Think Your Workers are Independent Contractors? Not So Fast Says the DOL

On July 15, 2015, the U.S. Department of Labor (“DOL”) issued an Administrator’s Interpretation that purports to clarify on one of the most challenging legal questions facing employers today:  are certain workers employees or independent contractors?  Notably absent from the guidance, however, is any specific reference to workers who provide services through “on-demand” companies like Uber, Lyft, and Airbnb who use technology to deliver traditional services more efficiently by connecting consumers directly with service providers.  This is surprising since it seems that the DOL’s renewed focus on misclassification has stemmed in large part from the slew of pending on-demand worker lawsuits in which the classification tests have proven very difficult to apply.

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To Pay or Not To Pay: The Second Circuit Rules on Unpaid Interns

In addressing a matter of first impression, the Second Circuit Court of Appeals set out a new standard to determine when an unpaid intern is deemed an employee for purposes of the Fair Labor Standards Act (“FLSA”) and thus entitled to compensation, including minimum wage and overtime, under the FLSA.  Two appeals were argued in tandem on this issue with the Second Circuit issuing an Opinion on July 2, 2015 in Glatt v. Fox Searchlight Pictures, Inc., and a Summary Order in Wang v. Hearst Corp.

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Class Action Lawsuits: In Vogue? High Fashion Gets Hit with Wage and Hour Class Action Lawsuits over Unpaid Internship Programs

Sportswear-inspired designs, bold prints, and gingham aren’t the only things trending for Spring 2015 in the fashion world.  Judging from a recent wave of lawsuits, wage and hour class actions are trending as well. Over the past few years, class action lawsuits over unpaid internships have been on the rise, with this most recent wave of filed lawsuits serving as a powerful reminder to employers that intern programs can’t simply be viewed as a way to recruit free labor.

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U.S. Department of Labor Advances Regulatory Agenda with Final Rule Barring Federal Contractors from Discriminating against LGBT Workers

On December 3, 2014, the U.S. Department of Labor (DOL) released its final rule barring federal contractors from discriminating on the basis of sexual orientation and gender identity.  The final rule implements an Executive Order signed by President Obama in July 2014 amending Executive Order 11,246 to include sexual orientation and gender identity as prohibited bases of employment discrimination by federal contractors and subcontractors.

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Let’s Talk About Sex: U.S. Department of Labor Targets Transgender & Gender Identity Discrimination

On Tuesday, August 19, 2014, the U.S. Department of Labor issued a directive to “clarify that existing agency guidance on discrimination on the basis of sex . . . includes discrimination on the bases of gender identity and transgender status.”  This directive follows President Obama’s Executive Order 13672, issued on July 21, 2014, amending existing orders to specifically prohibit federal contractors from discriminating based on gender identity.

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Employers Should Act Now to Avoid Potential Data Minefields: The OFCCP’s New Proposed Rules for Collecting Compensation Data from Federal Contractors

On August 8, 2014, the Office of Federal Contract Compliance (“OFCCP”) proposed new annual reporting requirements for federal contractors and subcontractors.  The proposal requires additional pay information and will become effective in early 2015, unless the OFCCP decides to amend them.

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Babysitters at the Gate: The Supreme Court’s Radical Expansion of SOX’s Whistleblower Protections

Yesterday, in Lawson v. FMR LLC, a divided U.S. Supreme Court decided its first case addressing the whistleblower protections of the Sarbanes-Oxley Act (SOX).  The question before the Court: do those protections extend only to the employees of public companies, or do they also reach the employees of contractors and subcontractors of public companies?  You can see our prior posts on the case here (June 19, 2012), here (October 8, 2013), here (January 7, 2014), and here (January 28, 2014). Read More

The Affordable Care Act – Consider Yourself on Notice

Under the Affordable Care Act, employers subject to the Fair Labor Standards Act must provide a “Notice of Coverage Options” to each employee. The purpose of this Notice is to inform employees that they may obtain health insurance through their states’ Health Insurance Marketplace. For current employees, the Notice must be distributed before October 1, 2013.  For new employees, the Notice must be given within 14 days after work begins.  Read More

Collection of Pay Data by Gender, Race and National Origin

On August 15, 2012, a panel commissioned by the Committee on National Statistics (CNSTAT) issued a report concluding that the U.S. Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP) of the U.S. Department of Labor (DOL) should not collect earnings data by gender, race and national origin from private employers until the agencies develop a clearly articulated plan regarding how the data will be used to further their enforcement responsibilities.  The panel also made several recommendations to assist the agencies in preparing to collect such data. Read More

ARB Holds Private Firm Accountants Are Covered By SOX

In Spinner v. David Landau and Associates, LLC, the Department of Labor’s Administrative Review Board (“ARB”) held that an accountant for a private firm was a covered employee under SOX where the firm performed services for publicly traded clients. In so holding, the ARB rejected the First Circuit’s contrary interpretation of SOX in Lawson v. FMR LLC. The Spinner decision provides new ammunition for employees of non-public companies seeking to bring SOX whistleblower claims against their firms and raises significant liability concerns for firms that have operated under the assumption that their employees were not covered by SOX’s whistleblower provisions. Read More