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Total Articles: 10

Full 9th Circuit Approves "20% Rule" for Tipped Employees

Many years ago, the U.S. Department of Labor (DOL) issued guidance known as the "20% Rule" or "80/20 Rule," which provides that, where tipped employees spend in excess of 20% of their workweek on non-tip-earning tasks, no tip credit may be taken for the time spent in such duties. The 20% Rule has been the subject of much litigation in courts across the country. In September 2017, a three-judge panel of the Ninth Circuit Court of Appeals rejected the DOL’s guidance, finding that it was not entitled to any deference.1 A year later, on September 18, 2018, the full Ninth Circuit reversed the earlier three-judge panel decision, and held that the DOL guidance was entitled to deference,2 meaning that the 20% Rule is alive and well (at least in the Ninth Circuit).

Hurricane Florence and the FLSA

With Hurricane Florence threatening the Carolinas, this is a good time for employers to review their inclement weather policies and to make sure they properly compensate employees who miss work because of adverse weather.

Fair Workweek Laws: Navigating the What, Where, and How of Compliance

Employers currently face a patchwork of state and local “fair workweek” laws that are difficult to navigate. While federal lawmakers have recently stepped into the fray with their own proposals, seeking to establish more consistent nationwide protections, these proposals are unlikely to become law anytime soon. In the meantime, employers should stay apprised of the varying legal protections in order to ensure compliance.

Department of Labor Issues Additional FLSA Opinion Letters, Acknowledges New “Fair Reading” Standard for Overtime Exemptions

In furtherance of a practice reinstituted earlier this year, on August 28, 2018 the DOL’s Wage Hour Division (WHD) issued four new opinion letters covering FLSA topics. The current administration began that practice when, in January of this year, it reinstated seventeen opinion letters originally issued during the George W. Bush administration but subsequently withdrawn during the Obama administration. The WHD then issued three new letters in April, prior to last week’s issuance. “Opinion letters help provide greater clarity for American job creators and employees,” commented Acting Wage and Hour Division Administrator Bryan Jarrett, and “show the ongoing efforts of the Department to provide the tools employers need to comply with the law and protect workers.”

Picking Up The Pace: USDOL Tackling Overtime Updates and New Opinion Letters

As we wrote about (HERE) earlier this year, the Wage and Hour Division of the United States Department of Labor has been very active this year. This week alone, the USDOL issued a press release announcing that it will hold “listening sessions” in Atlanta, Seattle, Kansas City, Denver and Providence, “to gather views” on the white collar exemptions. Although it is not clear what, if any, new information USDOL will share during these sessions, USDOL says it “plans to update the Overtime Rule and is interested in hearing the views and ideas of participants on possible revisions to the regulations.” Our attorneys will update the blog with additional information following the event.

DOL to Conduct Overtime Rule Listening Sessions in Multiple Cities in September 2018

The U.S. Department of Labor (DOL) will be conducting listening sessions in five different cities across the United States in September 2018 to gather views concerning potential revisions to the white-collar exemption regulations under the federal Fair Labor Standards Act (FLSA).

Independent Contractor Misclassifications is Focus of New Jersey-U.S. Labor Department Partnership

Demonstrating a heightened focus on worker misclassification, the New Jersey Department of Labor has entered into a memorandum of cooperation with the U.S. Department of Labor with respect to enforcement actions related to independent contractor misclassifications.

Taco Bell’s Prohibition on Employees “Heading for the Border” With Discounted Meals Does Not Violate California Meal Break Law, Ninth Circuit Rules

Affirming a district court order dismissing a putative class action, the Ninth Circuit Court of Appeals has held that Taco Bell’s policy of requiring employees to eat employer-discounted meals in the restaurant does not convert the meal period into “on duty” time such that the meal period becomes compensable under California law. Rodriguez v. Taco Bell Corporation, 2018 U.S. App. LEXIS 19825 (9th Cir. July 18, 2018).

How USDOL’s So-Called "20% Rule" Has Obscured the FLSA's Definition of a "Tipped Employee"

Section 3(m) of the federal Fair Labor Standards Act ("FLSA") permits an employer to take the "tip credit" for "tipped employees". Certain requirements must be met though, including that the employee must earn a sufficient amount in tips such that when the direct cash wage (at least $2.13 per hour) and tips are combined, the employee has made at least $7.25 per hour.

WPI Wage Watch: Minimum Wage & Overtime Developments (July Edition)

Usually legislative and regulatory developments slow down in the summer months, which is good news because July brings more pressing matters than reading bills or proposed rules, like eating too many hot dogs or yelling at an air conditioner. So to help employers work on their compliance tans – and avoid getting burned – below we will quickly recap this month’s minimum wage, overtime, and tip-related developments.