The wait is nearly over to find out what the Department of Labor’s final rule revising white collar overtime exemption regulations will require. In this podcast, Littler shareholder, Tammy McCutchen, Esq., discusses the likelihood of different changes, as well as the potential timing of the Final Rule and its impact on employers. Tammy explores the following frequently asked questions:
Articles Discussing Overtime Exemptions Under The FLSA.
Will The New Minimum Salary Be Pro-Rated for Part-Time Exempt Employees?
No.
Fourth Circuit Holds Insurance Fraud Investigators are Not Exempt from Overtime Pay, Creating Circuit Split
Disagreeing with a sister circuit, the U.S. Court of Appeals for the Fourth Circuit has held that insurance fraud investigators were misclassified as exempt from overtime pay under the administrative exemption of the Fair Labor Standards Act, signaling that it will construe the exemption narrowly. Calderon v. GEICO General Insurance Co., 2015 U.S. App. LEXIS 22546 (4th Cir. 2015).
Wynn Marketing Executive Host Is Exempt Administrative Employee Due To Exercise of Discretion
Earlier this week, the U.S. Court of Appeals for the Ninth Circuit issued an unpublished decision affirming summary judgment in favor of Wynn Las Vegas with respect to overtime claims asserted by a Slot Marketing Executive Host. Dannenbring v. Wynn Las Vegas, LLC, 2016 U.S. App. LEXIS 5715 (9th Cir. Nev. Mar. 28, 2016).
Get Ready: USDOL Sends Final White Collar Exemption Rule to OMB – Could be Published in 30 to 60 Days
Executive Summary: On Tuesday, March 15th, the US Department of Labor (DOL) sent to the White House’s Office of Management and Budget (OMB) its Final Rule revising the White Collar Exemption Regulations, which will likely expand overtime eligibility for millions of workers. Typically, the OMB review takes anywhere from 30 to 60 days. Therefore, the Final Rule could be published at any time in the next couple of months.
DOL’s White Collar Overtime Rule Advances
Despite significant concern from some lawmakers and the business community, the Department of Labor sent its final rule revising white collar overtime exemption regulations to the White House Office of Management and Budget (OMB) on Monday. OMB review is the last step in the regulatory process before publication in the Federal Register. The average review period typically lasts four to six weeks, which could mean the final rule will be published this spring, as opposed to around Labor Day, the target date many Hill watchers had assumed.
Update – DOL’s Final White Collar Exemption Rule Could Be Published Earlier Than July 2016
As discussed in our February 17 Alert, http://www.fordharrison.com/usdol-says-final-rule-will-be-published-in-july-2016-and-be-effective-within-60-days, employers should be prepared for implementation of the U.S. Department of Labor’s (DOL) Final Rule revising its White Collar Exemption Regulations. While it appeared from comments made at the American Bar Association’s (ABA) Midwinter Meeting of the Federal Labor Standards Legislation Committee that the Final Rule should be published in July 2016, DOL Solicitor of Labor M. Patricia Smith later clarified that the Final Rule could be published in or before July and will take effect at least 60 days later.
Continued Controversy Surrounding The Proposed New Overtime Rule
Since June, we have written a number of posts covering the Department of Labor’s proposed new overtime rule (see our posts here), and the more than doubling of the salary level threshold for white collar exempt positions. The proposed increase in the salary threshold was quite polarizing and resulted in nearly 300,000 comments.
DOL Says Final Rule Will Be Published in July 2016 and Be Effective Within 60 Days
During today’s session of the 2016 American Bar Association’s (ABA) Midwinter Meeting of the Federal Labor Standards Legislation Committee, the U.S. Department of Labor (DOL) Solicitor of Labor M. Patricia Smith announced that the DOL’s Final Rule regarding the Fair Labor Standards Act (FLSA) White Collar Exemption Regulations will be published in July 2016, with an effective date of 60 days later. This timeline is consistent with the DOL’s semi-annual regulatory agenda released late last year, which also proposed a July 2016 Final Rule timetable.
DOL Issues Guidance on Joint Employment under FLSA
The Department of Labor’s Wage & Hour Division (WHD) has issued an Administrator’s Interpretation (AI)1 establishing new standards for determining joint employment under the federal Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). While it remains to be seen how much deference will be accorded such sub-regulatory guidance,2 the WHD will likely use the AI as justification for charging a greater number of employers with violations of these statutes on the grounds they are joint employers with the offending entity.
Friendly Reminder: The Computer Employee Exemption
We recently received a question regarding whether an employer could classify certain IT employees as exempt under the Computer Employee exemption. With the long-awaited final DOL overtime rules for the white collar exemptions yet to make their appearance, we thought this would be a good opportunity to switch gears and remind you of the general requirements for meeting the Computer Employee exemption.
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).
Court Finds Commissioned Jewelry Salesman Qualifies For Outside Sales Exemption Based On His Own Complaint’s Allegations
Because most FLSA exemptions are affirmative defenses, their applicability is not often established by the Plaintiff’s Complaint, of which s/he is “master” and can shape to avoid addressing exemption-triggering duties. There are exceptions. In a recent opinion, a Manhattan federal district judge ruled that a commissioned salesman who traveled from his home office to conduct jewelry sales at customers’ places of business qualified as an exempt outside salesperson under the FLSA and New York Labor Law based on his own Complaint’s allegations. Cangelosi v. Gabriel Bros, Inc., 15-cv-3736 (JMF), 2015 U.S. Dist. LEXIS 140579 (S.D.N.Y. Oct. 15, 2015).
Proposed Rule Gets 264,000 Comments
Last week, we reminded you that the public comment period on the DOL’s proposed changes to the FLSA white collar exemptions was going to end on Friday, September 4, 2015, and the DOL was not going to extend this comment period despite requests to do so. True to its word, the public comment period came and went without an extension from the DOL.
On Second Thought, Court Holds Underwriters Qualify For Administrative Exemption
Applicability of the technical FLSA exemptions can sometimes turn on subtle distinctions, a frustrating proposition for FLSA litigants. A new opinion highlights these subtleties, as, on a motion for reconsideration made ahead of a bench trial, a court reversed its earlier ruling denying summary judgment to defendant bank as to the applicability of the administrative exemption to the bank’s underwriters, and granted summary judgment in defendant’s favor. McKeen-Chaplin v. Provident Sav. Bank, FSB, 2015 U.S. Dist. LEXIS 106245 (E.D. Cal. Aug. 12, 2015).