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Total Articles: 24

DOL Opinion Letter Applies the Highly Compensated Employee Exemption to Paralegals

Ultimately, the WHD concluded that the paralegals described in the July 2019 opinion letter qualified as exempt under the highly compensated employee exemption even if they did not exercise discretion and independent judgment with respect to matters of significance.

Fifth Circuit Weighs in on Motor Carrier Act Overtime Exemption and Small Vehicle Exception

It is commonly understood that employees bear the burden of proving that they are covered by the Fair Labor Standards Act (FLSA), and, to avoid minimum wage or overtime obligations, the employer bears the burden of proving that an exemption to the FLSA applies. One such exemption – common in the transport and energy industries – is the exemption under the federal Motor Carrier Act (MCA). If an employer can demonstrate that workers are covered by the MCA exemption,1 then the FLSA’s overtime requirements will not apply to those workers—with one major caveat.

Toll Road Ahead: Fourth Circuit Rules Mixed-Fleet Interstate Truck Drivers May Be Entitled to Overtime Pay

Despite the overtime exemption provided by the Motor Carrier Act, interstate trucking employers who operate “mixed fleets” – those with vehicles both over and under 10,000 pounds – may owe overtime pay to drivers of the smaller vehicles, the Fourth Circuit Court of Appeals recently ruled. Schilling v. Schmidt Baking Co., 2017 U.S. App. LEXIS 23257 (4th Cir. Nov. 17, 2017). The Fourth Circuit has jurisdiction over Maryland, North Carolina, South Carolina, Virginia and West Virginia.

Travel Agencies Hail Proposed Legislation Providing Overtime Exemption, But Employment Bills in General Face Uphill Battle

Last week Rep. Francis Rooney (R-FL) introduced a bill that would remove travel agents from the Department of Labor's list of workers that cannot qualify for the Fair Labor Standards Act's (FLSA) overtime exemption for retail workers. Under the exemption at issue, an employee must work at an establishment “recognized as retail." In 1970, the DOL created a list of industries—including travel agents—that were expressly excluded from using this retail service establishment exemption. The Travel Agent Retail Fairness Act (H.R. 2515) would strike travel agencies from this regulatory list.

ESL Teachers At Private Learning Center FLSA “Teachers” Exempt from Overtime

Earlier this week, in a matter of first impression within the Second Circuit, Judge P. Kevin Castel of the Southern District of New York held that employees who teach English as a second language (“ESL”) at a privately-owned ESL learning center qualify for the professional exemption under the FLSA as “teachers.” Fernandez v. Zoni Language Ctrs., 2016 U.S. Dist. LEXIS 65310 (S.D.N.Y. 2016).

Federal Court Finds Intrastate Travel Part of “Stream of Commerce,” Applies Motor Carrier Exemption to Truck Driver

Although applicability of the Motor Carrier Act (MCA) exemption from overtime is predicated on “interstate commerce,” interstate commerce can include wholly intrastate travel by a covered employee when shipped in a “practical continuity of movement” across state lines. A new opinion highlights this doctrine. Kennedy v. Equity Transp. Co., 2015 U.S. Dist. LEXIS 143565 (N.D.N.Y Oct. 22, 2015).

Third Circuit Upholds the Motor Carrier Exemption for Drivers Who Did Not, But Reasonably Could Have Been Expected to, Cross State Lines

Are drivers of a motor carrier who rarely or never drive the carrier's interstate routes covered by the motor carrier exemption of the Fair Labor Standards Act? Yes, according to the U.S. Court of Appeals for the Third Circuit in Resch v. Krapf's Coaches, Inc., Case No. 14-3679 (3d Cir. May 12, 2015).

Oil Field Employers Post-McMaster: Still Searching for Clarity on the TCA’s Impact on the Motor Carrier Act Exemption

In McMaster v. Eastern Armored Services, Inc., No. 14-1010 (March 11, 2015), the Third Circuit Court of Appeals issued one of the first federal appellate court opinions discussing the SAFETEA-LU Technical Corrections Act of 2008 (TCA). The TCA is an uncodified amendment to the Fair Labor Standards Act of 1938 (FLSA) that, according to the Third Circuit, creates a “carveout” from the Motor Carrier Act Exemption (MCAE). Under the MCAE, professional motor carriers are generally exempt from the overtime requirements of the FLSA. The Third Circuit explained that the TCA “waives the exemption for motor carrier employees who, in whole or in part, drive vehicles weighing less than 10,000 pounds.”

Tech Support - The FLSA's Specialized Exemption

The Fair Labor Standards Act (FLSA) provides several exemptions from overtime requirements for employees whose job duties meet specific tests. Most employers are familiar with the standard “white- collar” exemptions – including the “executive” and “administrative” exemptions – and the job duties and “salary basis” tests required to satisfy those exemptions.

eLABORate: Fifth Circuit Broadens Ability of Employers to Satisfy Motor Carrier Act Exemption

In a recent decision, the Fifth Circuit Court of Appeals, in Allen v. Coil Tubing, held that a court should look at whether the duties of a class of employees’—rather than the duties of individual or some sub-set of employees’—substantially affect the safety of interstate transportation, and affirmed a district court’s ruling that employees of an oil well service company were exempt from the overtime provisions of the Fair Labor Standards Act (“FLSA”) under the Motor Carrier Act (“MCA”).

Major Changes To Home Companionship Exemption Announced

On September 17, the U.S. Labor Department (DOL) announced that is will be issuing a final rule that will bring significant changes to the “companionship” exemption in the federal Fair Labor Standards Act’s Section 13(a)(15). The final rule is scheduled to be published in the Federal Register in October and will become effective January 2015. Although the Final Rule is not yet available, the DOL issued a press release and “fact sheets” purporting to summarize the changes.

Seventh Circuit Exempts Interstate School Bus Drivers From FLSA Overtime Requirements

Last month, in Almy v. Kickert School Bus Line, Inc., No. 13-1273 (July 16, 2013), the Seventh Circuit Court of Appeals joined the Second, Third, Ninth, and Eleventh Circuits,in finding that school bus drivers who transport students across state lines fall within the “motor-carrier exemption” to the Fair Labor Standards Act (FLSA), and are thus ineligible for overtime pay.

Eighth Circuit Holds Gross Vehicle Weight Rating Determines FLSA Motor Carrier Exemption

The Eighth Circuit Court of Appeals recently held that an employee who drives a motor vehicle that has a gross vehicle weight rating (GVWR) of more than 10,000 pounds falls within the “motor carrier exemption” of the Fair Labor Standards Act (FLSA). According to the Eighth Circuit, which issued the decision in McCall v. Disabled American Veterans, et al. on July 31, 2013, an employee falls within the exemption regardless of the actual weight of the vehicle when he or she is driving it.

D.C. Circuit to DOL: You Can't Just Change Your Mind About Mortgage Loan Originators

Last week, a unanimous panel of the D.C. Circuit Court of Appeals vacated a 2010 Department of Labor Administrator Interpretation (AI) in which the DOL had stated that mortgage loan originators are non-exempt, but instead must be paid minimum wage and overtime under the Fair Labor Standards Act. Mortgage Bankers Association v. Harris, No. 12-5246 (D.C. Cir. July 2, 2013). In 2010, the Department of Labor announced that in lieu of its historic practice of issuing opinion letters in response to specific factual scenarios presented by petitioners, it would issue more generalized guidance in the form of Administrator Interpretations (AIs) when it found it necessary to provide further clarity regarding the proper interpretation of a statutory or regulatory issue. The first AI rescinded a 2006 opinion letter which had stated that mortgage loan officers as described in that letter qualified for the FLSA's administrative exemption, and employers were not required to pay them overtime. The 2010 AI reversed DOL's position, stating that mortgage loan officers performing "typical" duties did not meet the administrative exemption, and so were owed overtime compensation. Plaintiffs' lawyers rejoiced.

Sixth Circuit Reopens Debate on Exempt Status of Mortgage Loan Officers Under FLSA

In 2010, the Department of Labor sought to settle the question of whether a mortgage loan officer constitutes an administrative employee exempt from the Fair Labor Standards Act's minimum wage and overtime requirements. In its novel Administrator's Interpretation, the Department opined that a "typical" mortgage loan officer would not satisfy the exemption, because he or she would be primarily engaged in sales. In the wake of the Administrator's Interpretation, many companies reclassified their mortgage loan officers as non-exempt, and litigation has been rampant. An October 2012 decision from the Sixth Circuit, however, affirming a jury verdict in favor of Quicken Loans that its mortgage bankers were properly classified as exempt administrative employees, throws the debate open again, and calls into question the continuing impact of the DOL's Interpretation.

Proponents "Can't Wait" For Demise of Companionship, Live-In Domestic Exemptions

The U.S. Labor Department has extended the time for commenting upon the proposed provisions that would essentially spell the end of the federal Fair Labor Standards Act exemptions for companions and live-in domestic-service workers. The new deadline is March 12, 2012.

Bill Would Broaden FLSA Computer Exemption

A bill introduced in the U.S. Senate (S. 1747) would significantly expand the scope of the current exemption for certain computer employees that is found at Section 13(a)(17) of the federal Fair Labor Standards Act. The proposed "Computer Professional Update" Act (or "CPU" Act) was submitted by North Carolina Senator Kay Hagan and three co-sponsors. It is now pending in the Senate's Committee on Health, Education, Labor, and Pensions.

Are Pharmaceutical Sales Reps Exempt As "Outside Salesmen?" Diagnosis Unclear

Just last August, the U.S. Court of Appeals for the 2nd Circuit issued a ruling that sent shock waves through segments of the healthcare industry. Then, as affected employers began responding to that decision, the 9th Circuit reached an apparently contradictory decision that may have raised more questions than it answered.

The FLSA Overtime Exemption For Service Writers

Last week, the U.S. Department of Labor published a Final Rule concerning changes to its regulations and interpretations. One portion of the Final Rule's commentary appears to say that the DOL is now taking the position that employees doing the typical work of service writers/service advisors/service salespeople (we'll refer to them all as "service writers") are NOT exempt from overtime under the federal Fair Labor Standards Act.

USWHD Memo Addresses FLSA "Motor Carrier" Exemption.

The federal Fair Labor Standards Act's Section 13(b)(1) provides an overtime exemption for "any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to" a specific section in Title 49 of the U.S. Code dealing with federal motor-carrier law. Employers who have relied upon or followed this so-called "motor-carrier" exemption will remember that an inconspicuous 2005 amendment to Title 49 substantially narrowed its scope. A further revision in 2008 introduced yet other questions and uncertainties.

Second Circuit Strips Pharmaceutical Sales Reps Of Their Exempt Status.

A federal appellate court recently held that pharmaceutical sales representatives did not fall under either the "outside sales" or "administrative" exemptions to the Fair Labor Standards Act (FLSA), and that, accordingly, they had been misclassified and are entitled to unpaid overtime. The overtime to which the workers could be entitled is significant, because they typically work 12-hour days, travel for their jobs, and attend after-hours events as part of their marketing efforts. In re Novartis Wage and Hour Litigation, 09-0437-cv, Second Circuit Court of Appeals (July 6, 2010

Congress Amends Motor Carrier Exemption: Both Helps and Hurts Employers.

Recent legislation appears to have narrowed the scope of the federal Fair Labor Standards Act's "motor carrier" overtime exemption yet again. The "SAFETEA-LU Technical Corrections Act of 2008" (TCA) further restricts the classes of employees who might qualify for that exemption. A moderate positive is that TCA also limits liability with respect to certain overtime violations occurring before August 10, 2006 that resulted from exemption changes caused by the earlier "Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users" (SAFETEA-LU).

Misclassifying A Chef Can Cook Up Trouble.

The number of wage-hour claims has skyrocketed in recent years. As a result, a hospitality employers are more likely than ever before to be the target of a wage-hour lawsuit or a government compliance audit. One thing this means is that industry employers should be sure they have correctly classified everyone they treat as being exempt from the federal Fair Labor Standards Act’s minimum-wage, overtime, and timekeeping requirements.

Update: DOL To Begin Enforcing Narrowed Motor-Carrier Exemption.

We previously reported that under-the-radar Congressional action in 2005 substantially limited the federal Fair Labor Standards Act's Section 13(b)(1) "motor carrier" overtime exemption. This exemption applies to drivers, driver's helpers, loaders, and mechanics for whom the U.S. Transportation Secretary can set qualifications and maximum service hours.
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