The US Department of Labor is developing a new regulation on joint employment under the FLSA, a possible first step towards reversing the Trump administration’s business-friendly rule on the joint employer standard.

First Public Notice of Possible New Regulation

On February 23, the White House Office of Information and Regulatory Affairs (OIRA) posted on its

The DOL’s just-issued final rule on employee vs. independent contractor classifications under the FLSA seems likely to be reversed. On January 20, the White House issued a memorandum to the heads of all executive departments and agencies ordering them to halt all non-emergency rulemaking and regulatory activity issued under the previous administration pending review by

While most employers transitioned large segments of their workforces to remote work over the course of the past year, many also questioned how to satisfy various posting requirements when their workforce is at home. Fortunately, in late December, the Department of Labor (DOL) issued guidance on how employers can use virtual means to distribute and maintain the various posters required by federal employment laws.

Background

By way of reminder, several federal laws, including the Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), the Employee Polygraph Protection Act (EPPA), and the Service Contract Act (SCA) require employers to post a notice of rights in a conspicuous location. Typically — and pre-pandemic — employers met the notice requirements by placing posters on bulletin boards in well-trafficked locations such as break rooms or lobbies. But with the increase in remote work, many employers used company email and intranets as a workaround to notify employees of their rights. Now, employers have guidance to ensure their practices are compliant.


Continue Reading DOL Guidance on Electronic Posting of Federally-Required Notices

On August 8, 2020, a New York federal district judge struck down a significant portion of the DOL’s “joint employer” rule, meaning certain employers may be more likely to be deemed “joint employers” and exposed to liability for employee wage and hour violations under the FLSA. The “joint employer” final rule, which was issued by the DOL in January 2020, imposed a four-factor test for deciding whether employers in “vertical” employment relationships (i.e., when workers for a staffing company or other intermediary are contracted to another entity) are joint employers under the FLSA.

Continue Reading Are You A Joint Employer Now? Part of DOL’s “Joint Employer” Final Rule Struck Down

Employers must pay for all hours they know or “have reason to believe” employees worked. But can employers simply rely on teleworking employees to report all of their hours worked, or must they instead investigate whether their employees have accurately reported their work time? With the huge increase in teleworking since the start of the COVID-19 pandemic, this question should be top-of-mind for employers.

On August 24, 2020, the US Department of Labor issued Field Assistance Bulletin No. 2020-5 (FAB) to clarify an employer’s obligations in determining whether teleworking employees have accurately reported their work time. In short, the employer is not required to comb through every cell phone or computer login record to look for unreported work time that the employer neither knew of nor had reason to believe had been worked. As long as the employer provides employees with reasonable time-reporting procedures and does not otherwise impede or discourage reporting, its failure to compensate employees for unreported and unknown hours of work is not an FLSA violation. The FAB and some key takeaways for employers are summarized below.


Continue Reading A “Reason to Believe”: DOL Says the Obligation to Determine Remote Employees’ Hours of Work is “Not Boundless”

On July 20, 2020, the Wage and Hour Division of the US Department of Labor (DOL) published additional COVID-19 guidance in the form of a Q&A addressing Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and Families First Coronavirus Relief Act (FFCRA) issues arising when employers and employees return to work.

A few days before, on July 17, the DOL published streamlined optional-use forms for employer and employee notification and certification obligations under the FMLA and separately asked the public to comment on the FMLA and its regulations in a Request for Information (RFI). The additional guidance and forms should help employers navigate FMLA leave and employee wage and hour issues during COVID-19. And employers now have the opportunity to share their thoughts on the FMLA and its implementing regulations with the DOL. We provide more insight into the DOL’s recent activity below.


Continue Reading New Q&As, New Streamlined Forms, and an RFI: the Department of Labor Publishes More COVID-19 Guidance and Seeks Public Comment on the FMLA

With a surge in COVID-19 cases in parts of the US (and some states taking or considering taking a step backwards into a prior reopening phase), employers are trying to figure out the best ways to keep the virus from spreading in their reopened worksites. We have answered some frequently asked questions below to help employers implement or modify their screening protocol to make it the best fit for their physical workspace, their budget, and their workforce.

1.  Can I check my employees’ temperatures before they enter the  workplace? If my employees have a fever, can I send them home (or tell them not to come to work)?

Yes, employers can check their employees’ temperatures before they enter the workplace. In fact, some states and localities require employers to do daily or weekly checks, so check your local requirements.

A temperature check is a medical examination under the ADA, and in ordinary times, employers generally cannot require employees to submit to a temperature check. However, given COVID-19’s rise to the level of pandemic, and the CDC and state and local health authorities’ acknowledgment of the community spread of COVID-19 and issuance of precautions, EEOC guidance allows employers to check employees’ temperatures before they enter the workplace. Temperature checks are only permitted while the virus is severe, so as the level of community spread diminishes in your locality make sure that temperature checks are still permitted before you administer them.

In addition, employers can send employees home (or tell them not to come to work) if they have a fever or any of the other symptoms of COVID-19. See EEOC guidance and CDC guidance, “Separate Sick Employees.” The CDC defines a fever as 100.4 F or 38 C or above. States may have different guidance regarding what qualifies as a “fever,” with some states defining a “fever” as a flat 100 F, and employers can set lower temperature thresholds if they prefer.


Continue Reading Employee Testing for COVID-19: What Works Now for Your Worksite?

Employers in the US are more than a little fearful of COVID-19 related class and collective action lawsuits coming their way, and with good reason. Since shelter-in-place orders were imposed in March, US employers have faced class action lawsuits for a variety of COVID-19 related reasons, including the alleged failure to implement proper workplace safety measures or provide appropriate paid sick leave. To keep workers safe from contracting the virus at work, many employers have allowed employees to continue to work from home indefinitely, which likely decreases the odds that an employer will be sued in class action litigation for failing to provide appropriate PPE in the workplace. However, managing employees working from home can create other issues worthy of class-action litigation, including reimbursing those employees for work-related expenses.

What can employers do to ensure they meet reimbursement requirements to steer clear of expense reimbursement class action lawsuits in the US? Go through the four considerations, below.

  1. Know the rules that apply in your jurisdiction

Several jurisdictions have specific rules regarding employee expense reimbursements, so you’ll need to check your local law. In California, an employer must reimburse an employee for all “necessary expenditures or losses incurred by the employee in direct consequence or discharge of his or her duties.” Cal. Lab. Code § 2802. Similarly, Illinois requires reimbursement of all “necessary expenditures or losses” an employee incurs within the scope of employment that are “directly related to services performed for the employer,” unless the employer has a written reimbursement expense policy and the employee fails to comply with that policy. 820 ILCS 115/9.5. And in the District of Columbia, employers must pay the cost of purchasing and maintaining any tools that the employer requires to perform the employer’s business. D.C. Mun. Reg. tit. 7, § 910.1. If you have operations in several jurisdictions, make sure that you know and follow each applicable jurisdiction’s rules.

In addition, the Fair Labor Standards Act (FLSA) may apply. Though the FLSA does not require employers to reimburse their employees, under the FLSA “kickback” rule, employees cannot be required to directly pay business-related expenses or reimburse their employer for such expenses if doing so would cause the employee’s wage rate to fall below the required minimum wage or overtime compensation thresholds. See 29 C.F.R. § 531.35. Remote workers typically earn well-above the federal minimum wage ($7.25 per hour), so employers don’t need to be as concerned about business expenses causing those employees’ wages to dip below the federal minimum wage. However, employers should be on the lookout for these situations, which require more attention:

  • Where employees are subject to overtime for working more than 40 hours in a workweek;
  • Where a particular pay threshold (whether under federal or state law) must be met for the employee to meet an exemption from overtime (in which case the employee will become nonexempt and must be paid overtime for any work over 40 hours in a workweek); or
  • Where state or local minimum wages are higher (such as Chicago’s $14 per hour or California’s $12 per hour), making it more likely that an employee’s payment of business-related expenses would cause their wages to dip below the minimum wage.

A violation of the FLSA occurs in any workweek in which the cost of the business-related expenses borne by the employee cuts into the minimum or overtime wages required to be paid to the employee. Therefore, employers can more easily run afoul of the FLSA in these scenarios, especially if the business-related expenses paid in any given workweek happen to be hefty.


Continue Reading Want to Avoid Employee Reimbursement Class Actions for Remote Work? Take These Four Steps

Everything You Need To Know Right Now

After a “warp speed” Senate vote overwhelmingly approving the Families First Coronavirus Response Act (FFCRA), President Trump signed the FFCRA into law yesterday. The legislation is historic; it was not only enacted in days instead of the usual months, but for the first time in US history, many

On September 24, 2019, the Department of Labor (finally) issued the final rule on the minimum salary threshold required for employees to qualify for the Fair Labor Standards Act’s “white-collar” exemptions.

The final rule:

  • Raises the new minimum salary threshold to $35,568 per year ($684 per week). The previous salary threshold, which had been in place since 2004, was $23,660 ($455 per week).
  • Raises the “highly compensated” employee salary threshold from $100,000 to $107,432 per year.
  • Allows employers to count certain non-discretionary bonuses, incentives, and commissions to satisfy up to 10% of an employee’s salary level.
  • Does not impact the job duties test.
  • Is estimated to make an additional 1.3 million more workers eligible for overtime.
  • Will take effect quickly — on January 1, 2020.


Continue Reading DOL Issues Long-Awaited Final Overtime Rule