On February 23, 2021, the U.S. Department of Labor (DOL) sent a proposed new regulation on joint employment status under the Fair Labor Standards Act (FLSA) to the White House for regulatory review. This action is indicative that new guidance will follow for determining joint employer status when an employee performs work that benefits more than one employer.
On Jan. 7, 2021, the U.S. Department of Labor (DOL) published its final rule to revise and update its regulations regarding classification of employees vs. independent contractors. This determination of independent contractor status is critical to wage liability, as employees are generally guaranteed minimum wage and overtime under the Fair Labor Standards Act—absent some exemption—while independent contractors are not.
On September 22, 2020, the U.S. Department of Labor (USDOL) issued proposed regulations regarding the determination of whether an individual is an employee under the Fair Labor Standards Act (FLSA) or an independent contractor who is not subject to the FLSA's minimum wage and overtime requirements. The proposed regulations are expected to be published in the Federal Register on September 25, and comments can be submitted for 30 days after publication. If the proposed regulations are adopted, it will likely be easier for businesses to classify employees as independent contractors under the FLSA.
On September 11, 2020, the United States Department of Labor (USDOL) issued revisions to the Temporary Rule it issued on April 1, 2020, implementing the employee leave provisions of the Families First Coronavirus Response Act (FFCRA). The revisions respond to the August 3 decision by the United States District Court for the Southern District of New York (District Court) that invalidated certain parts of the Temporary Rule. The revised regulations took effect on September 16, 2020.
In its August 3 decision, the District Court ruled that four parts of the Temporary Rule were invalid: (1) the requirement that an employee may only take FFCRA leave if there is work available from which to take leave; (2) the requirement that an employee may take intermittent FFCRA leave only with employer consent; (3) the definition of a “health care provider” whom an employer may exclude from taking FFCRA leave; and (4) the requirement that employees who take FFCRA leave must provide certain documentation to their employer prior to taking leave.
The Department reconsidered the portions of the Temporary Rule that the District Court held were invalid. It reaffirmed the regulations in part, revised the regulations in part, and provided further explanation of its rationale for its regulations.
Earlier this year, the United States Department of Labor (“USDOL”) issued new regulations regarding joint employment under the Fair Labor Standards Act (“FLSA”). Seventeen states (including New York) and the District of Columbia subsequently filed suit in the U.S. District Court for the Southern District of New York to challenge the USDOL’s adoption of its new joint employment regulations. The Court recently issued a decision in that lawsuit, holding that the USDOL's joint employment regulations relating to vertical joint employer liability should be vacated because they conflict with the definitions contained in the FLSA and are arbitrary and capricious.
On August 24, 2020, the United States Department of Labor (DOL) issued guidance to assist employers in complying with their obligation to track compensable hours of employees working in remote or telework arrangements. While this guidance was issued in response to the increase in remote work due to the COVID-19 pandemic, it applies to all employees working remotely for any reason.
On August 3, 2020, the United States District Court for the Southern District of New York held that the U.S. Department of Labor ("DOL") exceeded its statutory authority by promulgating certain regulations implementing the Families First Coronavirus Response Act ("FFCRA"). The FFCRA, which was enacted on March 18, 2020, is one of the major relief statutes passed by Congress in response to the COVID-19 pandemic. It contains two major provisions: (1) the Emergency Family and Medical Leave Expansion Act ("EFMLA"), which grants paid leave to employees who are unable to work because they must care for a dependent child due to the closure of the child's school or place of child care; and (2) the Emergency Paid Sick Leave Act ("EPSLA"), which requires covered employers to provide paid sick leave to employees for one of six qualifying COVID-19-related reasons.
The State of New York brought suit against the DOL pursuant to the Administrative Procedure Act, challenging several features of the DOL's regulations on the ground that they unduly restricted the paid leave available to employees under the statute. The Court, in large part, agreed with the State.
On June 8, the U.S. Department of Labor issued its final rule to provide some clarity for employers seeking to use the fluctuating workweek method of computing overtime compensation under the Fair Labor Standards Act. The final rule, which is essentially the same as the proposed rule that was issued on November 5, 2019, lists each of the five requirements for using the fluctuating workweek method separately and explicitly states that bonuses, premium payments, and other additional payments of any kind are compatible with the use of the fluctuating workweek method. The final rule becomes effective on August 7.
About one week after the USDOL's fluctuating workweek rule was issued, the Second Circuit Court of Appeals (the Federal appellate court with jurisdiction over employers in New York) issued a decision in the case of Thomas et al. v. Bed Bath & Beyond Inc. In the Bed Bath & Beyond case, the Second Circuit affirmed the dismissal of a collective action filed by a group of Department Managers who alleged that Bed Bath & Beyond had improperly used the fluctuating workweek method to pay them overtime.
On April 1, 2020, the Department of Labor (DOL) published the first regulations on the Families First Coronavirus Response Act (FFCRA). As a reminder, the FFRCA became effective on April 1 as well, and provides for Emergency Family and Medical Leave (EFMLA) and Emergency Paid Sick Leave (EPSL). Both laws apply to private employers with fewer than 500 employees, as well as some public employers.
On March 18, 2020, the Families First Coronavirus Response Act (“FFCRA”) was enacted. The statute left many questions regarding its implementation and administration unanswered. Over the past several days, the U.S. Department of Labor (the “DOL”) has been publishing questions and answers addressing some of these unanswered questions. Here is a summary of some of the key information provided by the DOL.
The COVID-19 pandemic has already caused severe disruption to many businesses across the country. Employers will be required to continue to monitor developments and adjust to changing circumstances in the coming weeks and possibly months. We provide the following recommendations for employers in dealing with the many employment-related issues that will inevitably arise.
On January 16, 2020, the Wage and Hour Division of the United States Department of Labor (“DOL”) published its final rule to revise and update its regulations regarding joint employer status. The final rule largely adopts the proposed rule the DOL published in April of 2019, which we wrote about here. The final regulations become effective March 16, 2020, and mark the first significant revision since they were enacted in 1958. Employers should take note of these new regulations because if an employee is found to be jointly employed by two employers, both employers are jointly and severally liable for all wages owed to that employee, including overtime wages.