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
Margaret (Peg) O'Brien
United States Department of Labor Issues guidance on the FMLA and FLSA
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,…
FTC Proposes Rule that Would Ban Almost All Non-Compete Agreements Across the United States
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…
Employee Reductions in Force, Furloughs and Other Cost-Savings Measures
With the end of the 2022 second quarter and inflation at a record high in more than four decades, some employers may be forced to take measures to reduce overall operational expenses. Reducing payroll costs is one of the cost-savings measures available to employers in these circumstances. Unfortunately, however, this often results in the loss of employment for employees by way of a reduction in force, or a “RIF.” If a company must move forward with such a process, it must be carefully planned and executed in order to minimize the risk of employment law claims. Below is an overview of factors business owners and human resources professionals should consider when implementing reductions in staff, schedules or compensation.
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Massachusetts Employers Beware! Treble Damages Are Available When Employers Are Even One Day Late with Final Wage Payment to Employee
The Massachusetts Wage Act, G.L. c. 149, §148 (the “Wage Act”) requires employers to pay employees discharged from employment all wages owed on the date of discharge. Employees who resign from their employment must be paid all wages on the next regular payday following the end of their employment. This requirement to pay all wages owed to an employee upon separation of employment includes an obligation to pay all regular wages, as well as an obligation to pay the employee for any accrued, unused vacation and certain commission payments. Failure to comply with the Wage Act’s strict time deadlines will result in mandatory awards against the employer of treble damages and attorneys’ fees. Certain officers and agents having management of the company may also face individual liability for violations.
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Congress Ends Mandatory Arbitration of Sexual Assault and Sexual Harassment Claims
Earlier this month, Congress passed a bill that will effectively end mandatory arbitration in workplace sexual assault and harassment cases, providing employees with a choice of proceeding with their claims in either court or via arbitration. The legislation, Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“Act”) was passed by a bi-partisan majority in the House and Senate and is expected to be signed into law by President Biden. This law is significant as there are an estimated 60,000,000 workers in the United States who are subject to arbitration clauses, many of whom do not even realize it.
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Sixth Circuit Dissolves Stay of OSHA ETS; OSHA Immediately Posts New Compliance Deadlines
On Friday, December 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay of the Occupation Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS), which requires employers with 100 or more employees to adopt a policy either (a) mandating the COVID-19 vaccine for all employees or (b) mandating employees to show proof of vaccination status or submit to weekly testing. Within hours, the decision was appealed to the United States Supreme Court. That same night, OSHA issued a statement advising employers that, now that the stay has been lifted, it will allow a brief extension of the deadlines established in the initial ETS. Covered employers must now comply with the provisions of the ETS by January 10, 2022. If an employer opts to permit employees to undergo weekly testing in lieu of vaccination, then testing of unvaccinated employees must begin on or before February 9, 2022.
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Year End Bonuses and The Fair Labor Standards Act
As we enter the winter holiday season, many employers begin to contemplate paying year-end bonuses to employees. It is a nice gesture of appreciation for work performed throughout the year and welcomed by employees. However, the payment of bonuses continues to be an area where many employers fail to comply with the Fair Labor Standards Act (“FLSA”). At a recent employment law webinar, the Regional Director for the Wage and Hour Division of the US Department of Labor underscored the ongoing compliance problem with employers failing to calculate the correct overtime rate. The typical problem occurs in the calculation of the “regular rate of pay” for overtime hours worked.
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Enforcement of Federal Contractor Vaccine Mandate Halted Nationwide
On December 7, 2021, the United States District Court for the Southern District of Georgia stayed the federal contractor vaccine mandate issued by the White House via Executive Order 14042 on September 9, 2021. This Court Order, which applies nationwide, enjoins the federal government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.” Previously, on November 30, 2021, a federal court in Kentucky enjoined the government from enforcing the mandate in Tennessee, Ohio and Kentucky only. The Georgia Court expanded the reach of the order nationwide because one of the plaintiffs in the Georgia litigation, the Associated Builders and Contractors’ trade association, has members nationwide with contacts and subcontracts in every state. Therefore, the Court concluded that “limiting the relief to only those [contracts] before the Court would prove unwieldy and would only cause more confusion.”
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Fifth Circuit Blocks OSHA’s Emergency Temporary Standard for Employers with 100+ Employees – Stay Tuned for More Court Rulings
On November 12, 2021, the Fifth Court of Appeals stayed the enforcement of the OSHA Emergency Temporary Standard (ETS) requiring employers with 100+ employees to adopt a policy mandating employees to show proof that they have been fully vaccinated or submit to weekly testing starting in January 2022.
The Order found that the OSHA ETS is “fatally flawed” in that it is both “overinclusive,” since it applies to all industries based on size, without any analysis of the specific risks applicable in each industry, and “underinclusive,” since it only applies to employers with 100+ employees, and does not attempt to protect employees who work for small employers. The Court further found that “the mere specter of the [OSHA] Mandate has contributed to untold economic upheaval in recent months” and that in enacting this ETS, OSHA had exceeded its powers and violated “the constitutional structure that safeguards our collective liberty.”…
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