DOL Extends FLSA Final Joint Employment Rule Effective Date

The federal Fair Labor Standards Act (FLSA) requires employers to pay non-exempt employees at least minimum wage plus overtime compensation. If an employee is unpaid or underpaid — due to a calculation error or an employee’s unreported time worked, including remote work arrangements during the pandemic — the employee may recover back pay, liquidated damages, attorneys’ fees and litigation costs. If two or more employers have a relationship with an employee — for example, if an employee works for a staffing agency and is assigned to work at the agency’s customer or an employee performs work for two with common ownership or management — the law may deem the employers to be joint employers with joint and several liability, depending on the facts. If one joint employer fails to comply with the FLSA, both joint employers may be held liable. Different laws use different tests for joint employment.

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DOL Proposes New Rule Clarifying the Test for Classification of Workers

On September 22, 2020, the U.S. Department of Labor (DOL) issued a new proposed rule that would substantially simplify the test for determining whether persons are employees or independent contractors under the Fair Labor Standards Act (FLSA).

Because the FLSA does not actually define “employee,” courts have traditionally filled the void by applying an “economic realities” test that balances several factors. But in issuing a new proposed rule, the DOL noted that the current balancing test is difficult to apply, creates confusion, and is out of step with modern technology and working relationships.

For the full alert, visit the Faegre Drinker website.

Department of Labor Wage & Hour Division Provides Work From Home Guidance

On August 24, 2020, the Wage and Hour Division of the Department of Labor (DOL) published guidance addressing employer obligations to track employee hours while teleworking. The DOL emphasized that though the guidance is being issued in part due to the increase in teleworking arrangements with COVID-19, it applies to all telework or remote work arrangements, not only those caused by the pandemic.

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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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