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BT Currents - Hot Topics in Employment Law
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18 Apr 2018 DOL Issues New Opinion Letters on Wage and Hour Issues – Compensability of Health-Related Rest Breaks

  The DOL recently issued three new Wage and Hour opinion letters on its website giving employers additional guidance on compensation for travel time, pay for health-related rest breaks as well as whether lump sum payments are subject to garnishments. This demonstrates the commitment of the DOL to re-establish the opinion letter program which was eliminated during the Obama administration.  Back in January, the DOL re-issued 17 opinion letters issued by the Bush administration nine years ago but which had been withdrawn during the Obama…

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16 Apr 2018 Know Before You Go: Does the DOL’s New PAID Program Pay Off For Employers?

  Complying with the spider web of statutes, regulations, and DOL opinion letters regarding the FLSA can be a nightmare for employers. Certainly, many of you may recall the furor that resulted just a little over a year ago when the DOL rolled out an update to the salary basis test. Employers across the country scrambled to make sure they could hit the DOL’s new deadlines and requirements, only to have the rug pulled out at the last moment by court order when the regulations…

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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of Labor (DOL) reinstituted 17 Advisory Opinion Letters that had been originally issued in 2009, but subsequently withdrawn during the Obama administration.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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29 Dec 2017 As Predicted, DOL Proposes Changes to Tip Pool Rule

As predicted in an earlier post, the U.S. Department of Labor has issued a Notice of Proposed Rulemaking which would alter its 2011 rule on tip pooling.  The 2011 rule prevented employers from requiring tipped employees from sharing their tips with traditionally non-tipped workers.  Under the proposed rule, employers who directly pay tipped employees the full minimum wage may require those employees to pool their tips with traditionally non-tipped employees.   The Fair Labor Standards Act (“FLSA”) generally requires employers to pay employees the minimum…

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26 Jul 2017 DOL Invites Public Input: Rethinking the Stalled Questions on Overtime

  Perhaps lost amidst other issues in Washington, D.C., the Department of Labor (DOL) announced on July 25 that it is tackling the long-awaited questions about overtime regulations.   The DOL’s Wage and Hour Division (WHD) is publishing a formal Request for Information that asks for public feedback on the Obama administration’s overtime rule. Once the RFI is published in the Federal Register, the public will have 60 days to submit comments. You’ll remember that the overtime regulations, which doubled the minimum salary levels for…

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11 Jul 2017 U.S. Department of Labor Abandons Obama Overtime Rule

  On June 30, the U.S. Department of Labor told the U.S. Court of Appeals for the Fifth Circuit that it intends to abandon the Obama overtime rule, but pursue new rule-making to set a more reasonable salary level. The department asked the Fifth Circuit to confirm is ability to set a minimum salary level through rulemaking. The department told the Fifth Circuit it would not initiate new rulemaking until the court affirms its right to set a minimum salary level – so timing remains uncertain.  …

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19 May 2017 Current Administration Considers EEOC and Labor Department Subagency Merger

  The Trump administration is reportedly considering a potential merger between the Equal Employment Opportunity Commission (EEOC) and a Labor Department subagency that enforces nondiscrimination requirements and affirmative action on government contractors.   The recommendation to merge the two entities originated from The Heritage Foundation, a Washington-based conservative research think tank. In its report, “Blueprint for Reform: A Comprehensive Policy Agenda for a New Administration in 2017,” The Heritage Foundation previously called for a complete phasing out of the Department of Labor’s Office of Federal…

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28 Mar 2017 Update on Trump’s Line-Up for DOL and Supreme Court

  Regulation-weary employers excitedly anticipated the new Trump Administration – and its promises that ranged from repealing the Affordable Care Act to appointing a friendly U.S. Supreme Court Justice to abolishing the fiduciary and overtime regulations. But, change often comes slowly in government, and employer expectations have been frustratingly delayed by some unexpected upsets on Capitol Hill. Apart from the last-minute decision to withdraw the GOP healthcare bill, here’s a quick update on two key Trump nominees.   Secretary of Labor   The ill-fated nomination…

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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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