Recent Blog Posts

  • 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
  • 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
  • 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
  • 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
  • The U.S. Department of Labor (“DOL”) has invited employers and employees to engage in a “national online dialogue” in connection with the expected April 2, 2020 implementation of the Families First Coronavirus Response Act (FFCRA).  The DOL is soliciting comments and questions as it develops compliance assistance materials and outreach strategies related to FFCRA. Input may be offered online at through March 29, 2020, or through Twitter chat hosted by @ePolicyWorks on March 25, 2020 at 2:00 p.m. using the hashtag: #EPWChat. Employers may... More
  • As the number of U.S. states reporting cases of COVID-19 coronavirus increases, many employers are imposing mandatory work from home (“WFH”) policies to mitigate risk of contamination and ensure business continuity.  Some employers are requiring employees who have travelled to or received visitors from mainland China (or other areas with high infection rates) and those with fever or other flu-like symptoms to remain at home for 14 days, while others are instructing half or more, up to their entire workforce,... More
  • 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
  • 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.) Jurisdiction Current Minimum Wage New Minimum Wage Alaska $9.89 $10.19 Albuquerque NM (No Benefits) $9.20 $9.35 Albuquerque NM (Benefits) $8.20 $8.35 Arizona $11.00 $12.00 Arkansas $9.25 $10.00 Belmont CA $13.50 $15.00 California (≥ 26 employees) $12.00 $13.00 California (≤25 employees) $11.00 $12.00 Colorado $11.10 $12.00 Cupertino CA $15.00 $15.35 Daly City CA $12.00 $13.75 El Cerrito CA $15.00 $15.37 Flagstaff AZ $12.00 $13.00 Florida $8.46 $8.56 Illinois $8.25 $9.25 Las Cruces NM $10.10 $10.25 Los Altos CA $15.00 $15.40 Maine $11.00 $12.00 Maryland (≥ 15 employees) $10.10 $11.00 Maryland (≤ 14 employees) $10.10 $11.00 Massachusetts $12.00 $12.75 Menlo... More
  • 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
  • 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