Articles Discussing Overtime Under The FLSA.

In a case of first impression, the Ninth Circuit held last week in Flores v. City of San Gabriel that an employer was liable to a class of employees for underpaid overtime compensation stemming from the employer’s failure to include cash-in-lieu of benefits payments in its calculation of the regular rate for overtime purposes.

According to a report from Bloomberg BNA, unnamed DOL staffers have stated that the salary threshold in the hotly anticipated FLSA exemption rules will be about $47,000 per year, down slightly from the $50,440 level suggested by the proposed rules published last summer. This is not an official announcement, so while the statement may well be accurate, we suggest waiting until the rules are actually published before employers take any definite action based on the information.

The U.S. Department of Labor’s Final Rule raising the salary threshold applicable to the so-called white collar exemptions under the Fair Labor Standards Act will likely take effect within the next few months. The Final Rule was submitted last week by the DOL to the White House Office of Management and Budget, a necessary first step before publication in the Federal Register. The new regulations are expected to expand by millions the number of employees eligible for overtime pay.

Last year, the Department of Labor (“DOL”) published proposed regulations overhauling the federal white collar overtime exemptions. In its proposed regulations, the DOL proposed increasing the minimum salary to qualify for exempt status (under the white collar exemptions for administrative, executive, and professional employees) from $23,660 per year to approximately $50,440 per year, and increasing the minimum salary to qualify for the highly compensated employee exemption from $100,000 per year to approximately $122,148 per year.

Wage-related bills have been popular in Congress this week. While none of these measures are expected to be enacted during this election year, they provide clues to the battle that lies ahead for the Department of Labor’s final overtime rule, and highlight the pay-related issues that might gain traction at the state and local levels.

Just a few weeks ago, we posted our latest update on the Department of Labor’s proposed new overtime rule, which calls for a more than doubling of the salary level threshold for white collar exempt positions. At that time, we reported on the House Education and Workforce Committee’s renewed inquiry into the DOL’s outreach efforts, which some saw as an attempt by Congress to somehow delay or affect the issuance and implementation of the final rule.

Multiple sources have reported that yesterday the USDOL sent the proposed final overtime rule to the Office of Management and Budget (OMB) for its mandatory review. If OMB’s review is completed on an expedited basis, DOL could disseminate the proposed final rule to the public by mid-April, with an effective date potentially as early as the beginning of June, subject to delay from that date based on Congressional review under the Congressional Review Act.

Executive Summary: In Lai Chan et al. v. Chinese-American Planning Council Home Attendant Program, Inc., decided February 3, 2016, the Southern District of New York (covering New York, Bronx, Westchester, Rockland, Putnam, Orange, Dutchess, and Sullivan counties) deferred to arbitration the unpaid wage and overtime claims of sleep-in workers covered by a union agreement, even though the agreement to arbitrate was signed after the lawsuit alleging these claims against the home care agency was commenced. An earlier decision in this same case from the New York County Supreme Court had denied the agency’s motion to dismiss the complaint, and volunteered that under New York Labor Law, sleep-in workers must receive wages for 24 hours of work. This question will now be decided in arbitration, not in a court action.

In the latest chapter in the ongoing saga regarding contract attorneys claiming to be overtime eligible, Judge Ronnie Abrams of the Southern District of New York ruled that a contract attorney reviewing documents for litigation firm Quinn Emanuel was “practicing law” and thus exempt from overtime pursuant to 29 C.F.R. § 541.304(a)(1). Henig v. Quinn Emanuel Urquhart & Sullivan, LLP, S.D.N.Y., No. 1:13-cv-01432, 12/30/15.

Since the United States Department of Labor announced its intention, in response to the President’s directive, to more than double the salary basis necessary to qualify for the “white collar” exemptions from overtime, the business community has swung into action. Employers and associations have both been lobbying for a more modest increase to the minimum required salary and simultaneously preparing to comply with the new rule should it take effect in its current proposed form. One key element of that compliance is of course budgeting for exactly when the new rule will be promulgated in final form and then effective.

On Friday, federal agencies released their Fall 2015 Regulatory Plans and Unified Agendas. These semiannual reports detail all agency rulemaking efforts at their various stages of development and implementation. The regulatory plan, published along with the fall edition of the agenda, identifies agency priorities and provides information about the significant rulemaking actions the agencies expect to take in the year ahead.

Waiting is the hardest part. Ever since the Department of Labor issued its proposal to substantially increase the minimum salary level needed to classify an employee as an exempt executive, administrative or professional employee, employers have been asking when the new rules will take effect.

You may be thinking we’re the lawyers who cried wolf since we warned you not once, not twice, but three times that there were imminent changes coming to the requirements meet certain exemptions from minimum wage and overtime under the Fair Labor Standards Act (“FLSA”). We’re not – those changes are still coming. But, now that the period during which the public could comment on the proposed rule has closed and the Department of Labor (“DOL”) is faced with 270,000 comments, it now looks like the revisions won’t go into effect until late 2016 (or possibly even 2017), and we’re still uncertain about what those changes will actually look like.

Executive Summary: On November 2, 2015, the NYS Department of Health (“DOH”) issued important notices affecting the wage and overtime obligations of New York City and Nassau, Suffolk, and Westchester County home care agencies. In addition to setting Total Compensation under the Wage Parity Act for March 1, 2016 – February 28, 2017, the DOH reversed its existing position that overtime pay does not reduce the additional and supplemental wage package due on each episode of care hour worked under the Wage Parity Act. This reversal of position has major ramifications for the home care industry in downstate New York.

Fixed payments made on other than an hourly basis to non-exempt (i.e., overtime eligible) workers often must be included in the regular rate of pay for purposes of calculating overtime. One type of payment that may be excluded from the regular rate calculation is payment for “reasonable payments for travel expenses, or other expenses, incurred by an employee in the furtherance of his employer’s interests and properly reimbursable by the employer,” a provision interpreted by Judge Claire V. Eagen of the Northern District of Oklahoma in a new decision. Sharp v. CGG Land (U.S.) Inc., 2015 U.S. Dist. LEXIS 141658 (N.D. Okla. Oct. 19, 2015).