Donning, Doffing and PPE: The Compensability of Pre-Shift and Post-Shift Activities

The Fair Labor Standards Act (FLSA) and state wage and hour laws require businesses to record and pay their nonexempt employees for all “compensable time,” including certain activities that occur before an employee begins his or her principal activities during the work day. During the COVID-19 pandemic and after retail employees “return to work,” workers may be required (or choose) to engage in certain tasks at the start of their shifts and throughout the workday.

For the full alert, visit the Faegre Drinker website.

Employer COVID-19 Responses May Trigger Additional State and Local Wage Payment, Notice and Other Obligations

In the midst of the COVID-19 pandemic, state and local “stay at home” orders and the resulting financial and business impact, many employers have implemented or are considering a range of workforce planning alternatives to workforce reductions, including moving to a primarily remote workforce, temporary reductions to employee hours or pay (or both), and temporary periods of continued employment without any work or pay (commonly referred to as furloughs). This article addresses some of the frequently asked questions regarding state and local wage payment and notice issues that may arise in connection with such measures.

For the full alert, visit the Faegre Drinker website.

Justice Gorsuch Casts Deciding Vote Rejecting NLRB’s Prohibition on Class Action Waivers

In a long-awaited decision, the United States Supreme Court, by a 5-to-4 vote, overturned the National Labor Relations Board’s (the “Board”) ruling that class action waivers violate the National Labor Relations Act (NLRA) because they interfere with the right to engage in “protected activity,” which, according to the Board, includes the ability to bring class or collective actions. Epic Sys. Corp. v. Lewis, No. 16-0285, 2018 WL 2292444, at *23 (U.S. May 21, 2018).

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Pennsylvania Federal Court Rules that Drivers are Properly Classified as Independent Contractors

In Razak v. Uber Technologies, Inc., a Pennsylvania federal judge ruled last week that drivers for UberBLACK, the company’s higher-end limousine service, are properly classified as independent contractors. In granting Uber’s motion for summary judgment, this court was the first federal court to determine whether drivers for UberBLACK are employees or independent contractors under the Fair Labor Standards Act (“FLSA”) and similar Pennsylvania state laws.

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U.S. Department of Labor Announces New “PAID” Program for Settling FLSA Claims

On March 6, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) announced a new pilot program through which employers may settle potential overtime and minimum wage claims under the FLSA by paying back pay owed to the affected employee(s), but without paying civil penalties or liquidated damages.  The Payroll Audit Independent Determination (PAID) program will be available for six months, after which the Department will evaluate the viability of the program.  This program is purely voluntary, both for employers, in that they would need to self-disclose the violation(s) to the WHD, and employees, who may choose to accept the back pay being offered by the employer as full settlement of the potential claim, or decline the offer and file suit, thus preserving the right to recover liquidated damages if successful.  If the employee chooses to accept the back pay, and thus settle the potential claim by signing a release of that claim, the WHD will only approve a release if it is tailored to the identified violations and the time period covered by the back wages payment.  Employers are not eligible for the program if they are already under investigation by the WHD, involved in litigation or arbitration regarding the particular claim, or the employee has already communicated an interest in litigating or settling the issue.  Claims that could be resolved through this program include misclassification of employees as exempt from overtime or failure to pay for “off the clock” work.

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The Department of Labor Reinstates Seventeen Bush Era Opinion Letters

Earlier this year, the United States Department of Labor (“DOL”) reinstated seventeen George W. Bush Era opinion letters which were issued in January 2009, but later withdrawn by the Obama Administration. Opinion letters are official guidance from the DOL’s Wage and Hour Division that provide employers with detailed responses to fact-specific questions pertaining to the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Davis-Bacon Act (DBA).

In 2010, the DOL stopped issuing opinion letters and instead began issuing “administrative interpretations,” which offered a more general interpretation of the law rather than a response to specific questions posed by employers or employees.

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