On April 7th, the United States Department of Labor issued detailed guidance and model notices to assist employers in implementing the COBRA premium assistance requirement under Section 9501 of the American Rescue Plan Act of 2021 (the ARP).

The ARP requires employers to provide a 100 percent COBRA premium subsidy – between April 1, 2021 and Sept. 30, 2021 – for employees whose reduction in hours or involuntary termination of employment makes them eligible for COBRA continuation coverage during this period. An employer or plan to whom COBRA premiums are payable, advances the COBRA premium and is then entitled to a tax credit for the amount of the premium assistance provided.


Continue Reading American Rescue Plan Act of 2021 Requires Employers to Pay Employee COBRA Premiums Until September 30, 2021

On January 6, 2021, the Department of Labor (DOL) announced its final rule seeking to make it easier to classify workers as independent contractors.  The distinction is not without difference, as the federal Fair Labor Standards Act (FLSA) and many of its state analogues only protect employees, but do not extend to independent contractors – including many gig economy workers.  However, as made clear by the new rule, merely identifying a worker as an “independent contractor” does not mean the employer is off the hook.

Continue Reading Better Classification for our Economic Reality

Although Congress had the opportunity to extend the requirement that companies with 500 or fewer employees provide paid medical leave and family leave to workers impacted by COVID-19, it did not do so; and those mandates expired on December 31, 2020.  The eleventh hour stimulus package did keep in place, through March 31, 2021, the tax credit to employers who voluntarily continue to provide this paid benefit.

The USDOL has issued some guidance to provide “clarity around some of the novel issues that FFCRA’s expiration raises” according to Wage and Hour Administrator Cheryl Stanton.  As of December 31, 2020, the DOL added two questions and answers (104 and 105) to its very helpful general FFCRA guidance located at  https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.


Continue Reading FFCRA Leave: Gone But Not Forgotten as DOL Issues Guidance Post-Stimulus

The Department of Labor (DOL) has proposed a rule that seeks to make it easier to classify workers as independent contractors.  The distinction is not without difference, as the federal Fair Labor Standards Act (FLSA) and many of its state analogues only protect employees, but do not extend to independent contractors – including many gig economy workers.  However, as made clear by the proposed rule, merely identifying a worker as an “independent contractor” does not mean the employer is off the hook.

Continue Reading Better Classification for our Economic Reality

The U.S. Department of Labor (DOL) has launched a national online dialogue to obtain feedback on “Opening America’s Workplaces Again.” Businesses and workers are invited to participate in this new public forum and to provide comments through May 7, 2020. Specifically, the DOL seeks ideas and recommendations on what challenges employers and workers may face with a return to work and what companies and employees can best do to reopen workplaces safely. The information obtained will be used to guide the DOL in developing compliance assistance materials for return to work and to assist lawmakers in drafting policy on reopening businesses.


Continue Reading DOL Invites Feedback On Opening America’s Workplaces Again

Calculation of “regular rate” of pay is something which has long given employers fits, and the US Department of Labor (“DOL”) has taken a step which it hopes will clarify the definition, something which hasn’t been done in 50 years.  On December 12, 2019 the Final Rule interpreting “regular rate” was announced.

Under the Fair Labor Standards Act (“FLSA”) employers are required to pay non-exempt workers time and one half the “regular rate” for every hour worked over 40.  According to the regulations, the “regular rate” includes all remuneration paid to the employee except for certain payments specifically excluded under the FLSA.  This would include wages paid by the hour, by salary, or by piecework and most bonuses, commissions, incentive pay, shift differentials, and on-call pay. Excluded payments, by definition, are premium payments for certain work (e.g. Sunday premium pay), discretionary bonuses, holiday gifts, and vacation pay.


Continue Reading USDOL Issues Guidance on “Regular Rate” of Pay

In an opinion letter dated April 29, 2019, the U.S. Department of Labor (DOL) explained that some service providers working for a virtual marketplace company (VMC) are independent contractors under the Fair Labor Standards Act (FLSA).   This opinion letter identifies the test the DOL is expected to use when considering the classification of workers

Last week, the U.S. Department of Labor’s Wage and Hour Division issued an Opinion Letter in which it stated that an employer may not delay the designation of leave qualifying under the Family and Medical Leave Act, even if the affected employee would prefer not to take FMLA leave, and employers may not designate more than 12 weeks of leave as FMLA leave.
Continue Reading Department Of Labor Says That FMLA Leave Cannot Be Deferred

Photo: OTA Photos via Flickr (CC by SA 2.0)

Yesterday, the U.S. Department of Labor released its long-awaited updated overtime rule proposal.  Under the proposed rule, the minimum salary level at which an employee can be exempted from federal overtime and minimum wage requirements (assuming other criteria are met) would increase from $455 per week ($23,660 annually) to $679 per week ($35,308 annually).  If enacted, more than a million more workers would become eligible for overtime under the proposed rule.


Continue Reading Department of Labor Releases Updated Overtime Proposed Rule Raising the Salary Level for Overtime Exemption

On February 1, 2019 the Keene Sentinel reported that a Massachusetts construction company had been hit with more than $64,000 in fines after an audit conducted by the New Hampshire Department of Labor. Although the bulk of the fines were related to the misclassification of employees as independent contractors, there were also a number of recordkeeping violations found.

The Keene Sentinel article devotes significant attention to the problems of trying to classify individuals as independent contractors under NH state law, a very difficult burden to meet. The result of the audit and the fines imposed on the business, however, showcase how difficult it is for businesses who typically do not operate in a state to establish a workforce there and be in compliance with state laws.


Continue Reading Trials of Massachusetts Company Building Keene Hotel Signals Warning to Businesses with Multi-State Workforces