On June 22, 2020, the White House issued the “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak” which is the latest in a series of U.S. immigration restrictions purportedly tied to the COVID-19 outbreak and its impact on the American economy. READ MORE
On June 15, and just in time for LGBTQ+ Pride month, the U.S. Supreme Court issued a landmark decision holding that Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of sexual orientation and gender identity. The decision is among the most Court’s most significant federal non-discrimination rulings in the last several decades, and immediately resolves a circuit split regarding the scope of Title VII’s prohibition on sex-based discrimination. The decision covers three consolidated opinions – Bostock v. Clayton Cnty. Bd. of Comm’rs, Altitude Express, Inc. v. Zarda, R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission. READ MORE
On June 11, the U.S. Equal Employment Opportunity Commission (“EEOC”) again updated its compendium FAQs on COVID-19 and the workplace. The latest revisions provide additional guidance on non-discrimination obligations under various federal non-discrimination laws as employees return to work. We previously blogged about the agency’s FAQ guidance here. READ MORE
As we recently reported, the DOL promulgated three new final rules regarding wage and hour issues last month. One of these rules brings a much-needed dose of clarity for certain employers on an unusually thorny issue: what exactly is a “retail or service establishment” for purposes of the “retail exemption” under Section 7(i) of the FLSA? This section exempts certain commissioned employees in “retail or service establishments” from the FLSA’s overtime compensation requirement, but the list of qualified employers has been notoriously confusing and vague. Effective May 19, 2020, the DOL’s final rule nixed its almost half-century old catalog of qualifying establishments and adopted a new and uniform framework for determining eligibility for the exemption. READ MORE
In a possible attempt to implement new rules before they can be rescinded by a Democratic Congress and administration, the Department of Labor recently finalized regulations regarding wage and hour issues and the Labor Secretary’s power to review administrative decisions. These administrative moves are the result of a little-known but important statute aimed at curbing midnight rulemaking by outgoing administrations. The Congressional Review Act (“CRA”) establishes special congressional procedures for disapproving a broad range of regulatory rules issued by federal agencies. By joint resolution, Congress can approve or disapprove of a regulation, which then goes to the President to sign or veto. If Congress adjourns its annual session less than 60 “legislative days” in the House of Representatives or 60 “session days” in the Senate after a rule is submitted to it, the rule is carried over to the next session of Congress and subject to possible disapproval during that session. While it is difficult to calculate the CRA deadline—particularly given COVID-19’s impact on Congress’ schedule—if the Trump administration fails to finalize the rules before the CRA deadline and Republicans lose control of the White House and Senate, a Democratic-controlled Congress could successfully rescind the rules under the CRA. READ MORE
On April 17, 2020, the Department of Labor’s Deputy Assistant Secretary Joe Wheeler responded by letter to Senator Ron Wyden and other Democratic lawmakers who had raised concerns about the Coronavirus Aid, Relief, and Economic Security Act’s (CARES Act) Pandemic Unemployment Assistance (PUA) program. Notably, the letter clarifies several eligibility criteria, including that self-employed gig economy workers and workers who cannot work because they have coronavirus symptoms and are seeking a diagnosis may receive federal unemployment assistance under the PUA program. READ MORE
The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits employers of all types and sizes from discriminating against applicants and employees based on uniformed service, which includes service in the Army, Navy, Marine Corps, Air Force, Coast Guard, the Guard and Reserve components of military services, and the Commissioned Corps of the Public Health Service. The law grants strong reemployment rights and protections for service members returning to their civilian jobs. READ MORE
On September 24, 2019, the U.S. Department of Labor (DOL) announced its final rule updating the earnings thresholds necessary to exempt executive, administrative, and professional employees from the Fair Labor Standards Act’s (FLSA) minimum wage and overtime pay requirements. According to the DOL’s press release, “[t]he increases to the salary thresholds are long overdue in light of wage and salary growth since 2004,” and the DOL estimates that 1.3 million additional workers will be entitled to minimum wage and overtime pay as a result of the new regulations. READ MORE
Alex Acosta’s resignation from the Labor Secretary post signaled a quick blow to a key member of President Trump’s cabinet. It is too early to determine how this change will affect the DOL as far as policy and personnel. However, this blog provides insights on some key questions.
On April 29, 2019, the U.S. Department of Labor (“DOL”) issued an opinion letter finding that “on-demand” service providers working for a virtual marketplace company are independent contractors under the Fair Labor Standards Act.
The opinion letter comes almost two years after the DOL withdrew informal guidance on independent contractors issued under the Obama administration, in which the DOL concluded that “most workers are employees under the FLSA.” The new opinion letter signals an approach more friendly to “gig economy” virtual marketplace companies (or “VMCs”), online and/or smartphone-based referral services that connect consumers with service providers providing a wide variety of services, such as transportation, delivery, shopping, moving, cleaning, plumbing, painting, and household services. READ MORE