In a recent decision, the National Labor Relations Board (“Board”) ruled that overly broad confidentiality and non-disparagement clauses in severance agreements are unlawful. In fact, even the mere offering of a severance agreement with these clauses is unlawful. Employers typically include these clauses in severance agreements either to restrict an employee from discussing the severance terms with coworkers or to restrict the employee from publishing false or defamatory comments about the employer following the employee’s departure from the company.  The Board reasoned that these two clauses, if drafted too broadly, might cast too wide a net and have a “chilling effect” on an employee’s exercise of their protected rights under the National Labor Relations Act (“Act”). This ruling applies to severance agreements offered in union and non-union private-sector workplaces.

The McLaren Macomb Decision

In McLaren Macomb, an employer offered severance agreements to employees laid off during the COVID-19 pandemic.  In order to receive the severance payments, the former employees were required to keep the terms of the agreement confidential and to refrain from making statements about the employer that would disparage it or harm the image of the employer or “its parent company or affiliated entities and their officers, directors, employees, agents or representatives.”  The NLRB held that the Act requires a review of the specific language of these provisions to determine if the language interferes with employees’ exercise of rights under the Act, such as discouraging existing employees from obtaining assistance from former employees subject to confidentiality provisions to address workplace conditions. In its decision, the Board ruled that:

Where an agreement unlawfully conditions receipt of severance benefits on the forfeiture of statutory rights, the mere proffer of the agreement itself violates the Act because it has a reasonable tendency to interfere with or restrain the prospective exercise of Section 7 rights, both by the separating employee and those who remain employed.

Consequently, the Board found that the severance agreement terms, specifically the broad confidentiality and non-disparagement provisions, precluded the exercise of the employees’ section 7 rights and therefore violated the Act.

McLaren Macomb overruled two prior NLRB decisions previously issued under the Trump administration. In Baylor University Medical Center, 369 NLRB No. 43 (2020) and IGT d/b/a International Game Technology, 370 NLRB No. 50 (2020), the Board ruled that these confidentiality and non-disparagement provisions are not per se unlawful in severance agreements.  Rather, the Board reviewed the circumstances under which the severance agreement had been presented to the employee to determine whether the confidentiality and non-disparagement provisions could withstand scrutiny under the Act.  In Baylor, the Board held that severance agreements containing these provisions are unlawful when an employer has engaged in conduct in violation of the Act, or when an employer has committed a coercive or discriminatory labor practice, and then seeks to obtain the silence of employees by way of these two provisions. The Board in Baylor also reviewed the employer’s animus towards the exercising Section 7 rights when determining the legality of a severance agreement at issue. The Board took a similar approach in IGT shortly after issuing the Baylor decision.

Guidance Published by the Board’s General Counsel

Naturally, this decision has been a cause for concern for employers and has raised questions. In response, the Board’s General Counsel (“GC”) issued a memorandum to NLRB Regions on March 22, 2023, with guidance. Major takeaways from this guidance include the following:

  • Severance agreements that only seek to waive an employee’s right to pursue employment claims arising up to and including the effective date of the agreement continue to be acceptable.
  • The McLaren decision has retroactive application. The guidance clarifies that the unlawful proffer of a severance agreement with one of these overly broad clauses will be subject to a six (6) month statute of limitation in accordance with the Act.  However, an employer’s efforts to maintain or enforce a severance agreement with one of these unlawful clauses may be considered a “continuing” unfair labor practice (“ULP”) and not subject to the six (6) month statute of limitations.   In other words, a former employee who was issued a severance agreement with one of these unlawful provisions could, in theory, have an ongoing claim even though the agreement was issued to the employee more than six (6) months ago.
  • The McLaren decision may provide protections for supervisors to the extent that the supervisor was issued a severance agreement that interferes with the supervisor’s right to participate in a Board investigation.
  • That employers could consider proactively notifying former employees with signed severance agreements that any potentially unlawful provisions are null and void. However, this step requires a careful legal review of the provisions in the particular severance agreement and the risks before this irreversible step should be contemplated.

Next Steps for Employers

Following the McLaren Macomb decision, employers must now avoid unlawful restrictions in their severance agreements. The Board’s language in the McLaren Macomb decision mentions the following concerns explicitly:

  • Language that creates a reasonably tendency to interfere, restrain, and coerce employees’ exercise of rights under Act;
  • Overly broad language related to confidentiality, such as preventing the discussion of terms with a former coworker in a similar predicament; and
  • Prohibitions of disparaging remarks which could be detrimental to an employer but beneficial to assist former or future coworkers in resolving a complaint of unlawful conduct.

While the Board’s decision could be challenged in one or more appellate courts at some point in 2023, a final decision – either affirming or overturning the NLRB rule – could take several years or more. For now, employers are encouraged to consult with an employment attorney to review of their existing severance agreements before taking any action and before offering any new agreements to determine if any changes are necessary.

The U.S. Supreme Court recently ruled that an employer’s guaranteed daily rate pay plan for an employee earning more than $200,000 per year did not meet the “salary basis” requirement of the federal Fair Labor Standard Act’s (“FLSA”) executive exemption test, and therefore, the employee was entitled to overtime pay for all hours he worked over 40 in a given 7-day workweek.  This decision highlights the importance for employers of correctly classifying employees under the FLSA’s exemptions from overtime pay.  Helix Energy Solutions Group, Inc. v. Hewitt, __ U.S. __ (Feb. 22, 2023)(“Helix”).  Simply paying an employee a substantial amount of money each year may not satisfy the technical requirements of the FLSA.

The FLSA’s “White Collar” Exemptions

The FLSA applies to most employers.  The law divides employees into two categories: “non-exempt” and “exempt.”  As a general rule, the FLSA requires employers to pay non-exempt employees overtime pay at no less than one-and-one-half times their regular rate of pay for all hours worked over 40 in a given workweek. The FLSA exempts certain employees from overtime pay provided that certain criteria are met. Individuals who satisfy the requirements of the executive, administrative, or professional employee exemptions, often referred to as the “white collar exemptions,” may be properly classified as exempt from receiving overtime.

To qualify for these “white collar exemptions,” U.S. Department of Labor (DOL) regulations require an employer to satisfy a three-part test: (1) the employee must be paid on a “salary basis”; (2) the employee’s minimum salary must be at least $684 per week; and (3) the employee must perform the required duties associated with the exemption. The regulations relax the requirements of the “required duties” test for a “highly compensated employee” (“HCE”) earning at least $107,432 per year but the HCE exemption still requires satisfaction of the salary basis and minimum salary parts of the test.

In the Helix case, the Court focused on the first test, that is, what it means to pay an employee on a “salary-basis.”  Pursuant to the DOL regulations, in order to meet the salary-basis test, an employee must regularly receive a predetermined amount of compensation each pay period on a weekly, or less frequent, basis that is not reduced because of variations in the quality or quantity of the employee’s work.  29 C.F.R. § 541.602(a).

Facts of the Case

The employee in the Supreme Court decision worked on an oil rig.  The employer paid him bi-weekly based on his daily rate times the number of days he worked in the pay period.  The employee frequently worked weeks with hours far in excess of 40, but he was not paid overtime. Under his day-rate compensation scheme, the employee reportedly earned over $200,000 annually. In light of this high rate of pay, the employer classified the employee as exempt from overtime pay assuming he would qualify as a “highly compensated employee” and reasoning that if the overall day-rate compensation were spread out evenly over 52 weeks it would far exceed the applicable minimum salary requirement currently set at $684 per week (previously set at $455 per week).

The employee ultimately sued his employer under the FLSA and asserted a claim for overtime pay. The employer denied any liability and replied that it had lawfully classified the employee as an executive exempt employee. The trial court ruled in favor of the employer and dismissed the claim.  The employee appealed, and the Fifth Circuit Court of Appeals reversed the finding of the lower court and ruled in favor of the employee.  The employer then appealed to the U.S. Supreme Court.

U.S. Supreme Court’s Decision

In siding with the employee, the U.S. Supreme Court underscored that the DOL regulation at Section 602(a) “embodies the standard meaning of the word ‘salary,’” and “demand[s] that an employee receive a fixed amount for a week no matter how many days he has worked[.]”  The Court further reasoned that “nothing in that description fits a daily-rate worker, who by definition is paid for each day he works and no others.” In the case under review, the employee’s compensation was a function of how many days he worked and could only be determined once the employee’s work days had been completed.  In other words, the employee was not paid a predetermined weekly salary as §541.602(a) requires irrespective of the number of days worked.

Key Takeaways for Employers

Paying An Employee A High Compensation May Not Be Sufficient To Avoid The FLSA’s Overtime Pay Requirements.

Despite the fact that the employee earned more than $200,000 per year, he was not paid by the employer in the Helix case on a “salary basis” as required by the FLSA.  Employers who pay their employees on a guaranteed daily rate – however high the rate – must take care to include a weekly guarantee as required by the FLSA regulation’s salary basis test in §541.602(a).

Employers Must Apply The FLSA’s Exemption Criteria Properly To Avoid A Costly Misclassification Claim.

Employers should ensure strict compliance with the requirements of the FLSA and other wage and hour laws and regulations.  Even if the employee and employer agree on a certain pay arrangement, the employer may not contractually circumvent the requirements of the FLSA and remains subject to the FLSA and its requirements at all times.  In Helix, the Supreme Court interpreted the law and regulations strictly. Wage and hour laws have substantial damages provisions, including back wage assessments, liquidated damages, civil penalties and attorneys’ fees and in some circumstances, even criminal penalties.

Employees Must Satisfy All Three Tests (Salary Basis, Minimum Salary, And Required Duties) To Qualify As Overtime Exempt.

This problem in Helix occurred due to the salary-basis part of the test.  Even more frequently employers fail the three-part test because a position does not satisfy the “required duties” test.  For example, an employer may wrongly assume that an office manager satisfies the “administrative” exempt test because the employee is paid in excess of $684 per week on a salary basis.  However, the required duties for the “administrative exempt” test are quite demanding and not as easy to satisfy as many employers assume.  See DOL Fact Sheet #17C addressing Administrative Employees.

Conduct A Wage And Hour Audit

It is a best practice to conduct a wage and hour audit on a regular basis.  At the very least, review the exempt and non-exempt classifications for each position and confirm the company is able to identify what, if any, FLSA exemption applies.

If you have any questions about the FLSA or other wage and hour topics, please reach out to any member of McLane Middleton’s Employment Law Practice Group.

On February 9, 2023, the United States Department of Labor, Wage and Hour Division (“DOL”) published an Opinion Letter addressing the use of leave pursuant to the Family and Medical Leave Act (“FMLA”) by an employee with a serious health condition to create a reduced scheduled workweek for an indefinite time period.  That same day, the DOL also clarified in a Field Assistance Bulletin the application of several specific Fair Labor Standards Act (“FLSA”) provisions and FMLA eligibility requirements to remote-based employees.  Neither of these publications create new law, but each serves as a helpful reminder of some of the more precise requirements of each law.  Below is a summary of the main points of each publication.

Employees may use FMLA to Create an Indefinite Reduction in Work Schedule

The DOL’s Opinion Letter addresses a request by an employee to work no more than eight hours per day due to a serious health condition.   The employer regularly required the employee to work overtime each week, including hours in excess of eight in one day.  The employer assumed the FMLA was inapplicable in this scenario because the employee would still be working at least 40 hours per week, and therefore, presumed no FMLA was being used.  Instead, the employer sought to analyze the employee’s request solely under the Americans with Disabilities Act (“ADA”).

The DOL corrected the employer and advised that the FMLA affords employees “12 work weeks” of leave per year for certain qualifying reasons, such as an employee’s own serious health condition.  Often, this calculation will amount to 480 hours per year of FMLA leave based on a 40-hour work week (12 weeks x 40 hours = 480 hours).  However, if an employee is regularly scheduled to work more than 40 hours per week, then the employee will be entitled to more than 480 hours of FMLA leave time.    In calculating FMLA leave entitlement, the employer must use the number of hours that an employee is mandated to work by the employer, including overtime hours.  For example, an employee who is mandated to work 50 hours per week, will be entitled to 600 hours of FMLA in a 12-month period (12 weeks x 50 hours = 600 hours).

It is important to note that the DOL distinguished voluntary overtime hours from hours that an employee is required to work. Voluntary overtime hours that an employee may occasionally work will not be included in the total FMLA leave allotment.

The DOL then confirmed that an employee who requests to work a reduced schedule may continue to use FMLA until the employee has exhausted their FMLA leave entitlement.  The DOL expressly noted in the Opinion Letter that if an employee never exhausts their FMLA, then the employee “may work the reduced schedule indefinitely.”  This might happen, for example, if the employee uses only 10 hours of FMLA leave time per week, and as noted above, is eligible for 600 hours of FMLA leave in a 12-month period.

The DOL further underscored in the Opinion Letter that an employee may be entitled to protections under the FMLA simultaneously with protections under the ADA.  In other words, an employee with a serious health condition may be entitled to leave under the FMLA, and may also be entitled to a reduced schedule as a workplace accommodation under the ADA.  Per the Opinion Letter, “[i]n the case of an employee who needs leave for a serious health condition under the FMLA and is also a qualified individual with a disability under the ADA, requirements from both laws must be observed and applied in a manner that assures the most beneficial rights and protection to the employee.”

Breaks Less than 20 Minutes are Compensable, Regardless of Whether Employee is working in the Employer’s Worksite or in a Remote Location

The DOL’s Field Assistance Bulletin reminds employers that employee breaks of less than 20 minutes must be included as compensable hours worked, regardless of whether the employee works at the employer’s worksite or at some other location outside of the employer’s control. 29 C.F.R. §785.18.   The DOL noted that, regardless of where the work is performed, employees frequently take short breaks to go to the restroom, get a cup of coffee or stretch their legs.  “By their very nature, such short breaks primarily benefit the employer by reducing employee fatigue and helping employees maintain focus and be more productive at work.” Breaks that are longer than 20 minutes may be excluded from compensable hours worked provided the employee is completely relieved from work and is able to effectively use the time for the employee’s own purposes.

Nursing Employees Working Outside the Workplace are Also Entitled to Lactation Breaks and Privacy

The DOL Bulletin also reminds employers of their obligation under the FLSA to provide a reasonable break time and private space for employees who are working in a remote location for expressing breast milk. 29 U.S.C. §218d(a).  Employees must have a place to express breast milk, which means that a remote employee is free from observation by any employer-provided or required video system, including a computer camera, security camera or web conferencing platform.  These private spaces must be provided in any working areas, including when an employee is working off-site at a client location.  Break times for nursing mothers can be unpaid as long as the employee is completely relieved from duty.  However, if the employer provides compensated breaks for other purposes, an employee who uses that break time to express milk must be compensated for the break.

FMLA Eligibility for Remote-Based Employees

Lastly, the DOL’s Bulletin addresses the meaning of “worksite” for FMLA eligibility purposes when employees work remotely.  To be eligible for FMLA leave, an employee must work at a location where the employer employs at least 50 employees within a 75 mile radius.  When an employee works from home, the employee’s personal residence is not a worksite per the FMLA regulations.  29 C.F.R. §825.111(a)(2).  Instead, the FMLA regulations provide that the employee’s worksite for FMLA eligibility purposes is the office to which the employee reports or from which the employee’s assignments are generated.  29 C.F.R. §825.111(a).  Therefore, if there are 50 employees employed within 75 miles of the location to which the employee reports or from which the employee’s assignments are generated, then the employee will satisfy this particular FMLA-eligibility requirement.  The count of employees “within 75 miles of a worksite” includes employees who telework and report to or receive assignments from that worksite.

Please do not hesitate to contact any member of McLane’s Employment Law Practice Group with questions regarding either of the DOL’s recently issued publications.

There is a bipartisan bill in the New Hampshire Senate that would establish privacy rights for consumers in the state and privacy requirements for businesses and other organizations. On the latest installment of New Hampshire Business, host Fred Kocher is joined by Cameron Shilling, Chair of the Cyber Security Practice Group at McLane Middleton, to break down this proposed bill and the impact it could have on your privacy.

Click here to watch

On January 5, 2023, the Federal Trade Commission (“FTC”) issued a Notice of Proposed Rulemaking (“NPRM”) to prohibit employers from entering into post-employment non-compete agreements with workers. The proposed rule, if adopted, would essentially ban non-compete agreements nationwide, with very limited exceptions.  The FTC will soon publish the NPRM in the Federal Register, triggering a 60-day public comment period.‎  Here are answers to some of the key questions employers may have about the proposed rule.

1. What is the proposed rule?

The proposed rule would provide that it is an “unfair method of competition,” and therefore a violation of the FTC Act, “for an employer to enter into or attempt to enter into a non-compete clause with a worker; maintain with a worker a non-compete clause; or, under certain circumstances, represent to a worker that the worker is subject to a non-compete clause.”

In sum, pursuant to the proposed rule, employers would be: (i) prevented from entering into non-compete agreements with workers; (ii) required to issue a rescission of existing non-compete agreements with current and former employees; and (iii) required to provide current and former workers with notice that any worker’s non-compete clause is no longer in effect and may not be enforced against the worker.

2. How does the Proposed Rule Define a “Non-Compete” Clause?

The proposed rule defines a “non-compete clause” as “a contractual term between an employer and a worker that prevents the worker from seeking or accepting employment with a person, or operating a business, after the conclusion of the worker’s employment with the employer.”  Under the proposed rule, a “non-compete” clause includes not only traditional clauses that prohibit post-employment competition, but also clauses that effectively “function” like non-compete clauses.  The FTC provides two specific examples of “de-facto” non-compete agreements.  First, a nondisclosure agreement might “function” like a non-compete agreement if it “is written so broadly that it effectively precludes the worker from working in the same field after the conclusion of the worker’s employment with the employer.”  Second, a contractual term between an employer and a worker might “function” as a non-compete agreement if it requires the worker to pay the employer or a third-party entity for training costs upon the worker’s termination from employment within a specified time period, and the required payment is not reasonably related to the costs the employer incurred for training the worker.

3. What Employers are Covered?

The proposed rule defines “employer” as “any natural person, partnership, corporation, association, or other legal entity that hires or contracts with a worker to work for the person.”  In effect, this broad definition effectively applies to all employers, unless the employer is subject to an exception from FTC jurisdiction (e.g., certain banks, federal credit unions, common carriers, etc.).

4. What Employees/Workers are Covered?

If enacted, the proposed rule would impact almost all workers, including employees, independent contractors, externs, interns, volunteers, apprentices, and sole proprietors.  Notably, the proposed rule contains no exception for senior executives, highly paid workers or highly skilled workers, although the proposed rule seeks comments on whether non-compete clauses between employers and those categories of employees should be subject to a different standard than non-compete agreements between employers and other categories of workers.

5. How does this Proposed Federal Rule Interact with State Laws on Non-competes?

As drafted, the proposed rule would supersede and preempt any inconsistent state statute, regulation, order or interpretation, except that, if any state law provides greater protection to workers than afforded under the proposed rule, then the state law would continue to apply.

(The proposed rule offers a detailed overview of the current status of state law on non-compete agreements at pages 49–56).

6. Are there any Exceptions to the Proposed Rule?

The proposed rule would include a limited exception for non-compete clauses between the seller and buyer of a business so long as the party restricted is an owner, member or partner holding at least 25% ownership interest in the business.

7. Would the Proposed Rule Apply to Non-Compete Clauses Executed Before the Rule Becomes Effective?

Yes.  While the proposed rule prohibits future use of non-compete clauses, it also prohibits employers from maintaining existing non-compete clauses.  It further requires employers to rescind all current non-compete agreements that fall within the scope of the proposed rule.

8. When will the Proposed Rule Become Effective and How Likely is it that the Proposed Rule will be Challenged in Court?

The proposed rule is subject to a 60-day public comment period once it is published in the Federal Register (which, as of the date of this article, has not yet occurred).  Following that, the FTC will consider the comments and decide whether to amend the proposed rule in light of the comments.  There is likely to be a tremendous number of comments.  The US Chamber of Commerce has already voiced its opposition to the proposed rule.  Thereafter, and assuming the FTC eventually publishes a final rule, it will be effective 60 days later, and employers would be required to come into compliance with the rule within 180 days after the publication of the final rule.  No doubt, the final rule would be subject to legal challenges in court.

9. Where Does the FTC Claim Its Authority to Issue this Rule?

 The FTC cites to Section 5 of the FTC Act which declares “unfair methods of competition” to be unlawful and further directs the FTC to “prevent persons, partnerships, or corporations . . . from using unfair methods of competition in or affecting commerce.”  Within the FTC Act, it also directs the FTC to make rules and regulations to fulfill the purposes of the Act.

10. What should Employers do Now?

For now, employers and businesses with employees, contractors, and others who are subject to non-compete agreements or clauses need to be mindful that the legal landscape may be changing soon with respect to these legal documents.  As the FTC noted in its proposed rule, many states have enacted substantial restrictions on businesses with respect to non-compete agreements in the past 10 years alone, and courts continue to look with disfavor on these agreements as an impermissible restraint of trade on competition.  Now is a good time to take a close look both at existing non-compete clauses and other contractual provisions that may be deemed to be a non-compete provision under a final FTC rule, including non-disclosure, non-solicitation, and provisions requiring employees to reimburse employers for certain training expenses, and assess if modifications are in order, and/or how the business will implement the rule.  At the very least, employers may wish to review the restrictive covenants they have in place with employees, and mark sure they are narrowly tailored as to:  (i) duration and geography, (ii) the activities the business seeks to prohibit post-employment; and (iv) the employees it requests to sign the covenants.


The employee interview process is a critical component of building and shaping school culture.  Not only is it a chance to learn more about candidates to your school and to determine their fit for a particular role, but it is also an opportunity to introduce your school, including its mission and vision, to the candidate.  The goal of the process is to find the right match between a candidate and a school; hiring the right employee will help fill a critical position while also helping to ensure a long-term, collaborative relationship between that employee and the school.  Similarly, schools should endeavor to avoid legal claims that could result from inappropriate, or even illegal, questions asked during an interview.

To best establish a lawful, engaging, and effective hiring process, schools should consider incorporating a number of straightforward tips and should be cautious of asking interview questions that could create legal exposure to the school.  This article addresses both areas in turn below.

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To kick off the New Year, employers with 11 or more employees working in Maine will need to review their policy related to the handling of accrued yet unused paid vacation at the end of employment.

Maine passed an amendment to Labor Law §626 requiring unused vacation time accrued on and after January 1, 2023, to be paid to employee at the end of employment. Final wages, now including unused, accrued vacation, must be paid to terminated employees no later than the next established payday.

Exceptions in the vacation payout apply to employers with 10 or fewer employees, public employers, and employers with a collective bargaining agreement (CBA) already addressing the payment of vacation pay at termination.

Employers must continue to comply with the requirements around allowable deductions at the end of employment, such as loans or advances against future earnings or wages.

Employers found in violation of this law are liable for the amount of unpaid wages and vacation pay as well as a reasonable rate of interest, liquidated damages equal to twice the amount of those unpaid wages and vacation pay, and the costs of suit, including a reasonable attorney’s fee.

The New Year is a good time to contact your employment attorney for a review of your policies and compliance, particularly in light of recent developments.

Amy Cann is a licensed attorney in Maine and New Hampshire and a member of McLane Middleton’s Employment Law practice group. She can be reached at, or by calling (603) 334-6913.


On October 20, 2022, the Equal Employment Opportunity Commission (EEOC) published a new poster entitled “Know Your Rights.”  This new poster replaces the previous “Equal Employment Opportunity Is the Law” poster.  All employers subject to federal EEO laws must display the “Know Your Rights” poster on their premises in a conspicuous place.  The EEOC encourages employers to post it online as well.  An exclusively digital posting of “Know Your Rights” is permissible, but only if the employer does not have a physical location or its employees work remotely and do not come into the office regularly.

The primary update on the new poster is the use of more straightforward language and formatting, designed to easily inform employees of their rights and of the avenues available to them to redress grievances.  “Know Your Rights” replaces long paragraphs of text with a series of questions and bullet point answers to simplify the law for employees.  It also provides a QR code that employees can scan for more information and to submit a charge of discrimination.

Additionally, the EEOC incorporated the information from its 2015 supplement of the “EEO Is the Law” poster into “Know Your Rights” to advise employees that sexual orientation and gender identity are protected categories, and that applicants and employees are protected when inquiring about, disclosing, or discussing their compensation or the compensation of other employees and applicants.  Unlike the previous poster, “Know Your Rights” clarifies that union members and union applicants are protected equally with non-union employees.  While the general substantive rights protected under Title VII, the Americans with Disabilities Act, the Equal Pay Act, the Age Discrimination in Employment Act, and the Genetic Information and Nondiscrimination Act have not changed, the EEOC has packaged them in a more employee-friendly way with “Know Your Rights.”

Employers should review the new poster and hang it as soon as possible.  Although the EEOC has not provided a specific deadline for displaying the new poster, it has advised that, “Employers should remove the old poster and display the new one within a reasonable amount of time.”  Failure to comply may result in a fine of $569 for each separate offense.

To compare here are links to the old and new EEOC posters:

Old poster:

New poster:

Published in the New Hampshire Business Review (10/20/22)

In January 2021, during the final days of the Trump Administration, the Department of Labor issued a new rule regarding the classification of employees and independent contractors for purposes of the federal Fair Labor Standards Act.  This rule, viewed by many as being more “employer friendly” than previous DOL policies, applies an “economic reality” test that asks whether “the individual is, as a matter of economic reality, in business for him or herself.”  The test considers five factors, but emphasizes two in particular: the nature and degree of the worker’s control over the work, and the opportunity for profit or loss.  The remaining factors are subsidiary, and are only to be considered if classification is not clear after applying the first two.

Almost immediately, the Biden Administration took steps to delay, and then rescind the Trump era rule.  Earlier this year, a federal court blocked these efforts, and, for now, the 2021 Independent Contractor Rule remains in effect.  All of this back and forth has called into question the standards for determining employee classification questions under the FLSA and has caused significant confusion for employers.

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