On January 10, 2024, the U.S. Department of Labor (“DOL”) published its final rule that revises its guidance regarding the standard for assessing whether a worker is an employee or independent contractor under the Fair Labor Standards Act (“FLSA”). The final rule rescinds the DOL’s previous final rule that was published at the end of President Trump’s term of office in January 2021. As we previously reported in the wake of the issuance of the Department of Labor’s October 13, 2022 proposed rule, the final rule returns to a totality-of-the-circumstances analysis akin to the “Economic Reality Test.” This new final rule ultimately has the effect of making it more difficult to classify workers as independent contractors. The new final rule goes into effect on March 11, 2024.Continue Reading The Department of Labor Issues New Final Rule for Independent Contractor Classification
As previously discussed here, the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP”) was signed into law on December 29, 2022. PUMP further amends the federal Fair Labor Standards Act (“FLSA”) by extending protections for employees who need to express breast milk at work and broadens the available remedies for violations.Continue Reading The U.S. Department of Labor Provides Guidance for Agricultural Employers on the PUMP Act
On December 29, 2022, the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP”) was signed into law. PUMP further amends the federal Fair Labor Standards Act (“FLSA”) by extending protections for employees who need to express breast milk at work. PUMP broadens the available remedies for violations and extends employee coverage requirements. The U.S. Department of Labor Wage and Hour Division (the “DOL”) recently issued guidance on PUMP’s requirements.Continue Reading The Department of Labor Issues Guidance for Employers Concerning the PUMP Act
The Fair Labor Standards Act of 1938 (“FLSA”) created the right to a minimum wage and overtime pay. The FLSA also provides exemptions to overtime pay requirements for certain employees. Under the “bona fide executive” exemption, “highly compensated employees” are exempt from overtime if performing at least one qualifying job duty. However, on February 22, 2023, the United States Supreme Court, in its 6-3 decision in Helix Energy Solution Group, Inc. v. Hewitt, clarified that highly compensated employees paid on a “day-rate” do not qualify for this exemption because a day-rate does not satisfy the salary basis test.Continue Reading Supreme Court Clarifies a “Day-Rate” Does Not Meet the FLSA “Salary Basis” Test, Even for Highly Compensated Employees
The Third Circuit is expected to soon make a decision as to whether student-athletes can be considered university “employees” under the Fair Labor Standards Act (“FLSA”). But its interpretation of the law might reverberate beyond the confines of college sports and could implicate whether unpaid student interns must also be treated as employees.Continue Reading What the Third Circuit’s Looming Decision Regarding Whether College Athletes Can Constitute “Employees” Will Mean for Universities and Employers of Unpaid Student Interns
On October 24, 2022, the Ninth Circuit Court of Appeals issued a decision in Cadena v. Customer Connex LLC, concerning whether the time employees spend booting up and shutting down their computers is compensable under the Fair Labor Standards Act (“FLSA”). Although the case arose out of a call center in Las Vegas, Nevada, where the employees’ principal duties included answering customer phone calls, this case may affect all employers whose employees spend time turning on their computers to work.Continue Reading Time Spent Booting Up Computers May Be Compensable Under the Fair Labor Standards Act
On October 13, 2022, the U.S. Department of Labor (“DOL”) published its proposed rule regarding the classification of employees and independent contractors under the Fair Labor Standards Act (“FLSA”) in an attempt to resolve inconsistent analyses amongst the Federal Courts of Appeals. The proposed rule would return to a totality-of-the-circumstances analysis of the “Economic Reality Test” (with a few modifications), which would have the effect of making it more difficult to classify workers as independent contractors.Continue Reading The Haunting Return of the Economic Reality Test: U.S. Department of Labor Proposes Resurrecting the Pre-Trump Era Employee/Independent Contractor Test
On May 2, 2022, the Supreme Court of the United States (“SCOTUS”) granted an employer’s petition for review to determine whether highly compensated employees are entitled to overtime compensation under the Fair Labor Standards Act (“FLSA”) if they are paid on a daily rate and not on a salary basis.
Continue Reading SCOTUS to Determine Whether Highly Compensated Employees Are Entitled to Overtime Pay
On May 5, 2021, the U.S. Department of Labor (“DOL”) announced it is officially withdrawing, effective May 6, 2021, the rule promulgated under the Trump administration addressing the standard to determine whether an individual is properly classified as an employee or an independent contractor under the Fair Labor Standards Act (“FLSA”). The rule, which was rolled out two weeks before the end of President Trump’s term, was initially scheduled to take effect on March 8, 2021 but was delayed by President Biden until May 7, 2021.
Continue Reading U.S. Department of Labor Announces Withdrawal of Trump-Era Independent Contractor Rule
In a decision of considerable significance in the world of wage and hour litigation, the United States Court of Appeals for the Fifth Circuit significantly departed from conventional standards for assessing conditional certification under Section 216(b) of the Fair Labor Standards Act (“FLSA”). In Swales v. KLLM Transport Services, Inc., the Fifth Circuit rejected the conditional certification process entirely and drastically altered the procedure for assessing whether potential members of a collective action under the FLSA are “similarly situated.”
Continue Reading Fifth Circuit Shuts Down FLSA Conditional Certification
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?