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.
Articles Discussing Overtime Under The FLSA.
When Will The DOL Issue Final Regulations Increasing The Salary Basis Threshold?
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.
Final Rules on Overtime, Crystalline Silica, and Persuader Agreements are Expected in the First Half of 2016
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.
Winter Is Coming – But What About Those FLSA Exemption Changes?
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.
DOH Reverses Position on Overtime Pay Under The Wage Parity Act
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.
Oklahoma Federal Court Finds Expense Reimbursement Need Not Be “Rolled In” To Overtime Calculation
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).
When Transferring Employees to the U.S., Foreign Employers Should Consider Impact if Proposed Changes to Overtime Exemption Are Approved
On July 6, 2015, the Department of Labor (“DOL”) proposed a revision to the “white collar” overtime exemption rule. As explained by Littler when it testified before the House Subcommittee, “the proposed white collar exemptions are unprecedented in the [Federal Labor Standards Act’s] 77-year history.” Even after this week’s hearing, it is unclear whether the rule will be implemented in its current version or whether additional changes will be made. The proposed rule has been published for more than 60 days and therefore DOL has authority to move forward to implement the rule. If implemented in 2016, the minimum salary for overtime exemption would jump from $23,660 a year to $50,440.
House Subcommittee Holds Hearing on Proposed Amendments to Overtime Rule
The Department of Labor’s controversial proposed changes to the “white collar” overtime exemption regulations came under fire during a House Subcommittee on Investigations, Oversight and Regulations hearing on October 8, 2015. Among other changes, the proposal released on July 6 of this year sets the minimum salary required for overtime exemption at the 40th percentile of weekly earnings for full-time salaried workers, which by the year 2016 is predicted to be $50,440. The proposal also provides for automatic increases to the minimum salary level. While the proposal did not explicitly include amendments to the duties test, the DOL requested input on whether and to what extent changes are warranted.
DOL: Comment Period Closed For Proposed Final Rule
n a letter to Congress, Wage-and-Hour Administrator David Weil yesterday stated that the Department would not extend the 60-day comment period for providing feedback regarding the Department’s proposed rule, indicating that “a comment period of this length . . . will meet the goal . . . of ensuring Department has level of insight from the public needed.”
Decision Limits Defenses to FLSA Overtime Claims
You’ve heard it before, here and likely elsewhere, of the risks of FLSA overtime lawsuits. Yet, these suits continue to make headlines. Simply put, qualified employers must pay employees at least 1.5 times their regular wage for every hour worked in excess of 40 hours per week.
D.C. Federal Court Vacates Regulation Excluding Third-Party Employers from the FLSA Companionship and Domestic Services Exemption
In a significant blow to the efforts of the U.S. Department of Labor (DOL) to exclude third-party employers from the companionship and domestic services exemption to the FLSA’s overtime and minimum wage requirements, the U.S. District Court for the District of Columbia today struck down the portions of the regulation applicable to third-party employers. In Home Care Association of America v. Weil,* the court reviewed the DOL’s revised regulation as applied to third-party employers and held it “not only disregard[ed] Congress’s intent, but seize[d] unprecedented authority to impose overtime and minimum wage obligations in defiance of the plain language” of the FLSA. Accordingly, the court granted the Home Care Association’s motion for summary judgment and vacated that portion of the regulation.
Legislation Would Greatly Expand Number of Employees Subject to Overtime
Two months after President Obama issued an Executive Order directing the Department of Labor to “modernize and streamline” the agency’s “white collar” overtime exemption regulations governing the scope of the executive, administrative, professional, outside sales, and computer exemptions under the Fair Labor Standards Act (FLSA), Senate lawmakers have introduced legislation that builds on this idea. Sponsored by Sen. Tom Harkin (D-IA), Chairman of the Senate Committee on Health, Education, Labor and Pensions, the Restoring Overtime Pay for Working Americans Act (S. 2486) would entitle substantially more workers to overtime compensation, and establish recordkeeping penalties for employers.
Pennsylvania Federal Court Denies Conditional Certification in Two Cases Finding No Common Proof
In Banks v. RadioShack Corporation, three sales associates filed a putative collective action alleging that the Philadelphia area district manager altered and directed others to alter sales associates’ time records, depriving them of minimum wage and overtime pay in violation of the FLSA.
New Executive, Legislative, and Regulatory Efforts Focus on Overtime, Minimum Wage
All three branches of government took aim at increasing employee pay on Wednesday. At the executive level, several news outlets have reported that the President on Thursday will direct the Department of Labor’s Wage and Hour Division (WHD) to revise its long-standing overtime regulations. At the regulatory level, the DOL’s Employment and Training Administration (ETA) announced that it plans to re-issue a proposed wage rule for the H-2B temporary guest worker program that would likely increase the hourly wages for H-2B workers as well as for U.S. workers recruited in connection with the H-2B program. Finally, the Senate Committee on Health, Education, Labor and Pensions (HELP) held a contentious hearing on the proposed Fair Minimum Wage Act, which would increase the minimum wage to $10.10 per hour and index it to inflation, as well as increase the hourly rate for tipped employees.
Two Courts of Appeals to Consider Legality of Paying Incentive Compensation to Fluctuating Workweek Employees
In a pair of appeals that will have significant implications for employers that utilize the fluctuating workweek (FWW) method of calculating overtime compensation, the U.S. Courts of Appeals for the Second and Sixth Circuits are considering whether the payment of incentive compensation (in addition to fixed weekly salary) is incompatible with the FWW method. Nothing says “no good deed goes unpunished” quite like a claim that the payment of additional compensation invalidates an otherwise lawful compensation plan.