During the month of September, the Department of Labor will be holding a series of “Listening Sessions” throughout the country in order to hear public comments about planned changes to the overtime rules under the Fair Labor Standards Act.

On this blog, we have followed the long and winding path of the years-long efforts to update the FLSA’s overtime rules (see our posts on the subject here, here, here, here, here, here, here, here, here, and here).  To recap, in 2014, the Obama Administration set out to overhaul the overtime rules, and, after nearly two years, issued a set of final regulations, which were to have gone into effect on December 1, 2016. Among other things, these regulations would have increased the minimum salary threshold for exempt workers from $455 per week to $913.  This change would have dramatically increased the number of workers who would be classified as non-exempt, and therefore eligible to earn overtime pay.  However, after President Trump’s election, and just days before the regulations were to take effect, a federal court issued an injunction halting the changes.  After almost a year of litigation and uncertainty, the Trump Administration finally abandoned the Obama Administration’s regulations and went back to the drawing board and started the entire rulemaking process over from scratch.

Continue Reading The Department of Labor Wants to Hear from Employers about Planned Changes to the Overtime Rules

Back in September, we reported that the Trump Administration had abandoned the appeal of an injunction blocking new overtime rules from going into effect.  That action effectively killed the Obama Administration’s effort to update and expand the overtime rule by raising the “salary level test” for executive, administrative, and professional workers from $455 per week to $913 per week.  At the same time, the Trump Administration signaled that a scaled-down update of the overtime rule was on the way … eventually.

Continue Reading DOL Pushes Release of Proposed Changes to Overtime Rule to January 2019

The U.S. Department of Labor recently initiated a nationwide pilot program referred to as the Payroll Audit Independent Determination (“PAID”) program.  The stated purpose of the program is to facilitate resolution of potential overtime and minimum wage violations under the Fair Labor Standards Act (“FLSA”).  The expectation is that FLSA claims will resolve more expeditiously and without litigation thus improving employer compliance with wage and hour laws and getting back wages to employees more quickly.

Continue Reading Are Businesses Ready to Turn Themselves In to the DOL?

Last week, the Department of Labor issued new guidance on whether interns are “employees” covered by the Fair Labor Standards Act’s minimum wage and overtime provisions.  In the updated guidance, the DOL has adopted the “primary beneficiary test,” first applied by the U.S. Court of Appeals for the Second Circuit in 2015, and used by a growing number of courts in recent years.

Continue Reading DOL Issues New Guidance on Unpaid Internships

This is part 1 of a 2 part series.  To read part 2, click here.

At the end of 2017, the New Hampshire Department of Labor (DOL) published its annual list of “Top 10 New Hampshire Labor Law Violations.”  While the list does not change that much from year to year, it is a good opportunity to review pay and record keeping practices to ensure compliance with NH law.

Continue Reading New Year and New Opportunity to Avoid Top Labor Law Violations! Part 1

A few weeks ago, the Department of Labor filed a brief with the Fifth Circuit Court of Appeals in which it backed away from the $913 per week salary level test set in the 2016 amendments to the FLSA overtime rules.  In that brief, the DOL stated that it would soon publish a request for information seeking public input to be used by the DOL in drafting a new proposed overtime rule.

Continue Reading DOL Issues Request for Information on Changes to Overtime Rules

On June 27, 2017, U.S. Secretary of Labor Alexander Acosta announced that the U.S. Department of Labor (USDOL) will reinstate the issuance of opinion letters.  You might be wondering why this decision is important to businesses.  The answer is two-fold: (1) opinion letters provide interpretation of the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) so that employers understand their rights and responsibilities under the law; and (2) opinion letters may be relied upon as a good faith defense to wage claims arising under the FLSA.

Continue Reading US DOL Reinstates Opinion Letters

The US Department of Labor (“DOL”) announced today that Secretary of Labor Alexander Acosta has withdrawn the DOL’s 2015 and 2016 informal guidance on joint employment and independent contractors.  We previously reported on these issues when the guidance was published under the prior Secretary.  For more information on the guidance please refer to our posts dated January 28, 2016 and September 29, 2015.  The press release cautioned that:

Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law. The department will continue to fully and fairly enforce all laws within its jurisdiction, including the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.

What does this mean for employers? Effectively, not a great deal.  The Fair Labor Standards Act (“FLSA”) and the Internal Revenue Code provide fairly clear guidance on the independent contractor tests, and other federal agencies such as the National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”) have spoken to the issue of joint employment.

More importantly, however, many states, including ALL of the New England states, have very restrictive independent contractor laws.  Caution should continue to prevail when supplementing one’s workforce with contractors or consults.  Similarly, those businesses which utilize temporary workers from staffing companies or share employees with other related companies should continue to assume that those workers will be considered the joint employees of all who direct their performance or benefit from the services.

It is unknown whether the DOL intends to issue any new guidance on either of these topics.