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- U.S. Department of Labor Proposes New Rule for Distinguishing Independent Contractors from Employees Under the FLSA Continue Reading… On September 22, 2020, the U.S. Department of Labor (“DOL”) released its highly anticipated proposed rule for distinguishing independent contractors from employees under the Fair Labor Standards Act (“FLSA”).
When evaluating independent contractor status under the FLSA, courts have traditionally applied what is known as the “economic realities” test. The test varies slightly from circuit to circuit, and, perhaps, court to court, but courts generally consider the following factors on a non-exclusive basis: (i) the degree of control that the putative employer... More
- Court Invalidates Portion of U.S. DOL’S Business-Friendly Joint Employer Final Rule Continue Reading… On September 8, 2020, a federal district court struck down the U.S. Department of Labor’s (“DOL”) Final Rule on joint employer liability, concluding that the Rule violated the Administrative Procedure Act (“APA”) by impermissibly narrowing the definition of joint employment under the Fair Labor Standards Act (“FLSA”), departing from the DOL’s prior interpretations on joint employment without adequate explanation, and otherwise being arbitrary and capricious. We previously blogged about the details of the Final Rule here. The DOL published the... More
- U.S. Department of Labor Issues Opinion Letters on the Outside Sales, Administrative, and 7(i) Exemptions, as Well as the Status of Third-Party Payments as Wages Continue Reading… While the COVID-19 pandemic remains a challenge to employers nationwide, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) continues to field non-COVID-related wage and hour questions. On June 25, 2020, the WHD issued five new opinion letters addressing the outside sales, administrative, and retail or service establishment exemptions under the Fair Labor Standards Act (“FLSA”), as well as the relationship between third-party payments to workers and the FLSA’s minimum wage requirement. Employers should take note of these useful... More
- Epstein Becker Green Introduces Two New Tools to Assist Employers in Preparing for Federal Wage and Hour Investigations Continue Reading… As employers continue to deal with workplace issues related to COVID-19, you should be aware that the U.S. Department of Labor’s Wage and Hour Division (“WHD”) has indicated that it will be investigating allegations of wage and hour violations that have occurred as a result of the rapid workforce changes undertaken by many organizations earlier this year. Unfortunately, as you may know, the WHD rarely announces those investigations in advance and, instead, employers typically learn of them when a letter... More
- Are COVID-19 Temperature Screenings Compensable Time for Non-Exempt Employees? Continue Reading… As states across the country start to reopen their economies after COVID-19 shutdowns, many businesses are likewise preparing to have employees return to work.
However, before reopening, businesses will need to comply with numerous state and local protocols designed to ensure the health and safety of employees and consumers, including social distancing, maximum occupancy and one-way flow.
Even if not required, many employers are instituting employee temperature checks upon arrival at the workplace. While the U.S. Equal Employment Opportunity Commission recently endorsed... More
- The “Tele-Summer Job” Season – 5 Considerations for Employers Continue Reading… With summer rapidly approaching and COVID-19 shelter-in-place orders still in effect, many companies face an important and difficult decision of canceling this year’s summer programs, delaying start dates or conducting programs virtually. This ultimately will be a business decision with no one-size-fits-all answer.
A good first step is to assess whether the influx of new summer workers will help or hinder current operations. Are temporary summer interns a boost to productivity or a drag on experienced employees who may be called... More
- Wondering How to Retain Employees Without Going Bankrupt During the COVID-19 Crisis? Independent Contractor Reclassification Is Not the Answer Continue Reading… Due to the COVID-19 pandemic and the resulting shelter-in-place and related orders, many businesses across America have already shuttered, while others are on the brink of collapse. In these challenging times, businesses are understandably considering any and all potential solutions to keep their employees on payroll while remaining solvent. Some employers have even been considering converting their W-2 employees to 1099 independent contractors. The surface appeal is simple, which is that employers can avoid employment taxes, benefit costs, and overtime... More
- U.S. DOL Renews Its Request to, and Extends the Deadline for, Employers and Employees to Comment on the DOL’s Recent Interpretive Guidance That It Issued in Connection with the Families First Coronavirus Response Act Continue Reading… The U.S. Department of Labor (“DOL”) has renewed its invitation to employers and employees to engage in a “national online dialogue” in connection with the Families First Coronavirus Response Act (FFCRA), which took effect on April 1. The DOL is soliciting comments and questions with respect to its questions and answers, posters, and fact sheets that it has published in connection with the FFCRA.
The DOL has also extended the deadline from March 29 to April 10 for employers and employees... More
- U.S. Department of Labor Issues New Opinion Letters Clarifying Regular Rate Principles Continue Reading… In addition to its recent, exigent responsibility of preparing guidance on the protections and relief offered by the Families First Coronavirus Response Act, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) has issued three new opinion letters addressing the excludability of certain types of payments from the regular rate of pay under the Fair Labor Standards Act (“FLSA”). While these opinion letters do not tread new ground, they are useful reminders of important regular rate principles and merit... More
- Work from Home Policies During COVID-19: Limiting Non-Exempt Employee Compensation for Waiting Time and On-Call Time Continue Reading… Given the number of states that have already ordered the closure of non-essential businesses due to the COVID-19 pandemic, employers fortunate to remain operational are likely dealing with the myriad challenges of a remote workforce.
As we previously wrote here, employers with work-from-home (“WFH”) policies in place need to make sure they are appropriately compensating their workers and are otherwise complying with all applicable federal, state, and local wage and hour laws.
In the WFH context, the related wage and hour concepts... More
