OFCCP Recent Developments and Guidance on COVID-19

In the wake of the coronavirus (COVID-19) pandemic, many federal contractors are questioning to what extent the Department of Labor (DOL) Office of Federal Contract Compliance Programs (OFCCP) will continue to operate and whether recently passed legislation includes any relief for federal contractors. While the OFCCP has made it clear that it remains “virtually” operational, it will not be “business as usual.”

For the full alert, visit the Faegre Drinker website.

Retaining Independent Contractors in New Jersey Just Got Even Riskier

On January 21, 2020, New Jersey Governor Phil Murphy signed into law three bills that increase the potential pitfalls for businesses that rely on independent contractors. One new law adds to the penalties for misclassifying employees as independent contractors. Another new law imposes liability on businesses ─ including potential liability on individual managers ─ that use staffing companies that misclassify workers. The third new law adopts new posting requirements and anti-retaliation provisions.

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U.S. Department of Labor Issues New FMLA Guidance

On March 14, 2019, the U.S. Department of Labor (DOL) issued an opinion letter concerning the Family Medical Leave Act (FMLA). The FMLA provides eligible employees a maximum of 12 weeks of unpaid, job-protected leave for specified family and personal medical reasons and up to 26 weeks to care for a covered service member per year. In its opinion letter, the DOL addressed whether an employer may delay designating paid leave as FMLA leave or permit employees to expand their FMLA leave beyond the statutory requirements.

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U.S. Department of Labor Extends Expiration of FMLA Forms Through August 2021

The U.S. Department of Labor (“DOL”) Wage and Hour Division recently announced that its model Family and Medical Leave Act (“FMLA”) notices and certification forms are valid for another three years, until August 31, 2021. There is nothing new in the updated model FMLA forms, other than a new expiration date, which is located on the top right corner of the forms.

Employers who use the DOL’s model FMLA forms can access them at the following links:

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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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Donald Trump’s Labor Secretary Revokes Obama-Era DOL Joint Employer and Independent Contractor Guidance

On June 7, 2017, U.S. Secretary of Labor Alexander Acosta announced that the U.S. Department of Labor (DOL) is withdrawing two major pieces of informal guidance issued during the Obama administration, pertaining to joint employment and independent contractors under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq.

The two Administrator Interpretations Letters were issued by the former head of the DOL’s Wage and Hour Division, David Weil. The first guidance letter, Administrator’s Interpretation No. 2015-1, took an aggressive position regarding misclassification of employees as independent contractors. It stressed that the “economic realities” of worker-employer relationships were paramount—i.e., whether, as a matter of economic reality, a worker was dependent on the putative employer—and suggested that most workers should be classified as employees. Although it relied on case law, the Administrator Letter provided additional refinements and, significantly, de-emphasized consideration of “control”—a major element under most common law tests.

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