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Fourth Circuit Decision Establishes New Six-Factor Test for Determining Joint Employment under the FLSA

On January 25, 2017, the U.S. Court of Appeals for the Fourth Circuit established a new six-factor test to determine whether two or more entities are joint employers for purposes of the Fair Labor Standards Act (“FLSA”). Salinas v. Commercial Interiors Inc., No. 15-1915, ___ F.3d ___, 2017 WL 360542 (4th Cir. Jan. 25. 2017). The resulting standard is unique from other circuits and appears to expand joint employer liability under the FLSA.

Overtime Appeal Faces Further Delay

So what’s the future of the overtime regulations that were supposed to become effective last December, but then got blocked by a federal judge just before Thanksgiving? It appears that we are going to have to wait a while longer to get any sort of a definitive answer.

Scaling The Wall Of Conflicting "Tip Credit" Provisions

We've all struggled with what to do when we're given conflicting orders. Grandma says "have some pudding," and Pink Floyd's Roger Waters responds, "how can you have any pudding if you don't eat your meat?!" Employers are increasingly facing similar (though perhaps less-existential) wage-related conflicts.

Paying Bonuses to Non-Exempt Employees: Avoiding Class-Wide Overtime Violations

Employers generally recognize that their non-exempt employees must receive overtime premiums on their base pay – in most cases, their hourly wage – when they work overtime. However, not all employers are as well attuned to the requirement that overtime premiums may also be required on other, “supplemental” components of compensation to nonexempt employees. Bonuses are a common example.

Meal and Rest Breaks – What are the Rules?

While the federal Fair Labor Standards Act (FLSA) generally does not require employers to provide meal or rest breaks to employees over the age of 18, state laws may differ significantly from federal law. Under the FLSA, if an employer provides employees with short rest breaks (usually 20 minutes or less), it must pay employees for this time. However, federal law does not require employers to pay employees for meal breaks of 30 minutes or longer, as long as the employee is completely relieved of all work duties.

USDOL Should Retract Fluctuating-Workweek Commentary

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.

WPI Wage Watch: Minimum Wage & Overtime Updates (January Edition)

Since we published our annual article discussing minimum wage rates in 2017,1 many state and local jurisdictions have adjusted their minimum wage rates, state legislative sessions have begun, signatures have been collected for ballot measures, and officials have hinted at policies they intend to pursue. One particularly interesting development we have seen is the emergence of several anti-preemption bills, or bills designed to upend the trend in recent years of state laws preempting the development of local minimum wage rates that would exceed the state or federal minimum wage rates.

Fourth Circuit Pronounces Joint Employer Test Under FLSA

On Jan. 25, 2017, the Fourth Circuit Court of Appeals, which has jurisdiction over North and South Carolina, issued an opinion in a collective action wage and hour case setting forth a six-factor test for determining whether two persons or entities constitute joint employers under the Fair Labor Standards Act (FLSA). Salinas v. Commercial Interiors Inc., Opinion No. 15-1915. On the same day, the court also issued another opinion in two consolidated wage and hour cases under the FLSA, applying the six-factor test and reversing the district court’s dismissal of the cases. Hall v. DirectTV, LLC, Opinion Nos. 15-1857 and 15-1858. These opinions resolve some uncertainty regarding joint employment determinations under the FLSA that had been created by the varying tests used by district courts within the Fourth Circuit and set forth a broader, more expansive approach to joint employment determinations under the FLSA than under Title VII. A discussion of the Fourth Circuit’s joint employment test under Title VII can be found here.

Form W-2 Scams Targeting HR and Payroll Resurface, IRS Warns

The IRS has issued a warning to HR and payroll professionals about an email scam that falsely uses the name of an actual corporate officer within their own organization to request employees' Forms W-2 containing their personal identifying information, including names, Social Security numbers (SSNs) and income information.

Fifth Circuit Grants Government Request for Additional Time to State Position on Overtime Rule

Before the election the Department of Labor asked the Fifth Circuit Court of Appeals to expedite its appeal regarding the validity of the DOL’s Final Rule, which increased the salary level for the white collar exemptions. Earlier this week, however, following the inauguration of President Trump, the Department of Labor made the opposite request, asking the Court to slow down the process. The DOL asked the Court for additional time to submit its reply brief, currently due January 31, 2017, “to allow incoming leadership personnel adequate time to consider the issues.” The Fifth Circuit Court of Appeals granted that request on January 26, 2017, extending the due date for the reply brief to March 2, 2017.