Executive Summary: Last week, on August 28, 2018, the U.S. Department of Labor (DOL) issued four Fair Labor Standards Act (FLSA) opinion letters. In welcome late-summer news to employers, each opinion is employer-friendly. Below is a summary of each.
Articles About The Federal Government’s Employment, Benefits And Immigration Agencies.
DOL Issues Six New Opinion Letters and Establishes a New Office of Compliance Initiatives
The U.S. Department of Labor (DOL) has issued six new opinion letters addressing various matters under the federal Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA). According to the DOL, the release of this guidance “demonstrates the agency’s continued commitment to providing meaningful compliance assistance to help employees understand their rights and ensure that employers have the information they need to comply with federal labor laws.” The DOL also announced the formation of an Office of Compliance Initiatives to strengthen employer compliance assistance.
Brett Kavanaugh Nominated to U.S. Supreme Court
In the wake of Justice Anthony Kennedy’s retirement, President Donald Trump was presented with the rare opportunity to make his second U.S. Supreme Court nomination in as many years, nominating the Honorable Brett M. Kavanaugh to succeed Justice Kennedy. If confirmed by the Senate, Judge Kavanaugh would bring more than a dozen years of judicial experience to the position.
A Closer Look at Trump’s Latest SCOTUS Nominee: Brett Kavanaugh
On July 9, 2018, President Trump nominated Judge Brett M. Kavanaugh to potentially fill the impending U.S. Supreme Court vacancy created by Justice Anthony Kennedy’s retirement, which takes effect on July 31, 2018. Judge Kavanaugh currently sits on the U.S. Court of Appeals for the D.C. Circuit. He has consistently demonstrated conservative legal reasoning as an appellate judge and is likely to bring that perspective to the Supreme Court, if confirmed.
Latest Merger News: Proposal to Merge Departments of Labor and Education
Early in the Trump Administration, it was proposed to move OFCCP into the EEOC. Congress subsequently rejected the budget proposal containing the proposed merger and the idea was put to rest.
Agencies Release Regulatory Roadmap for 2018 and Beyond
The latest Unified Agenda of Regulatory and Deregulatory Actions (“spring agenda”) continues this administration’s trend of adding fewer new rules and reexamining older ones. These semiannual agendas provide insight into federal agency priorities for the coming year. While the list of upcoming rules is relatively pared down compared to those issued during the prior administration, there are still a few surprises in the spring agenda. Notably, the Department of Labor (DOL) is pushing the issuance of a new proposed rule governing overtime into 2019, and the National Labor Relations Board (NLRB) is considering drafting a rule on joint employment. Some highlights of the spring agenda are discussed below.
The Equal Pay Act & Salary History
Show of hands: who’d like to receive less pay for performing the same functions as your colleagues?
DOL Issues New Information on its PAID Self-Audit and Self-Reporting Program
Last month, we reported on the U.S. Department of Labor, Wage and Hour Division’s (“WHD”) newly created Payroll Audit Independent Determination (“PAID”) Program, through which employers can proactively seek to resolve potential and actual violations of the Fair Labor Standards Act (“FLSA”). The WHD recently issued additional information on the program. While not all-encompassing, the new publication sheds more light on the program’s mechanics and the “steps” employers must take to participate.
DOL Issues Three Opinion Letters and One Fact Sheet
On April 12, 2018, the United States Department of Labor issued three opinion letters that provide guidance on how employees without “normal working hours” should be compensated for travel time involving an overnight stay, whether rest breaks provided as a reasonable accommodation are compensable, and what forms of lump-sum payments can be garnished for child support. In addition, the DOL issued a fact sheet detailing when teachers, coaches, and other professionals who work at higher education institutions should be paid overtime.
DOL Launches “PAID” Self-Audit Program
On April 3, 2018, the U.S. Department of Labor’s Wage and Hour Division (WHD) launched the Payroll Audit Independent Determination program (PAID) on a six-month trial basis. The intent of the program is to allow employers to pay back wages to workers for inadvertent overtime and minimum wage violations under the Fair Labor Standards Act (FLSA) while avoiding penalties and litigation expenses.
What to Make of the DOL’S PAID Program
You may have read about the U.S. Department of Labor’s new “Payroll Audit Independent Determination” or “PAID’’ pilot program. Under this program, the DOL invites employers to voluntarily audit their payroll practices and disclose any “non-compliant practices” to the DOL. The DOL then reviews the employer’s records and calculations of what is owed to employees, and tells the employer what it thinks the employer should pay. The employer then pays its employees, and employees sign a release of any FLSA claims against the employer. Participating employers are not subject to civil monetary penalties and are not required to pay liquidated damages to employees. (Available details on the program are included in the DOL’s press release and a FAQ page on the DOL’s website.)
Getting “PAID” Just Got Easier: The DOL Rolls out a Pilot Initiative to Streamline the Resolution of Wage and Hour Violations
Executive Summary. On March 6, 2018, the Wage and Hour Division (W&HD) of the U.S. Department of Labor (DOL) rolled out a new nationwide pilot initiative, called the Payroll Audit Independent Determination program—or “PAID.” This initiative is designed to streamline the resolution process of potential overtime and minimum wage violations of the Fair Labor Standards Act (FLSA). Such potential violations as “off-the-clock” work violations, failures to pay overtime wages, or employee misclassification would expressly fall within the ambit of PAID. According to the W&HD, PAID’s objectives are expeditious resolution of FLSA claims without litigation, improved employer compliance with its overtime and minimum wage obligations under the law, and a fast delivery of owed back wages to workers.
DOL Launches Payroll Audit Independent Determination (PAID) Program to Promote Self-Reporting and Early Resolution of Wage and Hour Claims
On March 6, 2018, the U.S Department of Labor’s Wage and Hour Division announced its new Payroll Audit Independent Determination (PAID) program. Initially being rolled out as a six-month pilot program, PAID provides employers with a unique opportunity—and indeed, motivation—to proactively address potential wage and hour underpayments under the Fair Labor Standards Act (FLSA) while simultaneously helping to protect themselves against litigation threats from the DOL and individual employees. While the details of the PAID program are yet to be announced, the DOL has announced the basic outline.
Annual Report on EEOC Developments — Fiscal Year 2017
This Annual Report on EEOC Developments—Fiscal Year 2017, our seventh annual Report, is designed as a comprehensive guide to significant EEOC developments over the past fiscal year. The Report does not merely summarize case law and litigation statistics, but also analyzes the EEOC’s successes, setbacks, changes, and strategies. By focusing on key developments and anticipated trends, the Report provides employers with a roadmap to where the EEOC is headed in the year to come.
The EEOC Phoenix District Office Challenges Releases Waiving Future Financial Liability for Discrimination Claims
A recent settlement shows that the Equal Employment Opportunity Commission (EEOC) continues, from time to time, to take the position in litigation that an employee’s private release may not waive the employee’s right to receive future financial relief in an EEOC discrimination action.