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BT Currents - Hot Topics in Employment Law
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04 Dec 2015 Wage Wars: The Plaintiff’s Bar Awakens

2015 has been a banner year for wage & hour litigation. Roughly 9,000 new federal wage & hour lawsuits were filed as of Sept. 30 – with many thousands more filed in state courts. New federal filings have increased about 450 percent over the last 15 years, according to a recent study by Seyfarth Shaw. What’s more, the trend is likely to continue for the foreseeable future.   The problems for employers are at least threefold:   1). Wage & hour issues can be extremely…

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01 Sep 2015 Comment Period for Controversial Overtime Rule Closes Soon

The U.S. Department of Labor (DOL) will not extend the comment period for its controversial proposed Overtime Rule, which was formally published on July 6, 2015. As a result, the comment period will close Friday, Sept. 4, 2015. Comments can be submitted on the proposed Overtime Rule at www.regulations.gov.   The proposed Overtime Rule sparked controversy as it would extend overtime protections to persons currently falling within the exempt status definition under the Fair Labor Standards Act (FLSA). Currently, to qualify as exempt from the…

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24 Aug 2015 DOL TO CONSIDER RULE ON PORTABLE ELECTRONIC DEVICES OUTSIDE OF WORKING HOURS

Perhaps in anticipation of the greater number of non-exempt employees as a result of the proposed increase in salary for exempt employees, the Department of Labor (DOL) has announced that it will be seeking public input on the question of employees’ use of portable technology outside their workplace and normal working hours. This was introduced as a part of the DOL’s Spring 2015 regulatory agenda and it is anticipated that they will issue this public request for information by the end of the month.  …

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15 Jul 2015 DOL Cracks Down on Definition of Independent Contractors

According to the Department of Labor (DOL), most workers are “employees,” not independent contractors.   After years of watching more contract workers fall outside the categories of “employees,” this morning, the DOL issued an Administrator’s Interpretation regarding the alleged “misclassification” of workers as independent contractors, and broadly includes most workers as employees.   The DOL’s guidance responds to the skyrocketing usage of contract labor in the wake of increased government regulation, including the Affordable Care Act. Bucking this trend, agencies like the DOL have increased…

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14 Apr 2015 Caveat to the FMLA Final Rule on Same-Sex Spouses: Not Yet

Put an asterisk on my February blog entry that “spouse means spouse” under the FMLA.   In late March, a federal judge in Wichita Falls, Texas, issued a preliminary injunction against the Department of Labor – to keep it from enforcing its new and expanded definition of “spouse” after being challenged by the states of Texas, Arkansas, Louisiana and Nebraska. Those four states object to the Department of Labor’s revised definition of “spouse” to include same-sex spouses because they claim the agency’s new rule would…

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24 Feb 2015 FMLA Final Rule: ‘Spouse’ Means Same-Sex Spouse (Even in Alabama)

Even for HR veterans, administering the FMLA still triggers occasional anxiety attacks. Within the last two weeks, I was asked, “How should we treat same-sex spouses under the FMLA?” On at least this cause for nervousness, the Department of Labor has finally issued clear guidance.   On Feb. 23, Secretary of Labor Thomas Perez announced, in essence, that under the FMLA, “spouse” means “spouse,” even if you are living in a state that does not recognize same sex marriages.   The DOL’s Final Rule announced…

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15 Sep 2014 FMLA Certifications: When “Unknown” and “Probably” Aren’t Enough

  The words on the FMLA Certification jump out at us: “Unknown.” “Unpredictable.” “Probably.” Instead of the certainty we were looking for, we have more questions.   The DOL regulations require that the FMLA Certifications not only be “complete,” but also “sufficient.” What is “sufficient?” In looking at this issue recently, we found no DOL advisory opinions, although there are some court rulings to guide us.   As an initial matter, rely on the regulations: a medical certification is incomplete if information requested is not provided,…

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02 Jan 2014 The Dangers of Employees Taking A “Working Lunch”

An Employer’s liability may turn out to be more than anticipated when employees work through their meal breaks. The Department of Labor’s FLSA regulations say that “meal breaks” of 30 minutes or longer ordinarily may be unpaid. By contrast, “rest periods” of 20 minutes or less must be paid. “What happens,” a wary human resources manager might ask, “if my company allows its employees to take breaks that are longer than 20 minutes and less than 30 minutes?”  And, if the company’s timekeeping system automatically…

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30 Sep 2013 Does the DOL’s Letter on Law Students Signal a Broader Acceptance of Intern Arrangements?

The subject of unpaid interns doing productive work has become a hot button in recent months. High profile lawsuits have been filed, and it has become a reflex response among informed employers not to entertain the possibility of unpaid interns. Undoubtedly the subject in part has taken center stage because of the difficulty young professionals have in obtaining paid jobs. They understandably want to build their resumes, and many would be quite willing to work for free if the alternative is no work at all. In the…

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11 Jan 2013 Department of Labor Secretary Solis Resigns

Earlier this week, Secretary Hilda Solis announced that she is leaving the Department of Labor (DOL), creating a vacancy for President Obama to fill. In her letter to DOL employees, Solis stated that she submitted her resignation to President Obama earlier in the day after “much discussion with family and close friends” over the holiday season.  Solis’ letter praised the enforcement efforts of the DOL, noting that last year the largest number of investigations were conducted “in recent memory, collecting the most back wages in…

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