The Department of Labor (“DOL”) recently issued key guidance in the form of frequently asked questions (“FAQs”) about COBRA Premium Assistance under the American Rescue Plan Act of 2021 (“ARPA”).  In addition to issuing the FAQs, the DOL issued model notices and announced a new website dedicated to the COBRA premium subsidy under ARPA, which can be found at the following link: https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/cobra/premium-subsidy.
Continue Reading COBRA Premium Assistance Under the American Rescue Plan Act of 2021 – What Employers Should Know

On January 7, 2021, the U.S. Department of Labor (“DOL”) announced its final rule (the “Final Rule”) setting the standard to determine whether an individual is an employee or an independent contractor under the Fair Labor Standards Act (“FLSA”). The employee versus independent contractor debate has garnered significant attention over the years as more workers desire the flexibility that comes with contractor status. While the Final Rule – the DOL’s first codification of the independent contractor test – offers businesses, workers, regulators, and courts predictable guidance, it is unlikely to remain in its current form since it does not take effect until over one month after President-elect Biden takes office. Nonetheless, employers and businesses should understand the import of the Final Rule and continue to monitor federal and state law developments on this important topic.
Continue Reading U.S. Department of Labor Finalizes New Rule Setting Forth Test to Assess Employment Versus Contractor Status; But Will It Survive Under the Biden Administration?

On December 22, 2020, the U.S. Department of Labor (DOL) issued its final rule modifying federal regulations concerning compensation for “tipped employees.”  The new final rule follows 2018 federal legislation, which amended the Fair Labor Standards Act (FLSA) to, among other things, prohibit employers from keeping their employees’ tips “for any purposes, including allowing managers or supervisors to keep any portion of employees’ tips” even if they do not claim a tip credit.

Continue Reading Share The Tip Jar: Department of Labor Finalizes Rule Opening Tip Pooling To Back-of-the-House Workers

On September 22, 2020, the United States Department of Labor (DOL) released a long-awaited proposed rule (the “Proposed Rule”) providing guidance for determining employee versus independent contractor status under the Fair Labor Standards Act (FLSA).  For decades, employers have struggled with properly classifying workers, oftentimes resulting in substantial liability for, among other things, unpaid overtime and unpaid payroll taxes.  If adopted, the Proposed Rule may make it easier for employers to classify workers as independent contractors.
Continue Reading Independent Contractor v. Employee: DOL Releases Proposed Rule Clarifying Test for Classification of Workers

On August 24, 2020, the U.S. Department of Labor (“DOL”) issued Field Assistance Bulletin No. 2020-5 (“FAB 2020-5” or the “Bulletin”) in an effort to guide an increasing number of employers faced with the challenge of tracking compensable hours worked by teleworking non-exempt employees.  Specifically, FAB 2020-5 offers clarity regarding how, and to what extent, employers must monitor the number of hours worked by non-exempt employees who work remotely.  As many workforces seem poised to continue partial or complete telework for the balance of the year, FAB 2020-5 provides useful insight to assist employers in properly monitoring remote hours and avoiding liability for unpaid wages.
Continue Reading Trust, but Verify: DOL Issues New Guidance for Tracking Teleworkers’ Time

The COVID-19 pandemic has highlighted the central role local and long haul trucking companies and drivers play in the overall U.S. economy and specifically our public health infrastructure.  Now, as states and businesses around the country gradually reopen and truck deliveries begin to ramp up, employers in the commercial trucking industry should be aware of recent changes to Hours of Service regulations as well as COVID-19-related guidance on keeping employees and the general public healthy and safe.  By updating their policies and procedures and enacting responsible safety measures, motor carriers will be in the best position to weather the storm of this pandemic and avoid the risks associated with employment litigation and compliance pitfalls.
Continue Reading Overview of Recent Updates for Employers in the Commercial Trucking Industry

After years of uncertainty, on September 24, 2019, the Department of Labor released a Final Rule making changes to the Fair Labor Standards Act (“FLSA”) overtime regulations.

BACKGROUND

Since 2004, there had been no significant changes in the overtime salary thresholds under the FLSA. In 2016, the Obama administration attempted to make significant increases to the salary thresholds. Those proposed changes came to a halt when a federal judge in the Eastern District of Texas, granted a preliminary injunction, and ultimately invalidated the rule. Now, several years later, the DOL’s Final Rule provides employers with much more certainty as to their obligations under the FLSA.
Continue Reading It’s Here: The DOL’s Final Overtime Rule has Been Released

Hoping to clarify when entities should be treated as “joint employers” under the FLSA, the Department of Labor (“DOL”) recently announced its intent to revise its so-called “joint employer” regulations under the Fair Labor Standards Act (“FLSA”). Under the FLSA, covered employers must pay nonexempt employees at least the federal minimum wage for all hours worked and overtime wages for all hours worked in excess of 40 hours in a workweek. Since 1939, the DOL has recognized that two or more entities may sometimes “jointly” employ a single employee and share legal responsibility for that employee’s wages for hours worked for either entity. However, the DOL has not formally addressed the conditions under which “joint employment” relationships exist since 1958.
Continue Reading Aiming for Clarity, DOL Proposes to Update the FLSA’s “Joint Employer” Regulations

Directly in line with the U.S. Department of Labor’s Office of Federal Contract Compliance Program’s (OFCCP) new policy emphasis on agency transparency, accountability, efficiency and collaborative resolution, the OFCCP released three new helpful directives on November 30, 2018 concerning the agency’s investigative procedures and avenues for increased communication with federal contractors. The three directives, titled DIR 2019-01 (regarding “Compliance Review Procedures”), DIR 2019-02 (regarding “Early Resolution Procedures”), and DIR 2019-03 (regarding “Opinion Letters and Help Desk”) were issued to “provide guidance to OFCCP staff or federal contractors on enforcement and compliance policy [and] procedures.” While each directive serves its own unique regulatory function, together these directives represent OFCCP’s commitment to consistency in enforcement and cooperation with the federal contractor community. As a whole, they should be viewed as beneficial to contractors aiming to comply with the law, but minimize the “gotcha” approach recently favored by the agency.
Continue Reading OFCCP Issues Contractor Friendly Directives That Aim to Streamline Investigative Processes and Decrease Contractor Guesswork

In a welcome departure from its recent practice, the U.S. Department of Labor’s Wage and Hour Division (WHD) recently issued its first new opinion letters in almost ten years. In addition to issuing three new opinion letters earlier this month, on January 5, 2018, WHD reissued seventeen opinion letters previously withdrawn under the Obama administration.

The resurrection of this practice offers employers a useful tool to ensure compliance with federal employment laws. Prior to the Obama administration, the WHD had a longstanding practice of issuing opinion letters in response to inquiries from employers concerning the application of the Fair Labor Standards Act (FLSA), the Family Medical Leave Act (FMLA) and other laws enforced by the WHD. These letters have traditionally provided guidance to both employers and employees concerning compliance with the laws and regulations under WHD’s purview. Significantly, for employers, good faith reliance upon WHD’s opinion letters can provide a defense to potential claims of a violation of the FLSA or other laws under the WHD’s jurisdiction.
Continue Reading Department of Labor Offers Employers Clarity By Resuming Its Practice of Issuing Opinion Letters

On Tuesday, March 6, 2018, the U.S. Department of Labor (“DOL”) announced its launch of the Payroll Audit Independent Determination (PAID) Program (“PAID” or the “Program”) – aimed at increasing employers’ FLSA compliance and timely payment of back wages to employees. The Program, which will start with a six-month pilot period prior to evaluation and finalization, is explained in detail below.

What is the PAID Program’s Goal?

The Program’s goal is to increase compliance with the FLSA’s overtime and minimum wage requirements by providing employers the opportunity to self-audit and report inadvertent non-compliance without fear of litigation or penalties. The Program also hopes to expedite payment of back pay to affected employees and to cut down on litigation costs to employers, employees, and taxpayers.
Continue Reading Department of Labor Announces New Payroll Audit Pilot Program