retail

Catching Up with the Times: DOL Issues Final Rule Simplifying Retail Exemption Under the FLSA

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

DOL Issues New Rules to Try to Beat the Clock

In a possible attempt to implement new rules before they can be rescinded by a Democratic Congress and administration, the Department of Labor recently finalized regulations regarding wage and hour issues and the Labor Secretary’s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