Category Archives: Wage & Hour

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Court Ruling Revives Pay Data EEO-1 Reporting Requirements

Employers may need to begin collecting pay and hours data to report on EEO-1 forms, now that a federal district judge revived the controversial requirement put in place during the Obama administration. During that administration, the EEO-1 form was revised to require employers with 100 or more employees to report earnings and hours worked within 12 pay bands, in addition … Continue Reading

New Salary Threshold for Employees Exempt from Overtime

Exempt employees would have to be paid a minimum annual salary of $35,308 in order to be exempt from the overtime and record keeping requirements of the Fair Labor Standards Act, under the Department of Labor’s long-awaited proposed new rule. The proposed new salary threshold represents almost a 50% increase over the current threshold of $23,660 but is substantially less … Continue Reading

Don’t Sell Your Company Short: Properly Classify Sales Employees

While certain sales employees are exempt from minimum wage and overtime requirements under federal and state laws, others are not. Getting it wrong can be a costly mistake, so employers are well advised to ensure their salespeople are properly classified.

The federal Fair Labor Standards Act (FLSA) provides that employees engaged in “outside sales” are exempt from overtime, but those … Continue Reading

A Tip from the Department of Labor: The 80/20 Rule Has Been Rescinded

Employers are no longer barred from taking the tip credit for tipped employees who spend more than 20% of their time doing non-tipped activities, according to a new U.S. Department of Labor opinion letter doing away with the so-called “80/20 rule.” As restaurant and hospitality employers are aware, the tip credit provision in the Fair Labor Standards Act permits an … Continue Reading

Restaurant Industry Takes On Tip Credit “80/20 Rule”

A restaurant advocacy group has sued the Department of Labor challenging its “80/20 Rule,” which limits the use of a tip credit wage where workers spend more than 20% of their time doing work not directly related to tip-generating activities.

The Restaurant Law Center, a public policy affiliate of the National Restaurant Association and the Texas Restaurant Association, has filed … Continue Reading

Congress and the Trump Administration Cannonballs into the Tip Pool

Buried in the 2,232 page omnibus budget bill recently signed by President Trump was an important change regarding the use of tip pools. Employers who do not take a tip credit are not required to police their employees to determine if their tip pool includes “back of the house” employees, which would have previously been unlawful. However,  an employer may … Continue Reading

DOL Again Offers Opinion Letters to Employers

Employers will once again have another source of guidance on wage and hour issues from the U. S. Department of Labor, which last month reinstated the practice of issuing opinion letters. The DOL stopped issuing opinion letters during the Obama administration, and instead switched to a practice of offering Administrator’s Interpretations (AI), which have broader applicability. Employers, who can rely … Continue Reading

The Nation’s Employers Just Got PAID

Employers who would like to work with the Department of Labor to correct potential wage and hour violations before they get sued may get their wish: the DOL has launched a Payroll Audit Independent Determination (PAID) program. The agency has invited all employers covered by the Fair Labor Standards Act to consider participating in this six-month pilot program. However, … Continue Reading

Supreme Court Expands Interpretation of Overtime Exemption

Employers may have a bit more flexibility in determining which employees are exempt from overtime following a U.S. Supreme Court ruling issued this week that specifically rejected the decades-old principle that exemptions under the Fair Labor Standards Act (FLSA) should be “narrowly construed.” In a 5-4 decision, the Supreme Court ruled in Encino Motor Cars, LLC v. Navarro that an … Continue Reading

Just A Tip: DOL One Step Closer To Rescinding Tip Pooling Regulation

Good news for restaurant employers: the regulation that says tips belong to the employee – regardless of whether the employer takes the tip credit or pays the full minimum wage — may soon be history. Last week, the Department of Labor took another step toward rescinding the 2011 regulation by submitting a proposed rule to the Office of Management and … Continue Reading

Disasters and the Workforce: Navigating Stormy Waters

Thousands of Florida coastal residents were ordered to evacuate last week in anticipation of Hurricane Irma, even as their employers remained open. A pizza restaurant manager made headlines when he threatened action against employees who chose to miss shifts to evacuate. Other employers instructed employees not to report and planned to close their offices part of this week. What are … Continue Reading

Predictive Scheduling and the Fight for a “Fair Workweek”: What Employers Need to Know

Retailers and fast food companies in particular should be aware of the growing push for “fair workweek” legislation at the city, state, and federal levels. In just the past few years, over a dozen states and cities have considered enacting such laws, which are designed to ensure that employees are given consistent, predictable schedules. (They have therefore also been termed … Continue Reading

DOL Drops New Salary Regulation

The Department of Labor is abandoning the new salary regulation that set a  $47,476 threshold salary for employees to be exempt from overtime and intends to go back to the drawing board, based on a brief filed by the DOL on June 30, 2017.

The regulation, which more than doubled the current salary threshold, would have made an estimated 4 … Continue Reading

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

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 … Continue Reading

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

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 Continue Reading

New, Even Broader, Joint Employer Test Adopted

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 … Continue Reading

State and Local Governments: Battling for Control of Workplace Laws

While local governments are increasingly seeking to regulate the workplace, many states are taking aggressive action to counter these efforts. Over the past several years, more than 20 states have enacted preemption laws which prevent such localities from increasing the minimum wage, expanding anti-discrimination protections, requiring employers to provide paid sick leave, and regulating employee meal breaks and rest periods. … Continue Reading

States May Step Into Void Created by Demise of DOL’s Overtime Rule

Since the Department of Labor announced the new overtime rule last May, we have been closely following its rocky implementation in a series of posts. Presently, the rule – which would render an estimated 4 million workers eligible for overtime by effectively doubling the salary threshold for exempt employees to $47,476 – remains stayed by a federal court in … Continue Reading

Employer Exposure Increases: Emotional Distress Damages in FLSA Cases

The number of federal courts allowing plaintiffs to recover emotional distress damages in Fair Labor Standards Act (FLSA) retaliation cases is expanding, with the Fifth Circuit Court of Appeals last month joining two other circuits that have permitted such damages. The case Pineda v. JTCH Apartments, L.L.C. (5th Circuit December 19, 2016), involved maintenance employee Santiago Pineda, who lived … Continue Reading

Minimum Wages Climb

Workers will now receive higher minimum wages mandated by state law in 19 states, effective this month. Florida’s minimum wage increased to $8.10 an hour from $8.05 an hour, effective January 1. Tipped employees in Florida are now entitled to receive a minimum of $5.08 an hour. Workers in Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Hawaii, Maine, Massachusetts, Michigan, Missouri, … Continue Reading

The New Salary Regulations: The Saga Continues

While employers took solace from the Nov. 22 nationwide preliminary injunction which blocked implementation of a controversial rule increasing the salary threshold for employees to be exempt from overtime, the battle is not over. The Department of Labor filed its notice of appeal December 1, the same day the new salary regulations were to take effect.… Continue Reading

Employers Can Be Thankful: New Salary Regulation Delayed

Providing employers with a piece of good news, a Texas court has issued a nationwide preliminary injunction that delays the December 1 implementation of the controversial final rule that increased the salary level for exempt employees to $47,476, more than double what it had been. The court found that the 21 states challenging the rule showed both that they were … Continue Reading

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