Total Articles: 107
XpertHR • August 27, 2019
Under the Fair Labor Standards Act (FLSA), the regular rate of pay on which overtime is based must include "all remuneration for employment" (with certain exceptions).
Phelps Dunbar LLP • August 26, 2019
In an important ruling that could have a big impact on oil and gas related industries in Louisiana, Mississippi and Texas, the U.S. Court of Appeals for the Fifth Circuit settled a crucial question on companies’ use of day rate compensation and overtime.
Ogletree Deakins • June 18, 2019
On June 10, 2019, the Supreme Court of the United States unanimously ruled that state wage and hour laws do not apply to offshore drilling workers where federal law addresses the relevant issue.
Fisher Phillips • May 29, 2019
The comment period for USDOL's most recent proposal regarding the Fair Labor Standards Act's white-collar exemptions (Overtime Rule 2.0) has closed. You probably have heard that the proposed salary level test is "too high" and "too low", and it all feels a bit like déjà vu. In actuality there have been some notable improvements up to this point, though hopefully more to come before finalization.
The Department of Labor (DOL) made big news last month by proposing new regulations to raise the minimum annual salary for overtime-exempt employees from its current level of $23,660 to $35,308.
Brody and Associates, LLC • April 17, 2019
On Thursday, March 7, 2019, the Wage and Hour Division of the U.S. Department of Labor (DOL), published a long-awaited Notice of Proposed Rulemaking (NPRM) to revise the “white-collar” overtime exemption regulations and replace the Obama Administration’s controversial proposal. The DOL’s proposed rule increases the minimum salary threshold required for workers to qualify for the Fair Labor Standards Act’s (FLSA) white-collar exemption from $23,660 per year ($455 per week) to $35,308 per year ($679 per week). The previous rule, which was proposed in 2016 under the Obama Administration, would have raised the threshold to $47,476 per year ($913 per week). That proposed increase never came to fruition as it was temporarily enjoined by a Texas federal judge in November 2016 before being permanently blocked in August 2017.
Jackson Lewis P.C. • April 02, 2019
The Department of Labor (DOL) has issued a Notice of Proposed Rulemaking (NPRM) to revise the regulations governing the calculation of the regular rate under the Fair Labor Standards Act (FLSA).
Goldberg Segalla LLP • April 02, 2019
On March 29, the United States Department of Labor (DOL) issued a request for comments on proposed rules for calculating overtime for non-exempt employees. Specifically, the document notes the confusion of what items of compensation are included in the rate calculation for determining an employee’s regular rate for overtime purposes. Noting that a majority of part 778 was promulgated more than 60 years ago, the DOL noted that workplace laws and types of compensation received in the workplace have evolved dramatically.
Ogletree Deakins • April 02, 2019
On March 28, 2019, the U.S. Department of Labor (DOL) announced a proposed rule that would update and clarify regular rate requirements. Specifically, the proposed rule lists perks and benefits, such as unused paid leave and reimbursed expenses that employers can exclude when calculating an employee’s regular rate of pay. This article provides concise answers to employers’ frequently asked questions about the proposed rule.
Littler Mendelson, P.C. • March 29, 2019
On March 28, 2019, the U.S. Department of Labor (DOL) released a proposed rule to amend the regulations at 29 CFR Part 778 to clarify and update the “regular rate” requirements under section 7(e) of the Fair Labor Standards Act (FLSA), 29 USC §207(e), focusing on the types of compensation and benefits that employers must include in the overtime calculation.
Fisher Phillips • March 29, 2019
The USDOL has continued to plow through its regulator agenda. Today it released its proposed guidance regarding the "regular rate" for purposes of calculating FLSA overtime pay. The NPRM is intended to update and clarify the FLSA’s requirements regarding the "regular rate" and the (rarely used) alternative "basic rate".
The US Department of Labor (DOL) has proposed rules to update and clarify which forms of compensation must be included when calculating overtime pay under the Fair Labor Standards Act (FLSA).
Jackson Lewis P.C. • March 10, 2019
The U.S. Department of Labor (DOL) has issued a new proposed rule raising the annual minimum salary requirements for the Fair Labor Standards Act (FLSA) “white collar” overtime exemptions (executive, administrative, and professional). Under the new proposed rule, the salary level for the white collar exemptions will increase to $35,308, or $679 per week.
Phelps Dunbar LLP • March 10, 2019
On Thursday, March 7, 2019, the United States Department of Labor (DOL) issued its long-awaited proposal to replace the Obama administration's controversial overtime rule. The DOL’s new proposed rule raises the minimum salary threshold required for workers to qualify for the Fair Labor Standards Act's "white collar" exemptions from $23,660 to $35,308 per year. The previous rule, proposed under the Obama administration in 2016, would have raised the threshold to $47,892. The Obama DOL endorsed increase was to have gone into effect in January 2017 but was temporarily enjoined by a Texas federal judge in November 2016 before being permanently blocked by the same judge on August 31, 2017.
Littler Mendelson, P.C. • March 10, 2019
On March 7, 2019, the Wage and Hour Division of the U.S. Department of Labor, through its Acting Administrator Keith Sonderling, published the long-awaited Notice of Proposed Rulemaking (NPRM) to revise the “white collar” overtime exemption regulations. The DOL proposes to increase the minimum salary for exemption from $455 per week ($23,660 annualized) to $679 per week ($35,308 annualized). Employees with total annual compensation of $147,414 (including at least $679 per week paid on a salary basis) – up from the current $100,000 total annual compensation – would qualify for exemption under the test for highly compensated employees (HCE).
Fisher Phillips • March 10, 2019
We have waited years to see where the U.S. Department of Labor would land with its much anticipated revised “overtime rule”—late yesterday, the agency delivered. The USDOL released its long-awaited proposed rule which, if adopted, would set the minimum salary threshold at $679 per week, annualizing to $35,308 per year. For now, the proposed rule does not include an automatic update provision (which many were concerned would simply serve to periodically inflate the threshold level), nor does it revise the duties test that accompanies the rule.
Brody and Associates, LLC • March 06, 2019
Unless you were hibernating for all of 2016, you know the federal Department of Labor (“DOL”) was set to release a new overtime rule for the white-collar exemptions that would have doubled the salary threshold. The rule, however, was suspended by a federal court in November 2016 and ultimately struck down. The pending issue is just how much salary will you have to pay certain otherwise exempt employees, to maintain their exempt status. The answer will come through a slow and winding path.
Ogletree Deakins • January 20, 2019
The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) officially sent its notice of proposed rulemaking (NPRM) to revise the Part 541 regulations to the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) for review. The OIRA website states that it received the Part 541 NPRM on January 16, 2019, and that the proposal is “economically significant.” At this juncture, it is not known what the Part 541 NPRM contains or how long OIRA will take to review the proposed rule before it can be returned to the DOL for publication in the Federal Register.
Jackson Lewis P.C. • January 15, 2019
The DOL’s new overtime rule, intended to replace the rule announced late in the Obama administration but subsequently declared invalid by a federal court, finally has made, or soon will make its way, to the Office of Information and Regulatory Affairs (OIRA), a division of the Office of Management and Budget (OMB), Bloomberg Law has reported. OIRA is responsible for reviewing significant regulations before publication to ensure agency compliance with the principles in Executive Order 12866, which include incorporating public comment, considering alternatives to the rulemaking, and analyzing both costs and benefits.
Fisher Phillips • January 13, 2019
The U.S. Department of Labor is moving closer to releasing is proposed changes to the white-collar exemptions a/k/a the infamous so-called "Overtime Rule".
Littler Mendelson, P.C. • January 11, 2019
The U.S. Department of Labor will send its draft of the long-awaited Notice of Proposed Rulemaking (NPRM) on the “white collar” overtime exemptions to the White House Office of Management and Budget (OMB) for review on or before Friday, January 11, 2019, as reported by Bloomberg Law and independently confirmed by Littler. OMB review is the final step before publication of the proposed rule in the Federal Register.
Ogletree Deakins • January 06, 2019
On December 21, 2018, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) released an opinion letter, FLSA2018-28, in which it addresses minimum wage and overtime pay requirements for employees with varying average hourly rates. The employer in question calculates pay by multiplying an employee’s time with clients by his or her hourly rate and then dividing that number by the employee’s total hours worked, a figure that includes both client time and compensable travel time. The resulting pay complies with minimum wage requirements. If an employee works more than 40 hours in a week, he or she is paid time and a half using a rate of $10 an hour for overtime hours worked regardless of his or her actual average hourly rate or regular rate of pay. The U.S. DOL/WHD found that this compensation system does not comply with the Fair Labor Standards Act’s (FLSA) overtime requirement when the employee’s actual regular rate of pay exceeds $10 per hour.
Ogletree Deakins • November 25, 2018
In Opinion Letter FLSA 2018-25, issued on November 8, 2018, Bryan L. Jarrett, the acting administrator of the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD), addresses the requirement in 29 C.F.R. Section 541.604(b) that a “reasonable relationship” exist between an exempt employee’s guaranteed amount paid on a salary basis and the amount actually earned by the employee. The reasonable relationship requirement exists so that an employer may compute an exempt employee’s earnings on an hourly, daily, or shift basis without the employee losing his or her exempt status or the employer violating the salary basis requirement.
Ogletree Deakins • November 01, 2018
On August 27, 2018, the U.S. Department of Labor (DOL) announced that it would be conducting a series of listening sessions in various cities across the United States to solicit feedback on the overtime rule. The DOL, which plans to update the Fair Labor Standards Act’s Part 541 white collar exemption regulations, held sessions open to the public in Atlanta, GA; Seattle, WA; Kansas City, MO; Denver, CO; and Providence, RI throughout September. On Wednesday, October 17, 2018, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) conducted its last public listening session to solicit views and opinions on the Part 541 overtime or white-collar regulations. This session capped offed five others that had been held in September 2018.
Fisher Phillips • October 17, 2018
Right after the clock struck midnight this morning, the U.S. Department of Labor unveiled its new regulatory agenda for Fall 2018 and announced its intention to soon tackle two of the hottest topics in the labor and employment world: joint employment and overtime pay. But employers can be forgiven if they approach this announcement with some degree of skepticism, as the USDOL has missed previous target dates—at least when it comes to the long-delayed overtime rule. What does this latest development mean for employers, and when can you expect to see some tangible results?
Fisher Phillips • August 28, 2018
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.
Ogletree Deakins • August 27, 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).
As recent settlements by the US Department of Labor (DOL) show, just because employees are paid by the piece produced rather than by the hour, does not mean they are not entitled to overtime when they work more than 40 hours in a workweek.
XpertHR • November 21, 2017
Because they spent some of their time driving small vehicles weighing 10,000 pounds or less each workweek, delivery drivers for a Baltimore-based bakery chain were owed overtime under the Fair Labor Standards Act (FLSA), a federal appellate court has ruled.
Littler Mendelson, P.C. • October 01, 2017
September may mean saying goodbye to summer, but minimum wage and overtime developments across the country are still going strong. A nominee to lead federal wage and hour enforcement efforts has been put forward, labor agencies are beginning to announce their adjusted minimum wage rates for 2018, and state and local legislatures are looking to expand existing laws.
Fisher Phillips • August 17, 2017
How does one calculate overtime pay due to plaintiffs who were erroneously treated as "white collar" employees exempt from the federal Fair Labor Standards Act's minimum-wage and overtime requirements? Court decisions continue to demonstrate much confusion and misunderstanding on this score.
Littler Mendelson, P.C. • June 11, 2017
The same week the Department of Labor removed two guidance documents governing joint employment and independent contractors, it indicated it will soon reconsider two contentious rules that have been put on hold. The DOL is proposing to rescind the so-called "persuader" rule that would have expanded reporting requirements for employers that use labor-management consultants for certain purposes, and plans to seek public input on the salary thresholds set in the "white collar" overtime rule. Both of these rules were prevented from taking effect by court order.
Ogletree Deakins • May 21, 2017
On May 15, 2017, the Supreme Court of the United States rejected the City of San Gabriel, California’s attempt to overturn the Ninth Circuit Court of Appeal’s expansive interpretation of what employers must include as “wages” when establishing the regular rate of pay to calculate overtime under the Fair Labor Standards Act (FLSA). The Third, Sixth, and Tenth Circuits all previously narrowly construed Section 207(e)(2) of the FLSA, which allows employers to make certain exclusions from the “regular rate” of pay, thereby taking those amounts out of the calculation for overtime pay.
Fisher Phillips • February 08, 2017
Readers will recall that, in 2011, the U.S. Department of Labor undertook to discourage the use of fluctuating-workweek pay plans under the federal Fair Labor Standards Act.
Fisher Phillips • January 27, 2017
Many employers have responded to the U.S. Department of Labor's ongoing efforts to increase the pay-related requirements for the federal Fair Labor Standards Act's "white collar" exemptions by making tough decisions about employees' compensation going-forward.
Fisher Phillips • November 08, 2016
We have previously cautioned that (with one very limited exception) federal Fair Labor Standards Act regular-rate principles do not support paying a fixed salary that "includes" FLSA overtime premium for varying numbers of overtime hours worked up to some targeted worktime total. This is so even though an employer plans to pay more in FLSA overtime wages for overtime hours the employee works over such a threshold.
Jackson Lewis P.C. • October 21, 2016
With the Department of Labor’s recent changes to the salary threshold for white-collar exemptions set to take effect on December 1, 2016, many employers are struggling to find the best option for how to comply with the new regulations without breaking the bank. One lesser-known alternative that is receiving increased attention from many companies is the fluctuating workweek method of payment for non-exempt employees.
FordHarrison LLP • August 26, 2016
Executive Summary: The Department of Labor (DOL) has agreed to pay $7 million to resolve claims that it failed to pay overtime to thousands of its own employees. The settlement reached with the American Federation of Government Employees Local 12 (AFGE), which represents approximately 3,000 federal employees in the Washington metro area, brings closure to longstanding allegations claiming the DOL failed to properly compensate employees.
Employers that provide cash payments to employees who have health care coverage through a spouse or other means may find themselves thinking of the old adage that "no good deed goes unpunished" in the wake of a new appeals court ruling.
Fisher Phillips • July 12, 2016
A short time ago, in a location not too far away (Washington, D.C.), the U.S. Department of Labor issued a new interpretation in an effort to further crack down on the perceived problem of employee misclassification. This was yet another example of the government being out of step with the realities of the modern business world. So much so, in fact, that the DOL would probably apply its predictable and out-of-date rules beyond the modern business world to worlds beyond our galaxy. In fact, the agency would likely find that a popular Star Wars character is an employee and not an independent contractor.
Carothers DiSante & Freudenberger LLP • June 08, 2016
In a case of first impression, the Ninth Circuit held last week in Flores v. City of San Gabriel that an employer was liable to a class of employees for underpaid overtime compensation stemming from the employer’s failure to include cash-in-lieu of benefits payments in its calculation of the regular rate for overtime purposes. The City provided a Flexible Benefits Plan to its employees, whereby the City provided a designated monetary amount to employees each month for the employee to use to purchase and maintain medical, dental, and vision benefits. Employees were required to use a portion of the funds for dental and vision benefits, but could decline to use the remainder of the funds for medical insurance upon proof that the employee had alternate medical coverage (e.g. through a spouse). If an employee declined to use the funds to purchase medical benefits, the employee would receive the unused portion of the benefits allotment as a cash payment (of between $1,036 to $1,304 per month) added to his or her regular paycheck. For the four years relevant to the lawsuit, between 42%-46% of the City’s total plan contributions were paid to employees as cash for unused benefits. The City designated all of its plan payments as “benefits” that were excluded from its regular rate of pay calculations.
Ogletree Deakins • June 05, 2016
In order to qualify for one or more of the white collar exemptions to the overtime requirements under the Fair Labor Standards Act (FLSA), an employee must meet three tests: (1) the salary basis test (which asks how the employee is paid), (2) the salary level test (which establishes a minimum salary amount that employees must earn to be considered exempt), and (3) the primary duties test (which asks which kinds of job duties the employee performs). The new final regulations revising the minimum salary amount were published in the Federal Register on Monday, May 23, 2016. The new minimum salary level, which takes effect on December 1, 2016, is $913 a week or $47,476 annually. Under the regulations, an exempt executive, administrative, or professional employee must be paid at least the new minimum salary amount to meet the exemption test and the primary duties test.
Fisher Phillips • May 16, 2016
We have said for a while now that a "fluctuating workweek" pay plan might suit some employers' needs as to workers whom they will no longer treat as overtime-exempt in light of the U.S. Labor Department's coming federal Fair Labor Standards Act exemption changes.
Fisher Phillips • April 29, 2016
The U.S. Labor Department's commentary regarding its proposed federal Fair Labor Standards Act Section 13(a)(1) exemption regulations said that it might "permit" employers to "count" or "credit" against the impending higher salary threshold unspecified "nondiscretionary bonuses and incentive payments" on some limited, to-be-identified basis. We summarized USDOL's statements in our prior post, including the agency's having said that it was disinclined to extend this "credit" to "commissions".
Ogletree Deakins • April 28, 2016
In preparing for the soon-to-be published revisions to the federal overtime regulations under Part 541 of the Fair Labor Standards Act (FLSA), one of the significant challenges employers face is continuing uncertainty as to what the new minimum salary threshold will be for the executive, administrative, and professional exemptions. The most likely number is $972 per week, which annualizes to $50,544.
Hirsch Roberts Weinstein LLP • March 28, 2016
The U.S. Department of Labor’s Final Rule raising the salary threshold applicable to the so-called white collar exemptions under the Fair Labor Standards Act will likely take effect within the next few months. The Final Rule was submitted last week by the DOL to the White House Office of Management and Budget, a necessary first step before publication in the Federal Register. The new regulations are expected to expand by millions the number of employees eligible for overtime pay.
Carothers DiSante & Freudenberger LLP • March 24, 2016
Last year, the Department of Labor (“DOL”) published proposed regulations overhauling the federal white collar overtime exemptions. In its proposed regulations, the DOL proposed increasing the minimum salary to qualify for exempt status (under the white collar exemptions for administrative, executive, and professional employees) from $23,660 per year to approximately $50,440 per year, and increasing the minimum salary to qualify for the highly compensated employee exemption from $100,000 per year to approximately $122,148 per year.
Fisher Phillips • March 23, 2016
Congressional Republicans have responded to the U.S. Labor Department's impending revisions of its much-discussed Fair Labor Standards Act Section 13(a)(1) exemption definitions by introducing legislation to nullify the proposals and/or any "Final Rule". As we have reported, USDOL's proposed changes were recently submitted to the federal Office of Information and Regulatory Affairs for a final, pre-release review.
The Protecting Workplace Advancement and Opportunity Act was introduced yesterday in the House and Senate. The legislation, sponsored by Senator Lamar Alexander and Representative John Kline, aims to restrict proposed rules defining and delimiting the Fair Labor Standards Act's (FLSA's) overtime exemptions for executive, administrative, professional, outside sales and computer employees, and calls for the Secretary of Labor to conduct a full and complete economic analysis with improved economic data on the ramifications of the overtime rule.
Littler Mendelson, P.C. • March 18, 2016
Wage-related bills have been popular in Congress this week. While none of these measures are expected to be enacted during this election year, they provide clues to the battle that lies ahead for the Department of Labor's final overtime rule, and highlight the pay-related issues that might gain traction at the state and local levels.
Ogletree Deakins • March 18, 2016
In testimony before the House Education and Workforce Committee on Tuesday, March 16, 2016, U.S. Secretary of Labor Thomas E. Perez commented about several regulatory priorities and other U.S. Department of Labor (DOL) initiatives but did not provide any hint of what the proposed final Part 541 overtime regulations may contain. Despite comments about the impact of the DOL’s proposed significant salary increase and questions from several committee members, including Chairman John Kline (MN-2) and Congressman Tim Wahlberg (MI-7), who serves as Chair of the Workforce Protections Subcommittee, Secretary Perez noted that issuing a final rule is a top priority for the Department but that the ongoing rulemaking process prevented him from responding specifically. Submission by the DOL’s Wage and Hour Division of its proposed final revisions to the Fair Labor Standards Act’s (FLSA) Part 541 overtime regulations to the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget on Tuesday demonstrates just how high a priority the Department gives this initiative.
The US Department of Labor’s new Fair Labor Standards Act regulations, which are expected to double the minimum salary for overtime-exempt employees, are coming out any day now and will probably take effect 60 days after their publication.
Ogletree Deakins • March 16, 2016
The U.S. Department of Labor’s (DOL) Wage and Hour Division just delivered its proposed final revisions to the Fair Labor Standards Act’s (FLSA) Part 541 overtime regulations to the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget. OIRA review of this proposed final rule is required under Executive Order 12866 since the Department’s proposal is “economically significant” in that its annual impact on the economy would be $100 million or more. OIRA review generally takes 30 days, but that time can be extended.
Fisher Phillips • March 16, 2016
According to the federal Office of Information and Regulatory Affairs' website, the U.S. Labor Department has submitted for review the final revised regulatory definitions of the federal Fair Labor Standards Act's Section 13(a)(1) exemptions.
Jackson Lewis P.C. • March 15, 2016
Multiple sources have reported that yesterday the USDOL sent the proposed final overtime rule to the Office of Management and Budget (OMB) for its mandatory review. If OMB’s review is completed on an expedited basis, DOL could disseminate the proposed final rule to the public by mid-April, with an effective date potentially as early as the beginning of June, subject to delay from that date based on Congressional review under the Congressional Review Act.
The long-awaited Fair Labor Standards Act (FLSA) overtime regulations have cleared one more hurdle on their way to finally taking effect.
Ogletree Deakins • March 03, 2016
The First Circuit Court of Appeals recently affirmed a lower court’s decision that an employer may use the fluctuating workweek method to calculate overtime pay rates even when an employee’s weekly pay varies because of performance-based commissions. Lalli v. General Nutrition Centers, Inc., No. 15-1199 (February 12, 2016).
FordHarrison LLP • February 08, 2016
Executive Summary: In Lai Chan et al. v. Chinese-American Planning Council Home Attendant Program, Inc., decided February 3, 2016, the Southern District of New York (covering New York, Bronx, Westchester, Rockland, Putnam, Orange, Dutchess, and Sullivan counties) deferred to arbitration the unpaid wage and overtime claims of sleep-in workers covered by a union agreement, even though the agreement to arbitrate was signed after the lawsuit alleging these claims against the home care agency was commenced. An earlier decision in this same case from the New York County Supreme Court had denied the agency's motion to dismiss the complaint, and volunteered that under New York Labor Law, sleep-in workers must receive wages for 24 hours of work. This question will now be decided in arbitration, not in a court action.
Fisher Phillips • January 04, 2016
In July 2015, the U.S. Department of Labor (USDOL) published proposed regulations which would alter whether and how you classify your workers as exempt. Employers continue to sit on pins and needles awaiting finalization of these proposed new rules. Here is the what, why, and when of the anticipated regulations.
Ogletree Deakins • January 04, 2016
As we have previously reported, the U.S. Department of Labor’s (DOL) proposed amendments to the Fair Labor Standards Act (FLSA), specifically as to the criteria for the Part 541 “white collar” exemptions, are projected to have an enormous impact on retail and hospitality employers. If these amendments are made final without revision, they will result in: (1) a dramatic increase to the minimum salary required for most of the employees who qualify for white collar exemptions; (2) a substantial increase in the minimum compensation required for an employee to qualify for the Highly Compensated Employee exemption; and (3) annual adjustments to these minimums tied to changes in the Consumer Price Index.
Jackson Lewis P.C. • December 31, 2015
In the latest chapter in the ongoing saga regarding contract attorneys claiming to be overtime eligible, Judge Ronnie Abrams of the Southern District of New York ruled that a contract attorney reviewing documents for litigation firm Quinn Emanuel was “practicing law” and thus exempt from overtime pursuant to 29 C.F.R. § 541.304(a)(1). Henig v. Quinn Emanuel Urquhart & Sullivan, LLP, S.D.N.Y., No. 1:13-cv-01432, 12/30/15.
Jackson Lewis P.C. • December 14, 2015
Since the United States Department of Labor announced its intention, in response to the President’s directive, to more than double the salary basis necessary to qualify for the “white collar” exemptions from overtime, the business community has swung into action. Employers and associations have both been lobbying for a more modest increase to the minimum required salary and simultaneously preparing to comply with the new rule should it take effect in its current proposed form. One key element of that compliance is of course budgeting for exactly when the new rule will be promulgated in final form and then effective.
Fisher Phillips • December 11, 2015
The period for public comment on the U.S. Labor Department's proposed revisions in the regulations defining the federal Fair Labor Standards Act's Section 13(a)(1) exemptions ended on September 4. Nevertheless, efforts are being made to forestall the release of the proposed changes, or at least to influence the final form of the revised regulations.
Littler Mendelson, P.C. • November 23, 2015
On Friday, federal agencies released their Fall 2015 Regulatory Plans and Unified Agendas. These semiannual reports detail all agency rulemaking efforts at their various stages of development and implementation. The regulatory plan, published along with the fall edition of the agenda, identifies agency priorities and provides information about the significant rulemaking actions the agencies expect to take in the year ahead.
Jones Walker • November 19, 2015
You may be thinking we're the lawyers who cried wolf since we warned you not once, not twice, but three times that there were imminent changes coming to the requirements meet certain exemptions from minimum wage and overtime under the Fair Labor Standards Act ("FLSA"). We're not – those changes are still coming. But, now that the period during which the public could comment on the proposed rule has closed and the Department of Labor ("DOL") is faced with 270,000 comments, it now looks like the revisions won't go into effect until late 2016 (or possibly even 2017), and we're still uncertain about what those changes will actually look like.
Fisher Phillips • November 16, 2015
Since our recent post on this topic, U.S. Solicitor of Labor M. Patricia Smith has appeared at the annual conference of the American Bar Association's Labor & Employment Law Section. Some of her remarks indicate that the U.S. Labor Department's final, revised regulations defining the Fair Labor Standards Act's Section 13(a)(1) exemptions might be forthcoming much later than many had thought.
FordHarrison LLP • November 06, 2015
Executive Summary: On November 2, 2015, the NYS Department of Health ("DOH") issued important notices affecting the wage and overtime obligations of New York City and Nassau, Suffolk, and Westchester County home care agencies. In addition to setting Total Compensation under the Wage Parity Act for March 1, 2016 – February 28, 2017, the DOH reversed its existing position that overtime pay does not reduce the additional and supplemental wage package due on each episode of care hour worked under the Wage Parity Act. This reversal of position has major ramifications for the home care industry in downstate New York.
Ogletree Deakins • November 05, 2015
The United States District Court for the Northern District of Oklahoma in Sharp v. CGG Land (U.S.) Inc., No. 14-cv-0614 (October 19, 2015), recently ruled in favor of an employer that had excluded per diem payments from a regular rate calculation under the Fair Labor Standards Act (FLSA). The plaintiffs filed suit alleging that per diem payments for meal expenses provided to the plaintiff class were not properly included in their regular rate of pay.
Jackson Lewis P.C. • October 29, 2015
Fixed payments made on other than an hourly basis to non-exempt (i.e., overtime eligible) workers often must be included in the regular rate of pay for purposes of calculating overtime. One type of payment that may be excluded from the regular rate calculation is payment for “reasonable payments for travel expenses, or other expenses, incurred by an employee in the furtherance of his employer’s interests and properly reimbursable by the employer,” a provision interpreted by Judge Claire V. Eagen of the Northern District of Oklahoma in a new decision. Sharp v. CGG Land (U.S.) Inc., 2015 U.S. Dist. LEXIS 141658 (N.D. Okla. Oct. 19, 2015).
Littler Mendelson, P.C. • October 12, 2015
On July 6, 2015, the Department of Labor (“DOL”) proposed a revision to the “white collar” overtime exemption rule. As explained by Littler when it testified before the House Subcommittee, “the proposed white collar exemptions are unprecedented in the [Federal Labor Standards Act’s] 77-year history.” Even after this week's hearing, it is unclear whether the rule will be implemented in its current version or whether additional changes will be made. The proposed rule has been published for more than 60 days and therefore DOL has authority to move forward to implement the rule. If implemented in 2016, the minimum salary for overtime exemption would jump from $23,660 a year to $50,440.
Littler Mendelson, P.C. • October 08, 2015
The Department of Labor's controversial proposed changes to the "white collar" overtime exemption regulations came under fire during a House Subcommittee on Investigations, Oversight and Regulations hearing on October 8, 2015. Among other changes, the proposal released on July 6 of this year sets the minimum salary required for overtime exemption at the 40th percentile of weekly earnings for full-time salaried workers, which by the year 2016 is predicted to be $50,440. The proposal also provides for automatic increases to the minimum salary level. While the proposal did not explicitly include amendments to the duties test, the DOL requested input on whether and to what extent changes are warranted.
XpertHR • September 29, 2015
The services and construction company Halliburton has agreed to pay $18 million in overtime wages to about 1,000 employees after it misclassified them as exempt from the Fair Labor Standards Act (FLSA).
XpertHR • September 08, 2015
Most HR professionals know that federal law requires employers to pay nonexempt employees one and a half times their regular rate of pay for each hour over 40 in a workweek. But it’s all too easy to forget that many states have their own overtime laws, some of which go above and beyond the standard 40-hour threshold.
Fisher Phillips • September 02, 2015
There will be no extension of the original 60-day period for commenting on the U.S. Labor Department's proposals and requests relating to the federal Fair Labor Standards Act's Section 13(a)(1) exemptions. U.S. Wage and Hour Administrator David Weil has so notified members of the House of Representatives and the Senate (see below for a link to a copy of Dr. Weil's letter to the House Committee on Education and the Workforce).
Jackson Lewis P.C. • September 02, 2015
n a letter to Congress, Wage-and-Hour Administrator David Weil yesterday stated that the Department would not extend the 60-day comment period for providing feedback regarding the Department’s proposed rule, indicating that “a comment period of this length . . . will meet the goal . . . of ensuring Department has level of insight from the public needed.”
XpertHR • August 18, 2015
Employees of seasonal and recreational establishments that operate no more than seven months per year or take in most of their revenue during only half of the year - such as certain ski resorts, summer camps, swimming pools and amusement parks - are exempt from the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA).
Ogletree Deakins • July 15, 2015
As we reported last week in “A Call to Action: The Comment Period on the new Proposed Overtime Regulations Begins,” employers have a limited window of opportunity to submit comments in response to the proposed revisions to the white collar overtime regulations that the U.S. Department of Labor (DOL) released on June 30 and that were published in the Federal Register on July 6. One of the topics on which the DOL is expressly seeking comments is whether employers should be allowed to use nondiscretionary bonuses to satisfy some portion of the minimum salary requirements for the executive, administrative, and professional (EAP) exemptions to the overtime requirements contained in the federal Fair Labor Standards Act (FLSA). This topic is of particular importance to the retail and restaurant industries.
Goldberg Segalla LLP • March 10, 2015
You’ve heard it before, here and likely elsewhere, of the risks of FLSA overtime lawsuits. Yet, these suits continue to make headlines. Simply put, qualified employers must pay employees at least 1.5 times their regular wage for every hour worked in excess of 40 hours per week.
Ogletree Deakins • February 02, 2015
The Fair Labor Standards Act (FLSA) requires employers to pay to non-exempt employees at least one and one-half times the employees’ regular hourly wage for every hour worked in excess of 40 in a week. Courts regularly have held that the goal of the FLSA is to counteract the inequality of bargaining power between employees and employers.
Fisher Phillips • December 24, 2014
We have reported that the U.S. Labor Department's changes in its regulatory provisions affecting the federal Fair Labor Standard Act's Section 13(a)(15) "companionship" exemption and the FLSA's Section 13(b)(21) overtime exemption for "live-in domestics" are set to become effective on January 1, 2015. Perhaps the single most-significant aspect of the revisions set forth in the USDOL's "Final Rule" is the elimination of the exemptions as they relate to third-party employers, such as home-care agencies.
Fisher Phillips • December 19, 2014
Section 111 of the recently-enacted "Department of Labor Appropriations Act, 2015" directs that the federal Fair Labor Standards Act "shall be applied as if" there is an overtime exclusion (link to reproduction below) for certain workers who are employed to adjust or evaluate claims resulting from or relating to a major disaster. A major disaster is defined as being "any disaster or catastrophe declared or designated by any State or Federal agency or department."
Fisher Phillips • November 24, 2014
Overtime compensation under the federal Fair Labor Standards Act must be based upon an employee's "regular rate" of pay. More and more frequently nowadays, claimants allege that their FLSA overtime compensation should have been (or should be) based upon some rate that would generate more compensation than they really received.
Fisher Phillips • October 31, 2014
"Fluctuating workweek" pay plans are provoking much litigation under the federal Fair Labor Standards Act. These arrangements call for a non-exempt employee to be paid a salary as straight-time compensation for all hours worked in a workweek, including those over 40. The salary represents the "one" of "one and one-half, so for overtime hours the employee is due an additional one-half of the hourly rate figured by dividing all of the workweek's worktime into the salary (that rate can never be less than the minimum wage, of course).
Jones Walker • June 04, 2014
In March, we reported that President Obama was expected to order the U.S. Department of Labor ("DOL") to revise major exemptions from overtime under the Fair Labor Standards Act ("FLSA") with the goal of increasing the number of employees eligible for overtime—and thereby increasing the regulatory burdens on and costs to American businesses.
Brody and Associates, LLC • May 06, 2014
Do you really know how to calculate overtime pay? For most employers, the overtime calculation is very straightforward – employees receive one-and-a-half times their regular rate of pay for all hours worked over 40. But what if your employees work various jobs at different rates? For example, you own a hair salon and your employees perform a variety of duties at the following rates: cut/style hair at $20 per hour, wash hair at $15 per hour, and schedule appointments at $10 per hour. When your employees work over 40 hours in a week, how do you calculate their overtime rate?
Ogletree Deakins • March 17, 2014
On March 13, 2014, President Obama signed a presidential memorandum which instructs the Secretary of Labor to update regulations regarding overtime protections. According to White House officials, and supported by a fact sheet issued on that same date, the President’s memorandum will change the overtime laws so that a number of new workers would be entitled to overtime compensation.
Ogletree Deakins • March 14, 2014
Today, President Obama signed a presidential memorandum instructing the Secretary of Labor to update regulations regarding overtime protections. According to White House officials, and a fact sheet that the White House released this morning, the president’s memorandum will change the overtime laws so that a number of new workers would be entitled to overtime compensation.
Jones Walker • March 13, 2014
This week, President Obama is expected to order the U.S. Department of Labor ("DOL") to revise major exemptions from overtime under the Fair Labor Standards Act ("FLSA"). These changes would make certain white collar exemptions more narrow, thereby increasing the number of employees eligible for overtime. President Obama's upcoming directive is expected to include at least two major revisions to the DOL's regulations, which could significantly increase regulatory burdens on and costs to American businesses.
Ogletree Deakins • November 14, 2013
In the course of two months, two separate Fifth Circuit panels have issued decisions that call into question the application of the fluctuating workweek (FWW) method in suits for unpaid overtime based on misclassification.
Goldberg Segalla LLP • November 04, 2013
Lady Gaga is back in the news, but this time it has nothing to do with her music; just days before trial, the singer — real name Stefani Germanotta — settled a 2011 lawsuit filed by a former personal assistant. It is a case that reminds employers of all sizes that unless their administrative assistants meet all of the requirements of the administrative exemption test, they must be paid overtime under the Fair Labor Standards Act.
Ogletree Deakins • September 10, 2013
In an appeal concerning the correct calculation of overtime damages due to employees misclassified as exempt, the Fifth Circuit Court of Appeals emphatically slammed the door on a trial court’s attempt to require an employer to pay time-and-one-half for all overtime hours worked. Instead, the Fifth Circuit held that the correct measure of damages is based on the same calculation used for a fluctuating work week.
Fisher Phillips • August 23, 2013
Last month's "Fuzzy Thinking" post mentioned Sisson v. RadioShack Corp., in which a lower federal court in Ohio deferred to the U.S. Labor Department's 2011 allegation that paying performance bonuses is purportedly "incompatible" with a fluctuating-workweek compensation plan under the federal Fair Labor Standards Act. Finding that the issue is a novel one, the court has now granted RadioShack's request to put the case on hold and to allow an immediate review by the Sixth Circuit U.S. Court of Appeals (copy of ruling linked below).
Fisher Phillips • July 08, 2013
In 2011, the U.S. Labor Department did its best to discourage the use of fluctuating-workweek pay plans under the federal Fair Labor Standards Act. It undertook this in a grab-bag release collectively titled "Final Rule", which also dealt with numerous FLSA matters unrelated to fluctuating-workweek plans. In accompanying remarks in the preamble to this document, USDOL said that these plans are supposedly "incompatible" with the payment of bonuses or comparable sums.
Fisher Phillips • June 20, 2013
Our Quick Quiz Answer discussing day-rate plans led one reader to observe that the federal Fair Labor Standards Act does not always bar employers from paying non-exempt employees a fixed sum that "builds in" some FLSA overtime compensation. While this is true, the permitted arrangement is strictly limited, and it does not allow a day-rate approach.
Fisher Phillips • April 17, 2013
On April 16, 2013 the U.S. Supreme Court upheld the concept that a wage and hour collective action brought pursuant to the Fair Labor Standards Act (FLSA), can be dismissed for lack of subject matter jurisdiction when the named plaintiff’s claim is rendered moot – in this case by virtue of the plaintiff being offered complete relief through an offer of judgment made pursuant to Rule 68 of the Federal Rules of Civil Procedure. Genesis HealthCare Corp. v. Symczyk.
Brody and Associates, LLC • January 08, 2013
Overtime can be expensive, but the Court of Appeals for the Eighth Circuit has approved one method of reducing costs.
Fisher Phillips • January 02, 2013
Recent reports have described more than one scenario in which an employer violated the federal Fair Labor Standards Act because the employer failed to recognize that non-exempt employees' hours worked over 40 were overtime ones. The employees had performed their work in more than one position during the week, such that their time spent in any particular job did not exceed 40 hours. However, an employee's hours worked in all of the positions in which he or she was engaged for the employer in the week totaled more than 40.
Fisher Phillips • December 19, 2012
It might sometimes seem from the parade of headline-grabbing, employee-favoring court decisions that employers are destined to lose in so-called "off-the-clock" cases under the federal Fair Labor Standards Act. These lawsuits involve claims by non-exempt employees that the employer has failed to pay the FLSA-required wages for work that went unrecorded. But a ruling by the Tenth Circuit U.S. Court of Appeals (with jurisdiction over Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming) in Brown v. ScriptPro shows that, with the right policies, systems, and practices in place, it is possible for an employer to prevail.
Fisher Phillips • October 23, 2012
The U.S. Court of Appeals for the Eighth Circuit (with jurisdiction over Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) has re-affirmed that the federal Fair Labor Standards Act permits an employer to change its employees' seven-day workweek, even when one of the stated reasons for the change is to reduce FLSA overtime costs.
Ogletree Deakins • October 17, 2012
The 8th U.S. Circuit Court of Appeal has determined that an employer’s permanent modification of employees’ “workweeks” in a way that reduced the number of overtime hours did not violate the Fair Labor Standards Act (FLSA). Abshire v. Redland Energy Services, IIC, 8th Cir., No. 11-3380, October 10, 2012.
Fisher Phillips • October 16, 2012
The best answer to our October 8 Quick Quiz is, "Either Of The Above". There are two permissible ways to approach Sarah's overtime compensation under the federal Fair Labor Standards Act. In declining percentage order, the responses were:
Fisher Phillips • October 09, 2012
Sarah is paid $15 an hour for work as a delivery driver, and $12 an hour for inventory-checking work in the warehouse. In a particular workweek, she works her first 40 hours as a driver, performs five more hours of driver work, and does five additional hours of inventory work, for a total of 50 hours.
Fisher Phillips • August 23, 2011
The U.S. Labor Department's unfounded April fluctuating-workweek commentary (earlier post here) continues to complicate many pre-existing pay plans and to cause employers to narrow their views of the available compensation alternatives. This is the foreseeable (and apparently intended) result of what DOL said. Unfortunately, some observers are compounding the impact of DOL's commentary by suggesting that its ramifications are more dire than ought to be the case.
Fisher Phillips • August 02, 2011
Your handbook says, "No unauthorized overtime permitted." Your managers tell employees that they must get their job duties completed during regular work hours because there is a company-wide prohibition against working overtime. Your managers also tell employees to accurately record their hours worked. All good stuff, right? Could be.
Fisher Phillips • June 16, 2011
Many compensation policies and similar documents refer to wages for non-exempt employees in the context of a "week", a "pay week", a "pay period", "the schedule", an "overtime week", or some other ambiguous word or phrase. But the timeframe that matters under the federal Fair Labor Standards Act is a term-of-art: A "workweek". For instance, with few exceptions, FLSA overtime pay is due for a non-exempt employee's hours worked over 40 in a single workweek, which is not necessarily the same thing as the calendar week or an employee's scheduled week or pay period.
Fisher Phillips • April 11, 2011
The U.S. Labor Department's April 5 Final Rule attempts to transform the principles of fluctuating-workweek pay plans in two ways. Remarkably, DOL apparently plans to do so, not by facing up to these matters by actually proposing a straightforward revision of the relevant interpretative provision at 29 C.F.R. Â§ 778.114, but instead via remarks in the preamble accompanying the Final Rule.
Fisher Phillips • June 14, 2010
The blogosphere is providing mixed signals about how to figure commission overtime under the federal Fair Labor Standards Act. There is particular discussion on this point where Mortgage Loan Officers are concerned, now that the U.S. Labor Department opined in March that the "typical" one is non-exempt. However, the FLSA overtime principles are the same for any commissioned employee who is subject to that law's overtime requirements.