DOL: “Joint Employer” and “Independent Contractor” Guidance Out and Wage and Hour Opinion Letters In

Posted in Employment & Consulting Contracts, Employment Litigation, Wage & Hour

On the heels of withdrawing published interpretations of the concepts of “joint employer” and “independent contractor,” the Secretary of Labor announced yesterday that it will reinstate the issuance of opinion letters. Opinion letters are official, written opinions by the Wage and Hour Division that explain how a law applies to specific sets of facts. In 2010, the Obama administration discontinued the issuance of opinion letters and replaced them with Administrator Interpretations, which provided only informal guidance. The change back to opinion letters will be welcomed by employers who may rely on an opinion letter to establish a good-faith defense in wage and hour claims. Additionally, the agency created a website where the public can search to see if existing opinion letters already answer their questions, or alternatively, request an opinion letter. Continue Reading

R-E-S-P-E-C-T in Your Workplace

Posted in Employment Discrimination Harassment & Retaliation

Are racial issues, religious differences, and gender norms creating tension in your workplace? Are the caustic exchanges so evident in news coverage today starting to crop up in the office? Are employees complaining of discriminatory treatment on social media? While it may feel like stepping into a hornet’s nest, employers cannot sit silently by and hope for the best. Employers can and should get ahead of these issues now. Continue Reading

Finally in Play: A Refresher on the Fiduciary Rule for Plan Sponsors

Posted in Employee Benefits

On the heels of Labor Secretary Alexander Acosta’s announcement that the Department of Labor’s oft-delayed “Fiduciary Rule” would finally take effect on June 9th, Congressmen introduced new legislation on June 8th to overturn it. The new bill’s sponsors, House Representatives Phil Roe (R-TN) and Peter Roskam (R-IL), and other opponents contend that the Fiduciary Rule is flawed and will make it harder for low- and middle-income families to save for retirement, while proponents argue that it will strengthen retirement planning by requiring financial advisors to act in their clients’ best interests.  Given the back and forth, plan sponsors may still be unsure about how the Fiduciary Rule’s ongoing implementation lines up with existing fiduciary requirements and what steps, if any, they should be taking to prepare. This article will summarize what the Fiduciary Rule is, why it was delayed, and how it affects plan sponsors. Continue Reading

EB-5 Visa Program: All That Glitters Is Not Gold

Posted in Immigration Planning & Compliance

Concerns over the EB-5 “Gold” visa have been revived since Senior White House advisor Jared Kushner’s sister pitched the prospect of EB-5 immigration visas to Chinese investors. While the program may appear an easy path to permanent residency, any business banking on this program should fully understand the risks. Continue Reading

Steps for Solving the Wage Deduction Dilemma

Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention

Figuring out what deductions from an employee’s wages are permitted and prohibited under the law is a quandary. May an employer deduct an employee’s wages for personal charges on the company’s credit card? What about the cost to replace company property the employee lost or damaged? And what if an employee resigns and never returns the company-issued laptop or other tools of the trade used by the employee? Advances or loans to the employee? The scenarios are seemingly endless. However, by taking the following steps, employers may find the answers to their deduction dilemmas. Continue Reading

Bill Permitting “Comp Time” in Lieu of Overtime Heads to Senate

Posted in Wage & Hour

A Republican proposal to allow private employers to offer employees compensatory time off in lieu of paying overtime at timeandahalf their regular rate has been approved by the U.S. House of Representatives and next moves to the Senate for consideration. The “Working Families Flexibility Act of 2017’’ (H.R. 1180) would amend the Fair Labor Standards Act (FLSA) to enable nonunionized private-sector employers to offer non-exempt employees the opportunity to voluntarily agree, in writing, to accrue 1.5 hours of comp time for each overtime hour worked, with a cap of 160 hours. Currently, the FLSA requires that covered private sector employers pay overtime for hours over 40 each week, unless employees are exempt under one of the FLSA’s recognized exemptions. The FLSA already permits public sector employers to offer comp time in lieu of overtime. Continue Reading

Whistleblowing Increases with Increasing Visibility

Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Employment Litigation, Whistleblower & Retaliation Claims

While the current administration is taking steps to dismantle what it views as excessive regulation, one thing is clear: whistleblowers continue to blow the whistle, and ever more visibly so. Continue Reading

Employees in Educational Programs: Expanded Options for Suits

Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation

Employers who are operating educational programs or activities – whether inside or outside educational institutions – take note: a recent court decision adds to a split in the federal appellate courts by allowing employees more than one avenue of relief for employment discrimination claims.  Continue Reading

New, Even Broader, Joint Employer Test Adopted

Posted in Employment Counseling & Workplace Claims Prevention, Labor Relations, Wage & Hour

Employers may think the concept of joint employer being pushed by the National Labor Relations Board (NLRB) is overly broad, but a recent decision by a federal appellate court in Richmond, Virginia adopts the most expansive definition yet. Last month the federal appellate court pronounced that two entities or individuals should be considered a joint employer of the same worker and therefore, both liable for wage violations under the federal Fair Labor Standards Act (FLSA), unless the two entities are “not completely disassociated” with respect to the terms and conditions of the worker’s employment.   Continue Reading