FLSA

Withdrawn: DOL Nixes Guidance on Independent Contractors and Joint Employment

Effective June 7, 2017, the Department of Labor (“DOL”) has withdrawn informal guidance on independent contractors and joint employment. The guidance on independent contractors came from an Administrator’s Interpretation released in 2015 and was the result of the DOL’s renewed focus on worker misclassification. In it, the DOL seized upon a broad definition of “employ” under the Fair Labor Standards Act (“FLSA”)—“to suffer or permit to work”—to conclude that “most workers are employees under the FLSA.”  The DOL’s guidance on joint employment was released in 2016 and also came from an Administrator’s Interpretation.  The guidance provided a broad interpretation of joint employment in the wake of the NLRB’s Browning-Ferris decision. It also distinguished between “horizontal” joint employment, which occurs when the employee has an employment relationship with two or more sufficiently related employers, and “vertical” joint employment, which occurs when the employee has an employment relationship with one employer (such a staffing agency or subcontractor), but economic realities show that he or she is economically dependent upon another entity.

In a press release announcing the withdrawn guidance, the DOL noted, “Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law. The department will continue to fully and fairly enforce all laws within its jurisdiction, including the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.”

Flagged Down: Second Circuit Finds NYC “Black Car” Drivers Are Independent Contractors

The Second Circuit has affirmed the dismissal of a class action of New York City “black car” drivers who alleged they were misclassified as independent contractors by their dispatchers. In reaching its ruling, the Court found that multiple factors of the economic realities test weighed against employee status for the drivers.

Black car drivers provide rides to high-end clientele, such as business executives, celebrities, and dignitaries. In 2012, a class of drivers sued Corporate Transportation Group Ltd. and a number of its affiliates (collectively, the “dispatchers”) alleging they were misclassified as independent contractors in violation of the FLSA and New York Labor Law.  After originally granting conditional class certification, the U.S. District Court for the Southern District of New York granted the dispatchers’ motion for summary judgment, concluding the drivers were properly classified as independent contractors under both statutes. READ MORE

President Trump Says “Not So Fast” — The Future of Overtime, Fiduciary, and Pay Reporting Rules Remains Uncertain Under the Trump Administration

On January 20, 2017, shortly after Donald Trump became the 45th President of the United States, his Chief of Staff, Reince Priebus, issued an Executive Memorandum mandating a 60-day freeze on published federal regulations that have yet to take effect to allow Trump’s appointees time to review the regulations. Although such action is fairly standard during a change of administration, the impact could be significant if certain regulations set to take effect in 2017 are delayed or ultimately replaced.  Regulations potentially affected by the 60-day freeze include the Department of Labor’s (“DOL”) overtime and fiduciary rules, and the Equal Employment Opportunity Commission’s (“EEOC”) EEO-1 pay reporting requirements. READ MORE

Game Over for NCAA Student Athletes Seeking Employee Status? 7th Circuit Affirms Dismissal of U. Penn Athletes’ FLSA Complaint

On December 5, 2016, the Seventh Circuit affirmed dismissal of a complaint filed by two University of Pennsylvania track and field athletes against the National Collegiate Athletic Association, the university, and more than 120 other NCAA Division I universities and colleges alleging that student athletes are entitled to minimum wage under the Fair Labor Standards Act (“FLSA”). In Berger v. NCAA, the court held that student athletes are not “employees” within the meaning of the FLSA and thus, are not entitled to a minimum wage for their athletic activities. READ MORE

Top Ten Employment Regulations or Initiatives Employers Want Trump to Dump or Fix

After the Obama administration’s employee friendly policies, employers will have a wish list of changes they believe a Trump administration would favor.  Here are ten items that should be at the top and why employers want to see action. READ MORE

Pay Raises Across the Nation? Not So Fast Say Several States and Business Groups: 21 States and 55 Business Groups Challenge New Federal Overtime Rule

On Tuesday, September 20, 2016, twenty-one states filed a complaint in federal court in Texas challenging the new overtime rule finalized by the Department of Labor (“DOL”) in May of this year.  The States seek to prevent implementation of the new rule, which is scheduled to become effective on December 1, 2016.  That same day, fifty-five business groups, including several chambers of commerce, filed a similar lawsuit in Texas federal court to block the rule.

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Digging Into the New Overtime Regulations

In 2015, the Department of Labor (“DOL”) proposed substantial changes to the minimum salary level requirements, sought input on whether bonuses and incentives should be included in meeting the salary level test and considered changing the duties test to establish overtime eligibility. Taken together, these proposed changes would have had a drastic effect on the obligation of employers to pay overtime. On May 18, 2016, DOL issued its Final Rules and employers have until December 1, 2016 to comply. Overall, the changes strike a middle ground as DOL declined to adopt the more restrictive California 50% duties test. However, doubling the salary level threshold and other changes present significant economic and compliance challenges for employers. Below is a summary of key takeaways and steps employers should consider to address these changes and ensure compliance.

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Will HR Managers Get Cooked? Second Circuit Says Culinary Institute’s Human Resources Director May Face Individual Liability Under FMLA

Whether a Human Resources Director will be deemed the “employer” and held individually liable for alleged violations under the Family Medical Leave Act (“FMLA”) should be left to the jury, according to the Second Circuit’s recent FMLA decision.  In Graziadio v. Culinary Institute of America, et al., 15-888-cv (2d Cir. Mar. 17, 2016), the Second Circuit found that there could be a viable claim for individual liability under the FMLA and it also announced the standard for what could be considered unlawful “interference” with FMLA rights.

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Pork Processing Plant Employees Can Keep the Bacon: Supreme Court Affirms Jury Award and Permits Proof of Wage and Hour Class Claims By Representative Evidence

While the Supreme Court in Tyson Foods, Inc. v. Bouaphakeo dashed employers’ hopes that the Court would broadly preclude statistical evidence and severely limit wage and hour class actions in a fashion similar to its restriction of discrimination class actions in Wal-mart v. Dukes, the Court was also clear that this type of evidence will not be appropriate or probative in all wage and hour claims.  In ruling for the class action claimants, the Court affirmed a $2.9 million jury award for overtime claims related to donning and doffing at an Iowa pork processing plant.  In so ruling, the Supreme Court refused to adopt the position advanced by Tyson Foods and several of its amici that class actions cannot be resolved by reliance upon representative evidence or statistical samples.  It also refused to embrace Tyson Food’s reading of Wal-mart v. Dukes as standing for the proposition that representative sample is an impermissible means of establishing class-wide liability.  But the Court also made clear whether statistical evidence could be used for liability depends on the claims asserted and the particular evidence.  While the decision is not unsurprising after oral arguments, it seems likely that employers will see an uptick in plaintiffs aggressively relying on “representative” statistical evidence in wage and hour collective and class cases.  There are, however, several “lessons learned” based upon the majority’s decision.

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Game-Changing Overtime Regulations Advance to OMB Ahead of Schedule, Final Rule Could Arrive as Early as April 2016

The U.S. Department of Labor (DOL) sent its much anticipated final overtime regulations to the Office of Management and Budget (OMB) for review on March 14, 2016.  Technically, this move came slightly ahead of schedule.  OMB now has 90 days to review, which would put its “due date” in mid-June – ahead of the July regulatory agenda publication date we previously reported.  However, as these overtime regulations are a top-line priority subject to intense political scrutiny, there is reason to believe OMB may not complete its review within the 90-day window. 

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