Recent Blog Posts
- U.S. DOL Adopts “Primary Beneficiary” Test to Determine Whether Unpaid Interns Are Employees Continue Reading… In a move allowing increased flexibility for employers and greater opportunity for unpaid interns to gain valuable industry experience, the United States Department of Labor (“DOL”) recently issued Field Assistance Bulletin No. 2018-2, adopting the “primary beneficiary” test used by several federal appellate courts to determine whether unpaid interns at for-profit employers are employees for purposes of the Fair Labor Standards Act. If interns are, indeed, deemed employees, they must be paid minimum wage and overtime, and cannot serve as... More
- Department of Labor Appeals Ruling Striking the 2016 Overtime Rule, Then Obtains Stay Halting Its Appeal Continue Reading… As we have discussed previously, in early September the U.S. Department of Labor (“DOL”) withdrew its appeal of last November’s ruling from the Eastern District of Texas preliminarily enjoining the Department’s 2016 Final Rule that, among other things, more than doubled the minimum salary required to satisfy the Fair Labor Standards Act’s executive, administrative, and professional exemptions from $455 per week ($23,660 per year) to $913 per week ($47,476 per year). The DOL abandoned its appeal in light of the... More
- Sixth Circuit (Mostly) Approves Commission Plan With Recoverable Draw Continue Reading… In many industries, sales are subject to ebbs and flows. Sometimes the fish are biting; sometimes they aren’t.
A common device that employers with commissioned salespeople use to take the edge off of the slow weeks and to ensure compliance with minimum wage and overtime laws is the recoverable draw. Under such a system, an employee who earns below a certain amount in commissions for a given period of time, often a week, receives an advance of as-yet unearned commissions to... More
- Court Green Lights Immediate Appeal of Chipotle Collective Action Decertification Order Continue Reading… As noted in earlier postings, in March of this year, a federal judge in New York handed Chipotle Mexican Grill a significant victory, denying a request by salaried management apprentices alleging misclassification as exempt from overtime to certify claims for class action treatment under the laws of six states, as well as granting Chipotle’s motion to decertify an opt-in class of 516 apprentices under the Fair Labor Standards Act (“FLSA”). The plaintiffs then sought—and in July 2017 the U.S. Court... More
- DOL Withdraws Overtime Rule Appeal Continue Reading… On September 5, 2017, the Department of Labor filed with the Fifth Circuit an unopposed motion asking the court to dismiss its appeal of the nationwide preliminary injunction ruling issued last November by a Judge Amos Mazzant in the Eastern District of Texas. The motion states that DOL’s appeal is moot in light of Judge Mazzant’s entry of final judgment on August 31, 2017. Barring any unusual further developments, we anticipate that the Fifth Circuit will dismiss the appeal promptly.
- Federal Court in Texas Strikes Down 2016 Overtime Exemption Regulations Continue Reading… Since last November, much of the discussion regarding the Obama-era overtime regulations that, among other things, more than doubled the minimum salary threshold for executive, administrative, and professional employees under the Fair Labor Standards Act (“FLSA”) has focused on the Department of Labor’s appeal of the nationwide preliminary injunction barring implementation and enforcement of the rule.
While everyone is awaiting the oral argument before the Fifth Circuit, currently scheduled for October 3, 2017, Judge Amos Mazzant of the Eastern District of Texas... More
- Ninth Circuit Asks California Supreme Court to Advise Whether Time Spent In Bag Checks Is Compensable Under California Law Continue Reading… We have previously written in this space about the United States Supreme Court’s decision in Integrity Staffing Solutions, Inc. v. Busk, holding that time spent awaiting bag checks was not compensable time under the Fair Labor Standards Act (“FLSA”). But is such time compensable under California law, which differs from the FLSA in some regards? The critical difference between the FLSA and California laws is that California law requires that employees be paid for all time when they are “subject... More