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.
Articles Discussing Overtime Under The FLSA.
New Exemption Rules May Be Delayed To Late 2016
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.
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.”
Determining When a Commission is “Earned” When Calculating the Regular Rate
In our last post, we discussed the calculation of the “regular rate” and some of the complexities of determining what constitutes “remuneration” under the Fair Labor Standards Act (FLSA). Commission is one of the additional forms of compensation that you must include in a non-exempt employee’s regular rate. Such a calculation is relatively straightforward if all remuneration is paid in the same week as it was earned. What can make this calculation difficult, though, is when the employee earns cash or non-cash remuneration after the workweek ends. Often, employers do not pay commissions or bonuses in the same week as hours worked, but instead at some later date—at the end of a month, a quarter, or a year. Determining the impact of these later earnings on the regular rate may require a look-back calculation to apportion these earnings to their proper, earlier weeks. We’ve discussed how to do this calculation for bonuses before, but let’s take a look at commissions, which can and often do require a slightly different calculation, or at least some additional planning.
Even for Hourly Workers, Calculating the “Regular Rate” Can Be Complex
No matter if you are new to the wage and hour world and this blog, you still probably know that employers need to pay their non-exempt employees an overtime premium for all hours worked in a workweek beyond 40, pursuant to the Fair Labor Standards Act (FLSA) and applicable state law. Whatever overtime rate you implement—whether time-and-a-half or a half-time premium—the overtime rate is always based on the employee’s “regular rate.” In past posts, we have looked at special problems that calculating the regular rate raises for employers who pay non-exempt workers a salary, particularly if the employees also earn commissions or bonuses. Even if compensation paid does not fall into one of these “special” problem buckets, the regular rate calculations for non-exempt employees can prove tricky at times.
Some Additional Thoughts on “Half-Time” Overtime: The Fluctuating Workweek Method
Last week, we discussed the fluctuating workweek method and its possible benefits. Remember that the fluctuating workweek method is not a “save lots of overtime expenses method.” Employers who use the fluctuating workweek to clamp down on overtime expenses often end up shifting those expenses from the payroll budget to the litigation budget.
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.
Wage and Hour Basics Series: The FLSA Overtime Exemptions
Last month, we debuted our series on wage and hour basics with a review of the white collar exemptions. As the Department of Labor gets ready to issue revised FLSA regulations, we will continue take a look at some of the more fundamental concepts of the FLSA. As always, remember that these are just the basics: the application of these rules to specific facts is where the rubber really meets the road for employers.
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.
A Wolf in Sheep’s Clothing is Still a Wolf: The FLSA Regular Rate and Breach of Contract
Recently, I read about a construction contractor in Los Angeles caught in the middle of litigation between its subcontractors and the city, on behalf of the subcontractor’s former employees. According to the employees, the subcontractors had allegedly promised to pay them the prevailing wage for that area of $49.00 per hour, but had only paid them $5.00 to $8.00 instead. Ultimately, the complaint focused on the subcontractors’ falsification of records and misclassification of employees, and related city and state law violations, rather than which rate was the real “regular rate” for FLSA purposes: the proper $49.00 per hour prevailing wage rate the subcontractors had promised, or the actual $5.00 to $8.00 rate they paid. But what if the employees had sought overtime based on the higher rate? Would dressing up a breach of contract claim as one for overtime under the FLSA have worked?