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Is Your Volunteer Really an Employee? The Answer Might Surprise You [Part 1]

Over the past year or so, we have discussed the Fair Labor Standards Act’s application to both paid interns and unpaid interns, as well as independent contractors. One area we have covered briefly in the past, but not explored in depth, is the issue of volunteers. If you have been reading along, you know by now that if an individual is an employee (as opposed to a properly classified unpaid intern or independent contractor, for example), he or she cannot waive the protections of the FLSA. In other words, unless the employee is subject to an exemption, an employer must pay the employee at least the minimum wage for all hours worked, plus an overtime premium for all hours worked over forty in a week. State laws, too, provide similar requirements. But what about volunteers? Many nonprofit organizations, public agencies, schools, churches, and other similar entities would cease to exist, or at least be severely crippled, if not for the contributions and involvement of volunteers. Can an individual volunteer their services? The answer might surprise you.

White Collar Exemption Changes May Increase Labor Costs

Very soon, game-changing rules regarding who qualifies for the so-called white collar exemptions from the overtime pay requirements of the Fair Labor Standards Act will be issued for public review and comment by the U.S. Department of Labor’s Wage & Hour Division. Once finalized, these changes will affect virtually every employer in the U.S.

The Department of Labor Appeals Federal Court's Orders Vacating Both Major Provisions of the Home Care Rule

On Thursday, January 22, 2015, the U.S. Department of Labor (DOL) appealed the U.S. District Court for the District of Columbia's two orders that vacated both major provisions of the DOL's Home Care Rule. Originally intended to be effective on January 1, 2015, the new rule would have excluded third-party employers from relying on the companionship and live-in domestic worker exemptions and would have drastically narrowed the definition of companionship services under the Fair Labor Standards Act (FLSA). On December 22, 2014, and on January 14, 2015, the court vacated both regulatory changes.

Hints About New FLSA Regulations Begin to Emerge: Minimum Salary May Double

Last spring, I made some predictions about what the new FLSA regulations would likely include when they were finally released. The regulations were delayed, but what we expect hasn’t changed, as I explained in November. On Twitter this past Friday (and you should be following @WageHourInsight, if you aren’t already), I highlighted an article that gives employers the first glimpse at what the Obama administration has planned.

FLSA Minimum Wage, Overtime Lawsuits Smash Records in 2014, Sharp Growth Continues

The dawning of a new year means it is time to look back at the number of cases filed in federal courts during the past year under the Fair Labor Standards Act. Every year seemingly without fail, that number goes up. 2014 was no exception.

Judge Vacates Parts of USDOL Home-Care Regulation

A federal judge has scuttled key aspects of the U.S. Department of Labor's rule that would have extended the federal Fair Labor Standards Act's minimum-wage and overtime requirements to many home care workers starting January 1, 2015. Although USDOL will likely appeal the court's rulings, for now home care agencies may anticipate that USDOL will not be enforcing those requirements as to home care aides and personal care attendants who fall within that law's companionship and live-in-domestic exemptions under the regulations that USDOL sought to change.

Court Vacates DOL’s New “Companionship Services” Definition

On January 14, 2015, the court in Home Care Association of America v. Weil vacated the U.S. Department of Labor’s (DOL) regulation narrowing the definition of “companionship services” under the Fair Labor Standards Act (FLSA). In doing so, the court reinstated the status quo for home health care businesses on the question of whether and how they can avail themselves of the FLSA’s minimum wage and overtime exemption for caregivers. Though home health care businesses are breathing a sigh of relief, it remains to be seen whether the DOL will appeal the court’s rulings and, if so, the outcome of that appeal.

eLABORate: Florida Department of Revenue and U.S. Department of Labor Join Forces to Reduce Misclassification of Employees

On January 13, 2015, the Florida Department of Revenue and the U.S. Department of Labor entered into a Memorandum of Understanding (“MOU”) whereby these agencies will work together to reduce the misclassification of employees as independent contractors. While the MOU has not yet been made public, the Department of Labor issued a press release discussing the agreement. At the core of the MOU is the agreement that the state and federal agencies share information and coordinate law enforcement in investigation and litigation of misclassification claims. According to the agencies, the MOU will further the dual purposes of protecting the rights of employees and leveling the playing field for employers who properly classify employees.

Federal Court Vacates Second and Final Major Provision of the Department of Labor's Home Care Rule

On Wednesday, January 14, 2015, the U.S. District Court for the District of Columbia vacated the U.S. Department of Labor's new rule that purported to narrow the definition of "companionship services" exempt from overtime under the Fair Labor Standards Act. Rejecting the DOL's arguments in support of the new rule, the court found that the statutory exemption of home care companions "clearly targets workers who provide services to those who need care. . . . Limiting that care to only 20 percent of a worker's total hours defies logic, and Congressional intent." The court concluded, "Here, yet again, the [DOL] is trying to do through regulation what must be done through legislation. And, therefore, it too must be vacated."

State Minimum Wage Increases Effective 2015

Employers with multi-state operations must remain abreast of developments in state and local wage and hour legislation, such as increases in state minimum wages. Many state laws provide for annual increases based on the U.S. Consumer Price Index and inflation. The states and localities that have increased minimum wages effective January 1, 2015, (except as noted) appear below. Because hospitality and similar employers also need to be aware of changes to the permissible tip credit that affect the minimum wage they must pay to customarily tipped employees, such increases also appear below. Of course, these changes to minimum wage rates also affect overtime pay calculations.