The United States Department of Labor (USDOL) has finally released its much-publicized and frequently delayed Notice of Proposed Rulemaking, which would update the Fair Labor Standards Act (FLSA) regulations concerning who is and is not eligible for overtime pay under federal law. The USDOL estimates that some 5 million “white collar” workers will become newly eligible for overtime pay should the proposed rule go into effect.
Articles Discussing Overtime Exemptions Under The FLSA.
New FLSA Regulations Released, Salary Threshold Doubled
Since last spring, we have been following developments in the oft-delayed Fair Labor Standards Act (FLSA) regulations rewrite by the Department of Labor (DOL). The Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) has now completed its review, and the Department of Labor finally released its new Fair Labor Standards Act (FLSA) regulations today. The official DOL notice and the FAQs are posted on the DOL website.
Attorney Lawsuit over Overtime Pay
Professionals often require additional assistance handling time-consuming, but routine, tasks. This is particularly apparent in complex litigation that involves voluminous discovery and document review. Not surprisingly, document review can quickly become one of the more labor-intensive and expensive stages of the case. In order to meet this challenge, many firms will hire temporary attorneys to review the discovery for privilege and scope. Before doing so, query whether these firms consider the overtime implications of the FLSA.
Moving Exempt Employees to Non-Exempt Status [Wage & Hour FAQs]
We discuss the misclassification of non-exempt employees regularly here on the blog and in our presentations at conferences and webinars, but a reader of the blog wrote me before the holiday weekend to ask about the reverse situation.
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).
DOL Sends Proposal to Narrow Overtime Exemptions to the White House
In March 2014, President Obama ordered the U.S. Department of Labor to revise the “white collar” overtime exemption regulations. Declaring “Americans have spent too long working more and getting less in return,” the President ordered the revision of the overtime exemption regulations with a goal of making millions more workers eligible for overtime pay. On May 5, 2015, Secretary of Labor Perez announced that the DOL has submitted the proposed changes to the overtime regulations to the White House’s Office of Management and Budget (OMB) for approval.
DOL Sends New FLSA Regulations to OIRA for Final Review Before Draft Publication
Since last spring, we have been following developments in the oft-delayed Fair Labor Standards Act (FLSA) regulations rewrite by the Department of Labor (DOL). Yesterday, we received word that the DOL has completed a draft of the new regulations and sent them to the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) for review. On Tuesday, Perez wrote in a DOL blog post, “We’ve worked diligently over the last year to develop a proposed rule that answers the President’s directive and captures input from a diverse range of stakeholders. After extensive research, study and careful analysis, we have submitted the proposed rule to the Office of Management and Budget for review. In the near future, the public will have an opportunity to weigh in and help us craft a final rule.” The submission of the new draft regulations to OIRA is the final step before the DOL officially releases the new regulations as a Notice of Proposed Rule Making for public comment.
Lesser Known Exemptions: The “Ministerial” Exception to the FLSA
Last week, in my post about the impact of the various iterations of the Religious Freedom Restoration Act (RFRA) on wage and hour law, we discussed the general rule that the FLSA does not contain blanket exceptions or exceptions for religious entities or individuals, with only a few exceptions. One potential caveat to this rule is an FLSA exception for ministers and clergy, the so-called “ministerial” exception.
Supreme Court Upholds DOL’s Rulemaking Procedure in Reclassifying Mortgage Loan Officers
Executive Summary: On March 9, 2015 the U.S. Supreme Court held that a federal agency is not required to engage in notice-and-comment rulemaking when it issues an interpretation of a regulation that is significantly different from its prior interpretation. In Nickols v. Mortgage Bankers Association, the Court overruled a line of cases established by the Ninth Circuit, which required administrative agencies to engage in notice-and-comment rulemaking when changing a prior administrative interpretation of an agency regulation. Although the Court’s ruling specifically addresses the actions of the U.S. Department of Labor (DOL), it could have significant ramifications in other areas as federal agencies continue their efforts to implement the Obama Administration’s aggressive employment related agenda.
Insurance Industry Wins Temporary FLSA Exemption for Insurance Adjusters in CRomnibus
On Tuesday, we discussed Congress’s passage of the Consolidated and Further Continuing Appropriations Act, 2015, nicknamed CRomnibus in the waning days of the 2014 legislative session. The omnibus spending bill avoided another government shutdown and funded most federal agencies (save for the Department of Homeland Security) through the end of the federal government’s fiscal year on September 30, 2015. As we discussed, the DOL—which earned funding increases across the board—and the trucking industry—which earned a temporary reprieve from maximum hours-of-service regulations—both came out big winners. However, we note that the insurance industry also benefitted from a provision tucked into the DOL appropriations in CRomnibus.
DOL Sets February 2015 Deadline for New FLSA “White Collar” Overtime Exemption Regulations
Late last month, the Department of Labor released its Fall 2014 Agency Rule List that included a range of proposed regulations covering everything from the FMLA definition of “spouse” to labor union annual reports and persuader rules. Most importantly for readers of this blog, though, the DOL added an entry to its list for a proposed rule to implement President Obama’s directive to modernize and streamline FLSA regulations for executive, administrative, and professional employees. The DOL now expects to publish the rule by the end of February 2015, according to this filing with the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA).
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.
White Collar Exemptions: Paying Employees Wages in Equity, Rather than Cash
The saying goes that “Cash is King.” However, entrepreneurs often quickly learn (sometimes in painful ways) that it is Cash Flow that is really King. Run a quick Google search for “accounts receivable” financing or factoring to get a sense of how important that market is for businesses.
FLSA Overtime, Minimum Wage Lawsuits Continue to Skyrocket
My colleagues and I talk regularly about the ever-increasing number of wage and hour cases alleging violations of minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA). These cases aren’t going away, which means that I will probably have plenty to blog about over the next year. According to PACER, litigants filed a total of 8,119 FLSA cases between May 1, 2013 and April 30, 2014. For comparison purposes, from May 1, 2012 to April 30, 2013, plaintiffs filed 7,388 FLSA cases. That is an increase of10%, breaching not only the 7,500 case mark, but also the 8,000 case mark for the first time. Just for reference, PACER reports just 3,456 FLSA cases were filed a decade ago between May 2003 and April 2004. Part of this increase is due in part to Plaintiffs, Plaintiffs’ attorneys and the government (Secretary Perez’s administration alone brought nearly 160 cases last year) being both more familiar with workers’ rights under the FLSA and more aggressive in defending those rights.
Rules Governing Overtime, Reportable “Persuader” Information, to be Released this Year According to Federal Spring 2014 Regulatory Agendas
Once again, federal agencies quietly released their semi-annual regulatory agendas on the eve of a long holiday weekend, and on the same day President Obama announced his nomination of Shaun Donovan to lead the Office of Management and Budget (OMB). Twice a year, agencies set forth all rulemaking items under development, along with target completion dates. While these dates are often aspirational, they do provide some insight into which rules will be released sooner rather than later, and which items have been placed on the backburner.