On February 1, 2018, the Office of Federal Contract Compliance Programs (OFCCP) sent 1,000 Corporate Scheduling Announcement Letters (CSALs) to federal contractors informing them that they may be audited for compliance with federal non-discrimination requirements/affirmative action plans.
On January 5, 2018, the Department of Labor did away with its previous six-factor test and announced a new “primary beneficiary” test to determine whether interns and students working for “for-profit” employers are entitled to minimum wages and overtime pay under the Fair Labor Standards Act. Employers are required to pay employees for their work, but in some circumstances, interns may not actually be employees under the FLSA, and therefore, can be unpaid. The DOL stated that the new test “allows increased flexibility to holistically analyze internships on a case-by-case basis.”
The new “primary beneficiary” test looks at whether the intern or the employer is the primary beneficiary of the relationship. Several circuit courts, including the Second and Ninth, have previously favored the “primary beneficiary” test, viewing it as being more up to date and aligned with the underlying purpose of an unpaid internship.
After a Texas federal judge struck down the Department of Labor’s proposed overtime rule, as discussed here, the DOL dropped its appeal of the preliminary injunction the same judge granted in November 2016. As we previously noted, the Fifth Circuit appeal of the injunction, which blocked the Obama-era overtime rule from going into effect, became moot following the district court’s judgment on August 31, 2017.
Notably, however, the Department of Justice (on behalf of the DOL) can still appeal the court’s final judgment entered last week. It is unclear whether the DOL will appeal the ruling to challenge whether the agency has the authority to set any salary test for the exemption analysis. Or whether the DOL will instead propose its own version of a new overtime rule (or keep the current version intact). Employers should therefore keep an eye on any developments. Of course, we will continue to monitor and provide updates of any changes to overtime requirements.
Starting last summer, employers began preparing to comply with the Obama administration’s revisions to the Fair Labor Standards Act (FLSA) regulations for the executive, administrative, and professional overtime exemptions (“white collar” exemptions). If implemented, the revised overtime rule would dramatically expand the number of workers eligible for overtime pay and would impact most U.S. employers. Because of legal challenges to the new rule, however, its validity has been up in the air for nearly a year. And the change from the Obama to Trump administration only created more uncertainty for employers. Right before the Labor Day weekend, a federal court in Texas issued an order invalidating the new overtime rule. Although we expect challenges to the court’s ruling, and the Trump DOL may propose its own revisions, the court’s order provides employers grappling with the proposed changes to the overtime exemptions with some clarity.
To read more, click here.
As Hurricane Harvey strengthens and threatens Texas and the Gulf Coast, it’s a good time for Texas employers to consider potential pay-related issues that can arise from inclement weather. Be it rising floodwaters or hurricanes in the Gulf (and the endless news coverage of the same), here are 5 tips to help your business when employees are absent due to inclement weather. Continue Reading Employee Pay During Inclement Weather: Five Tips to Stay Afloat
The Transportation Security Administration has announced that by 3 AM EDT on March 25, 2017, passengers on flights to the United States from 10 specific airports will be required to check any electronic devices larger than a smartphone. The affected airports are all in North Africa and the Middle East, and include some of the most frequently used airports among international business travelers. As a result, employees who might otherwise plan to work on the plane will be limited to those tasks that can be performed either from their phones or on paper. Employers should communicate these restrictions to employees who travel internationally so they can be better prepared. Continue Reading Travel Warning: TSA Bans Large Electronic Devices on Certain Flights to the US
While no one knows exactly how Donald Trump’s election as President will impact labor and employment laws in the country, it is a safe bet that there will be changes. Because Trump was virtually silent on the campaign trail regarding the specifics of any employment law policies, we are left to speculate on any upcoming changes. We provide a brief overview of our best educated guesses on what changes could be in store given the election results. Given Trump’s position on government enforcement and his pro-business stance, there is an expectation of changes to several employment-related laws. Continue Reading What Trump’s Election Means for Employment Laws
As we’ve blogged about before (see here), the Department of Labor published a Final Rule with an effective date of December 1, 2016, which nearly doubled the minimum salary an employee must earn to qualify for a “white collar exemption.” However, on November 22, 2016, a Texas federal court blocked the enactment of the amendments to the federal “white collar” exemptions for executive, administrative, and professional employees that were set to go into effect this week. Notably, the court did not halt the proposed amendments for the highly compensated employee exemption.
You can read the entire Client Alert, which includes details about the court order and actions for employers, here.
On July 14, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) unveiled its amended proposal to collect summary pay data from U.S. employers with 100 or more employees. Under the proposed amendments, employers who already file an Employer Information Report (EEO-1) will be required to also report pay by gender, race, and ethnicity, across 12 pay bands, by March 31, 2018. Covered employers should start considering now how to adjust their pay, collection, and reporting processes.
To learn more on the proposed regulation’s impact on employers, click here.
There has been no slow down to the National Labor Relations Board’s attention to employer handbook policies that purportedly can discourage “protected concerted activity.” We previously suggested five handbook provisions to update, but the continuous wave of Board decisions has expanded what language the NLRB considers to have a “chilling” effect on employees exercising their Section 7 rights to communicate about their wages, hours, and other terms and conditions of employment. As with our previous post, this is true even for employers without a unionized workforce. In light of the Board’s continued focus, the following handbook policies may deserve another look: Continue Reading The NLRB’s Relentless Attack on Handbooks: Four More Policies to Update