance question may help avoid costly disputes and, in certain circumstances, provide affirmative defenses to liability in the event of litigation. More

After Cold Reception from Appellate Courts, DOL Rescinds Internship Enforcement Guidance and Adopts “Primary Beneficiary” Test

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In the wake of multiple federal courts rejecting its previous guidance, the Department of Labor (DOL) has revised its guidelines for determining when an intern may qualify as an “employee” under the Fair Labor Standards Act (FLSA.) Going forward, the DOL will follow the “primary beneficiary” test–a standard endorsed by several appellate courts. This shift may reduce costly investigations and lawsuits, because the “primary beneficiary” factors are viewed as providing more flexibility in structuring unpaid internship programs. More

Employers Beware: The Sixth Circuit Clarifies How Sales Commission Plans Can Violate Wage and Hour Laws – Even When the Employer Does Not Enforce the Plan

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The Sixth Circuit’s recent decision in Stein v. hhgregg, Inc. should be required reading for any employer with a commission workforce. More

A Return to the “Direct Control” Standard for Joint Employers

Today, in a return to pre-Obama era standards, the U.S. Department of Labor (DOL) announced the withdrawal of two informal guidance letters impacting the “joint employer” doctrine. More

Federal Court Extends Deadline in Appeal of FLSA Amended Overtime Regulations While Government Decides Whether to Press Case or Drop It

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A hot topic in 2016 was the implementation of new regulations more than doubling the minimum required salary amount for the executive, administrative and professional exemptions under the Fair Labor Standards Act (FLSA). In late November 2016, a federal court in Texas enjoined the rules from taking effect, and in December, President Obama’s administration appealed that ruling. More

Seventh Circuit Invalidates Class Action Waivers and Sets the Stage for a Supreme Court Battle

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In a recent opinion, the U.S. Court of Appeals for the Seventh Circuit broadened the conflict over whether employers may require employees to arbitrate their employment claims individually, instead of through class or collective actions. Specifically, in Lewis v. Epic Systems Corp., issued on May 26, 2016, the Seventh Circuit sided with the National Labor Relations Board (NLRB) and held that collective action waivers violate the National Labor Relations Act (NLRA) and cannot be enforced.  More

Major revisions to federal overtime exemptions are one step closer to taking effect, and sooner than you may have expected

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The United States Department of Labor’s long-anticipated revisions to the Fair Labor Standards Act’s (FLSA) overtime regulations may become effective sooner than expected. The Department announced on March 14, 2016 that it submitted its final overtime rules to the Office of Information and Regulatory Affairs (OIRA), part of the Office of Management and Budget. Once OIRA signs off on the final rules, publication could take place as early as April or May. The Department of Labor previously estimated publication would take place in July of 2016.  More

2016 Ushers in a Patchwork of New Minimum Wage Laws

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The minimum wage requirements in different states, cities and counties across the country became even more of a patchwork on New Year’s day, with fourteen states adopting increased minimum wages above the federal standard of $7.25 per hour. Such states include California, Massachusetts, Michigan and Nebraska. More than a dozen cities and counties also increased their minimum wages at the end of 2015 or will do so in the Summer of 2016. Employers should pay close attention to minimum wage increases at the state and local level, because they can impact more than just employees earning the current minimum wage. More

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