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BT Currents - Hot Topics in Employment Law
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16 Jan 2018 What’s Old Is New Again: DOL Resurrects Advisory Opinion Letters

  Employers can expect to benefit from real-life answers to some real-employer wage-and-hour questions now that the U.S. Department of Labor (DOL) reinstituted 17 Advisory Opinion Letters that had been originally issued in 2009, but subsequently withdrawn during the Obama administration.   Such opinion letters provide formal, detailed analysis and answers to employers who pose FLSA compliance questions to the DOL. The opinion letters are published on the DOL website, thus any employer who happens to have the same or a similar compliance issue can…

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10 Jan 2018 The DOL Just Flipped Its Position on Paying Interns

  Late last week, the DOL effectively revamped the standards for unpaid interns, reversing a rule that had been in place since 2010 and giving private, for-profit employers whiplash.   The FLSA does not define “intern.” However, “[a] person whose work serves only his own interest” is not considered to be “an employee of another person who gives him aid and instruction.”  Walling v. Portland Terminal Co., 330 U.S. 148, 152 (1947).   2010 DOL Standard   The DOL upended that long-standing rule in 2010…

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12 Dec 2017 Second Circuit Holds that Hearst Interns are not Employees

  Last week, the U.S. Court of Appeals for the Second Circuit issued a decision upholding an order granting summary judgment in favor of Hearst Corporation, publisher of such magazines as Cosmopolitan, ELLE and Harper’s BAZAAR, finding that the plaintiffs were not illegally deprived wages under the FLSA or New York state law as statutory “employees.” This is the second decision in this case at the Second Circuit as this case previously reached the Second Circuit, but was then remanded back to the District Court…

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06 Jul 2017 A Welcome Move for Employers – Department of Labor Re-Establishes Wage and Hour Opinion Letters

  Last week, Alexander Acosta, U.S. Secretary of Labor, announced that the U.S. Department of Labor will reinstate the issuance of opinion letters. This move will allow the Department of Labor’s Wage and Hour Division to once again use opinion letters as a way to provide direction to covered employers and employees.   According to the Department of Labor’s news release, “[a]n opinion letter is an official, written opinion by the Wage and Hour Division of how a particular law applies in specific circumstances presented…

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08 May 2017 House Passes Bill to Legalize Comp Time in the Private Sector

  Employers and employees may soon have more flexibility in how and when overtime gets paid. Last week the U.S. House of Representatives passed the Working Families Flexibility Act (WFFA), a law that would amend the Fair Labor Standards Act (FLSA) by allowing employers to offer, and employees to accept, “comp time”­ instead of cash payment for hours worked over 40 in a workweek. “Comp time” is generally defined as paid time off that is earned instead of receiving cash payment for overtime. It is…

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06 Apr 2017 Lesson: Don’t Underestimate Court’s Ability to Change Its Mind Minor Leaguers’ Wage Suit Gets Certified and Comes Back From the Dead

  While Major League Baseball (MLB) can celebrate its new season, which began on April 2, the last pitch has yet to be thrown when it comes to addressing a minimum wage and overtime lawsuit filed by thousands of minor league players.   A lawsuit filed by a class of thousands of Minor League Baseball (MiLB) players in February 2014, which is part of a feeder system into MLB clubs, claims that minor league ballplayers are not paid the proper minimum wage or overtime. The…

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30 Dec 2016 The DOL’s Final Rule on Life Support?

  Earlier this year, the Department of Labor (DOL) issued its long-awaited final rule updating the salary level for workers who are exempt from the overtime requirements of the Fair Labor Standards Act (FLSA). The final rule, also commonly known as the overtime rule, was supposed to go into effect on Dec. 1, 2016.   As readers of this blog are aware, the update was met with fierce opposition from business groups and employers. In September, a group of 21 states and various business groups…

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09 Dec 2016 Fifth Circuit Agrees to Expedite Appeal on Overtime Rule Injunction

  The U.S. Court of Appeals for the Fifth Circuit has announced the briefing schedule in the overtime rule appeal being closely watched by both employers and employees alike. In November, U.S. District Judge Amos Mazzant of the U.S. District Court for the Eastern District of Texas issued a nationwide preliminary injunction blocking the Department of Labor’s (DOL) overtime regulations that would have increased the salary threshold underlying the executive, administrative and professional exemptions. This injunction was issued just days before the Dec. 1 effective…

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22 Nov 2016 December 1 Overtime Rule Blocked Texas Court GRANTS 21-State Emergency Motion for Preliminary Injunction

  At the eleventh hour, U.S. District Judge Amos Mazzant of the East District of Texas ruled in favor of 21 states and issued a nationwide injunction against the U.S. Department of Labor (DOL) and its efforts to radically expand the coverage of the Fair Labor Standards Act (FLSA). Specifically, per the order issued in State of Nevada v. United States Department of Labor on Nov. 22:   “… the [DOL’s] Final Rule described at 81 Fed. Reg. 32,391 is hereby enjoined. Specifically, Defendants are…

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21 Nov 2016 Using an Employee’s Social Media Posts to Prove Laziness? Think Again

  Is it permissible for an employer who is subject to an unpaid overtime claim to request an employee’s social media postings over a three-year period? The U.S. District Court for the Middle District of Florida found such requests to be overly broad, unduly burdensome and unreasonable.   A sales representative sued her employer for uncompensated off-the-clock work. During discovery, the employer, Orange Lake Country Club, requested the following information from the employee:   All online profiles, postings, messages (including, without limitation, tweets, replies, retweets,…

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