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.

Photo: Public Domain
Photo: Public Domain

Typically with an incoming administration there is a waiting period of sorts before changes in pending and certainly existing regulations kick in.  The current administration, however, appears to be working at an accelerated pace toward upending the status quo.  So, it appears time for a quick check-in on where we are and what to expect.

On Inauguration day, White House Chief of Staff Reince Priebus Jan. 20 instructed federal agencies to freeze all pending regulations, a move that seems to include a number of labor and employment initiatives that were in the works under the Obama administration.

This type of freeze is not unusual when a new president takes office.  An action of this nature does not necessarily mean that significant changes are coming, but given candidate Trump’s campaign promise to roll back regulation on business, we can at least predict that the administration will be in no rush to move on the pending matters. Continue Reading Two Weeks Into the Trump Administration: Where are we with Labor and Employment Regulations?