Articles Discussing General Topics Under The FLSA.

It happens every year: I read a decision from a federal judge about the federal Fair Labor Standards Act and shake my head that it actually took litigation to resolve such an obvious question. It is only March, but 2015 already is no different. A recent decision by a federal district judge in New York compelled me to bring back our periodic Captain Obvious posting.

Last week, Secretary of Labor Thomas Perez testified during a hearing held by the House Education and Workforce Committee to discuss President Obama’s budget proposal for the Department of Labor. Secretary Perez’s testimony touched a wide range of topics, most notably the oft-delayed FLSA regulations rewrite we have discussed in recent months. The DOL Secretary also echoed President Obama’s call for an increase in the federal minimum wage, despite the action of 17 states to enact increases in the past few years.

The calendar has flipped from February to March, but there is still nothing from the Department of Labor regarding new regulations governing the Fair Labor Standards Act. Don’t worry, you haven’t missed anything. The DOL missed its February deadline and has not announced any new deadlines just yet. As we have written here, the new regulation is intended to implement President Obama’s directive to modernize and streamline FLSA regulations for executive, administrative, and professional employees. Although the calendar has changed to February, the page where the regulations, or at least a final release date, would be announced has yet to change.

On December 23, 2014, the Consumer Financial Protection Bureau (CFPB) issued a Notice of Proposed Rulemaking (NPRM) that seeks to regulate a number of prepaid products under Regulation E (a federal banking regulation), including payroll cards. While payroll cards already are subject to Regulation E, the NPRM would impose a number of new requirements on financial institutions that issue payroll cards, including requiring proposed disclosure forms that (1) advise employees that they do not need to receive a payroll card; (2) focus solely on fees and (3) require extensive paperwork for credit features such as overdraft protection.

In many ways, federal immigration laws and various labor and employment laws, including the FLSA, may appear fundamentally at odds with each other: prohibiting work by undocumented workers on one hand, but allowing them to recover damages when they are not paid work on the other. We have examined this issue with state laws in the past on this blog, and published lengthier articles on the topic elsewhere as well. This past month, the District of Arizona confronted a damages question concerning the intersection of these laws in Vallejo v. Azteca Electrical Construction.

When I was a kid, my grandpa (a trained biochemist) used to teach me how to burn things and blow things up with my little home chemistry set. But that’s a story for another time. He also used to tell me a story that I never could quite figure out when I was young.

As if the DOL’s new Fair Labor Standards Act regulations weren’t enough to fill your plate this year, a recent interview (subscription required) that the DOL’s Wage and Hour Division Administrator David Weil gave to BNA’s Daily Labor Report has added to what portends to be a monumental shift in wage and hour law.

At the end of last year, we discussed the Pay Period Leap Year and what it means for employers. If your first weekly paychecks will issue on Thursday, January 1, 2015, you will have a fifty-third pay period on December 31, 2015. If your first bi-weekly paychecks will issue on Thursday, January 1, 2015, you will have a twenty-seventh pay period on December 31, 2015, depending on payday holiday processing rules. This means that for employers who pay employees weekly or bi-weekly, 2015 could be a Pay Period Leap Year, but it doesn’t mean that all of your employees will have one. We discussed three options for handling Pay Period Leap Years if you pay employees on a weekly or bi-weekly basis, each of which we discussed in detail in our December post:

If you read this blog regularly, you know that since last spring, we have been telling you about what to expect from the new Fair Labor Standards Act regulations. The regulations were delayed, but what we expect hasn’t changed, as I explained in November. According to the Fall 2014 Agency Rule List, the DOL’s “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees” regulation should be ready this month. The regulation is intended to implement President Obama’s directive to modernize and streamline FLSA regulations for executive, administrative, and professional employees. Although the calendar has changed to February, the page where the regulations, or at least a final release date, would be announced has yet to change.

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.

In the run-up to the holidays, Congress rushed a Continuing Resolution (CR) to President Obama’s desk entitled the Consolidated and Further Continuing Appropriations Act, 2015. The omnibus spending bill, nicknamed “CRomnibus,” avoided another government shutdown and funded most federal agencies (save for the Department of Homeland Security) through the federal government’s 2015 fiscal year, which ends on September 30, 2015. As with many omnibus spending bills, Congress buried in the CRomnibus a number of actions intended to restrict federal agencies’ activities and, in some cases, to make substantial changes to existing laws. Of particular note to readers of this blog, both the Department of Labor and the trucking industry came out winners in the wage and hour world. CRomnibus increased funding for the Department of Labor and several of its subagencies, and handed motor carriers a temporary reprieve from the FMCSA’s 2013 maximum hours-of-work regulations.

Executive Summary: The U.S. District Court for the District of Columbia has issued a Temporary Restraining Order (“TRO”) blocking the U.S. Department of Labor (“DOL”) from enforcing the new definition of Companionship Services in its Final Rule on the Application of the Fair Labor Standards Act to Domestic Service Order (“Final Rule”), which was set to take effect, January 1, 2015. On December 22, 2014, this same court had vacated the Final Rule’s differing treatment of home care agencies versus direct-hire employers, such as individuals, families, and households, stating that both should benefit similarly from the “companionship services” and “live-in” exemptions under the Fair Labor Standards Act (“FLSA”). To determine whether a Preliminary Injunction should issue, the court will hold a hearing on January 9, 2015.

When I was a kid, my parents taught me the traditional Mother Goose rhyme to remember how many days each month had: “Thirty days hath September, April, June, and November. All the rest have 31….Except for February.” It always seemed odd that this supposed Mother Goose rhyme couldn’t figure out how to fit February in. The payroll calendar, at least for those employers with bi-weekly pay periods, doesn’t fit it in either. That means that while 2015 isn’t a leap year on the calendar, it will be a Pay Period Leap Year for many employers.

As you know, under the FLSA, “bona fide meal periods” are not regarded as work time and can be unpaid. For a break to qualify as a bona fide meal period, “[t]he employee must be completely relieved from duty for purposes of eating regular meals,” and the break must generally be at least 30 minutes or longer. The rules even allow periods shorter than 30 minutes to qualify as unpaid “under special circumstances.” For example, in a 2004 opinion letter, the Department of Labor found that an employer could permissibly reduce its 30-minute unpaid lunch break to 20 minutes and provide an extra 10 to 15-minute paid break, given that the employer and employees’ union agreed to the arrangement and that it took employees only one to one-and-a-half minutes to reach the break room once they were relieved from duty.

As we discussed recently, this month marked the opening of the Supreme Court’s new term. For employment law practitioners, this session will be particularly busy with seven cases analyzing a range of employment questions, from the scope of the EEOC’s duty to conciliate discrimination claims to the applicability of whistleblower protection laws and the Pregnancy Discrimination Act. In Part 1 of this series, we discussed Integrity Staffing Solutions, Inc. v. Busk.