Recent Blog Posts
- The New Year Brings New Guidance on FLSA Issues from the U.S. Department of Labor Continue Reading… In its first installment of opinions letters in 2020, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) addressed two issues under the Fair Labor Standards Act (“FLSA”): (i) the salary basis requirements in the context of per-project compensation arrangements and (ii) calculation of overtime pay for employees who receive nondiscretionary lump-sum bonus payments earned over time and not tied to a specific period. (A third letter, FMLA2020-1-A, considered FMLA requirements vis-à-vis public employees.) While neither of these FLSA... More
- New State and Local Minimum Wage Increases Have Taken Effect Throughout the Country Continue Reading… With the start of the New Year, new state and local minimum wage increases have gone into effect for non-exempt employees across the country.
The chart below summarizes the new minimum wage rates that went into effect on January 1, 2020, unless otherwise indicated. (More will take effect July 1, 2020.)
Current Minimum Wage
New Minimum Wage
Albuquerque NM (No Benefits)
Albuquerque NM (Benefits)
California (≥ 26 employees)
California (≤25 employees)
Daly City CA
El Cerrito CA
Las Cruces NM
Los Altos CA
Maryland (≥ 15 employees)
Maryland (≤ 14 employees)
- Two Recent Efforts, from Different Political Directions, to Adapt the FLSA to the 21st Century Continue Reading… Over the past six months, Congress has made two notable attempts to amend the Fair Labor Standards Act of 1938 (the “FLSA”). In July, U.S. Representative Elise Stefanik (R-NY) introduced The Modern Worker Empowerment Act (“MWEA”) with the stated aim of harmonizing the FLSA’s definition of employee with the common law. And last month, Senator Brian Schatz (D-HI) introduced the Treating Workers with Dignity Act of 2019 (“TWDA”), which would amend the FLSA to require certain compensated breaks.
Modern Worker Empowerment... More
- Second Circuit Approves Offers of Judgment in FLSA Cases Continue Reading… On December 6, 2019, the Second Circuit Court of Appeals held that judicial approval is not required for offers of judgment to settle Fair Labor and Standards Act (“FLSA”) claims made pursuant to Federal Rule of Civil Procedure 68(a). This development may provide employers with a valuable strategic tool for use in FLSA cases, at least in the Second Circuit, allowing the parties to include terms in offers of judgment that the courts might disallow were court approval required.
Generally speaking,... More
- California Court Rules That Mandatory Service Charges May Be Gratuities Continue Reading… Upsetting what many considered settled precedent, a California Court of Appeal has held that a mandatory service charge may qualify as a “gratuity” under California Labor Code Section 351 that must be distributed to the non-managerial employee(s) who provided the service.
In O’Grady v. Merchant Exchange Productions, Inc., No. A148513, plaintiff, a banquet server and bartender, filed a putative class action against their employer for its failure to distribute the entirety of the proceeds of an automatic 21% fee added to... More
- WHD Releases Text of Proposed Revisions to the Fluctuating Workweek Regulations Continue Reading… On August 26, 2019, we wrote of the plan by the U.S. Department of Labor’s Wage and Hour Division (“WHD”) to update the Fair Labor Standard Act (“FLSA”) regulations on calculating overtime pay for salaried non-exempt workers to allow employers to include additional forms of compensation in the so-called “fluctuating workweek” calculations. Under a fluctuating workweek calculation, an employer divides all of an employee’s relevant compensation for a given workweek by the total number of hours the employee worked in... More
- Time Is Money: A Quick Wage-Hour Tip on … Navigating Travel Time Pay Continue Reading… What is considered compensable travel time pursuant to the Fair Labor Standards Act (“FLSA”) is not always clear or intuitive to employers, even for those who usually have a good handle on wage and hour laws. This blog post hopefully will simplify the requirements set forth in the U.S. Department of Labor’s (“DOL”) regulations and interpretive guidance to help clarify when employees must be paid for travel time.
Ordinary Home-to-Work Travel
Likely not a surprise for most employers, employees are not entitled... More
- Latest Department of Labor Opinion Letter Addresses the FLSA’s Retail/Service Establishment Employee Exemption Continue Reading… The U.S. Department of Labor’s Wage and Hour Division (“WHD”) continues to issue guidance at a rapid pace, releasing a new opinion letter regarding the retail or service establishment overtime exemption under the Fair Labor Standards Act (“FLSA”). The letter brings clarity to a recurring issue affecting retailers.
FLSA Section 7(i) Exemption
As background, FLSA Section 7(i) exempts a retail or service establishment employee from the FLSA’s overtime pay requirements if (i) the employee’s regular rate of pay exceeds 1.5 times the federal... More
- Proposed Rule Would Change the FLSA’s Fluctuating Workweek Method of Calculating Overtime Pay Continue Reading… As part of its spring 2019 regulatory agenda, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) will consider a proposed revision to the Fair Labor Standard Act’s (“FLSA”) regulations on calculating overtime pay for workers whose hours fluctuate from week to week.
Generally, non-exempt employees covered by the FLSA must receive overtime pay for hours worked in excess of 40 in a workweek at a rate at least time and one-half their regular rates of pay – the standard... More
- DOL Releases New Opinion Letters on FLSA Section 7(k) and Public Agency Volunteers Continue Reading… The U.S. Department of Labor’s Wage and Hour Division (“WHD”) shows no signs of fatigue as it releases two new opinion letters on the Fair Labor Standards Act (“FLSA”) within the first week of August. These opinion letters address the FLSA’s partial overtime exemption on a “work period basis” and the status of public agency volunteers. As we have previously advised, employers should read the WHD’s opinion letters carefully and consult with experienced counsel with any questions about their practices... More