Tag Archives: Fair Labor Standards Act

NEW GUIDANCE: Department of Labor Publishes 6 New Opinion Letters

The US Department of Labor has certainly been busy as of late.  In addition to creating a new agency and developing two new websites, the DOL has also issued six new opinion letters, which interpret various issues under the federal Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA).

FMLA Opinion Letters

#1.  Can organ-donation surgery qualify as a “serious health condition” under the FMLA?

In the first letter, the DOL addressed the question of whether an organ donor qualifies as an individual with a serious health condition for purposes of the FMLA.

The DOL concluded that organ donation does qualify as a serious health condition because the donor often will often require an overnight stay in the hospital.

#2.  Does this employer’s no-fault attendance policy violate the FMLA?

In the second letter, the DOL addressed the question of whether a no-fault attendance policy that “freezes” during an employee’s FMLA leave (i.e. remains at the number of attendance points that the employee accrued prior to taking FMLA leave) violates the FMLA. Continue reading NEW GUIDANCE: Department of Labor Publishes 6 New Opinion Letters

PENALTY INCREASE — STOP Before Violating These Laws

The US Department of Labor recently announced that it is increasing the penalties associated with violations of several employment laws.  The penalty increase applies to all penalties assessed after January 2, 2018 for violations that took place after November 2, 2015.

The increase in penalties applies to the following violations, among others:

Law Violation Type Old Maximum Penalty New Maximum Penalty
Family Medical Leave Act Failure to post required FMLA notices $166 $169
Fair Labor Standards Act Willful or repeated violations the FLSA minimum wage and/or overtime provisions $1,925 $1,964
Violations of the FLSA child labor law provisions $12,278 $12,529
Violations of the FLSA child labor law provisions that result in serious injury or death $55,808 $56,947
Willful or repeated violations of the FLSA child labor law provisions that result in serious injury or death $111,616 $113,894
Occupational Safety and Health Act Violations of the OSHA provisions $12,675 $12,934
Willful or repeated violations of the OSHA provisions $126,749 $129,336
Failure to post required OSHA notices $12,675 $12,934
Failure-to-abate violations of the OSHA provisions $12,675 $12,934

In addition to the above-listed laws, the DOL also increased the penalties for violations of several other laws, including the Employee Retirement Income Security Act, the Immigration and Nationality Act, and the Employee Polygraph Protection Act, among others.

For a complete table of the increased penalties, click here.

Check to See if the Minimum Required Salary For Exempt Employees is Increasing In Your State

While the minimum salary requirements for “white collar” employees (executive, administrative, or professional employees) is not changing in 2018 (at least not until/unless the Department of Labor announces a new Overtime Rule), there are several states where the minimum salary requirements for exempt employees is increasing in 2018 (December 31st for New York employers).

These increases (i.e. in Alaska, California, Colorado, Maine, New York, and Oregon) are occurring because the minimum exempt salary rates for these employees (as established under state law) are scheduled to increase in 2018 (December 31st for New York employers).

Under the Fair Labor Standards Act (FLSA), the minimum salary requirements for white collar employees is as follows:

Payment Schedule Minimum Salary
Weekly $455
Bi-Weekly $910
Semi-Monthly $985.83
Monthly $1,971.66
Annual $23,660

Continue reading Check to See if the Minimum Required Salary For Exempt Employees is Increasing In Your State

WAGE AND HOUR LAWS TO KEEP IN MIND IN THE AFTERMATH OF HURRICANE IRMA

In the aftermath of Hurricane Irma, employers in impacted areas in Florida are working to try to get their businesses back up and running as quickly as possible.  When engaging in these efforts, employers need to remember that there are certain legal protections for employees when faced by this type of natural disaster.

  • Wage and Hour Requirements
    • Exempt Employees: If the business closed for less than a full workweek and your exempt employees performed any work during that workweek, then under the Fair Labor Standards Act, employers are required to paid their exempt employees for the days that the business is closed (i.e. for the entire workweek).If, however, the business remains open and an exempt employee does not come into work, then the exempt employee does not have to be paid for the day.  Instead, it is treated as an absence for personal reasons.  But, if the exempt employee arrives late or leaves early, then he must be paid for the full day of work.

      Finally, if the exempt employee works from home in lieu of coming into work, then he must be paid for the entire workweek.

    • Non-Exempt Employees: Under the FLSA, employers are not required to pay non-exempt employees who do not report to work as the result of a natural disaster.The only exceptions to this rule are (1) if employees are paid under a fluctuating workweek or (2) if there is a collective bargaining agreement in place that requires payment under these circumstances.

      Finally, if a non-exempt employee works from home in lieu of coming into work, then he must be paid for all hours worked.

Employment Laws to Keep In Mind In The Aftermath of Hurricane Harvey

In the aftermath of Hurricane Harvey, employers in impacted areas in Texas are working to try to get their businesses back up and running as quickly as possible.  When engaging in these efforts, employers need to remember that there are certain legal protections for employees when faced by this type of natural disaster.

  • Wage and Hour Requirements
    • Exempt Employees: If the business closed for less than a full workweek and your exempt employees performed any work during that workweek, then under the Fair Labor Standards Act, employers are required to paid their exempt employees for the days that the business is closed (i.e. for the entire workweek).

      If, however, the business remains open and an exempt employee does not come into work, then the exempt employee does not have to be paid for the day.  Instead, it is treated as an absence for personal reasons.  But, if the exempt employee arrives late or leaves early, then he must be paid for the full day of work.

      Finally, if the exempt employee works from home in lieu of coming into work, then he must be paid for the entire workweek.

    • Non-Exempt Employees: Under the FLSA, employers are not required to pay non-exempt employees who do not report to work as the result of a natural disaster.

      The only exceptions to this rule are (1) if employees are paid under a fluctuating workweek or (2) if there is a collective bargaining agreement in place that requires payment under these circumstances.

      Finally, if a non-exempt employee works from home in lieu of coming into work, then he must be paid for all hours worked.

 

  • Emergency Evacuation Discrimination law
    • Under Texas Labor Code Chapter 22, employers are prohibited from discharging or in any other manner discriminating against an employee who leaves the employee’s place of employment to participate in a general public evacuation ordered under an emergency evacuation order.

      Under this law, a disaster is the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property that results from a natural or man-made cause, including fire, flood, earthquake, wind, storm, wave action, oil spill or other water contamination, volcanic activity, epidemic, air contamination, blight, drought, infestation, explosion, riot, hostile military or paramilitary action, or other public calamity requiring emergency action, or an energy emergency.

      Employers who violate this provision are liable for any loss of wages or employer-provided benefits and must reinstate the employee to the same or equivalent position.

Fluctuating Work Week Method Of Compensation Is Permissible For Certain Nevada Employees

In a recently published Advisory Opinion, the Nevada Labor Commissioner has opined that Nevada employers may use the fluctuating workweek method to compensate certain types of nonexempt Nevada employees.

What is the fluctuating workweek method?

The fluctuating workweek method is a accept method of compensation under the Fair Labor Standards Act for nonexempt employees who are paid a fixed salary for all hours worked. Under this method, the employer and employee have come to an understanding that the employee will receive the fixed salary as straight time pay for whatever hours he is called upon to work in a workweek – no matter how few or how many.

If the employee works over 40 hours in a workweek, the employer then pays the employee overtime based on one-half the employee’s regular rate of pay. The regular rate of pay is calculated by dividing the employee’s weekly salary by the total hours the employee worked that week. That number is then divided in half to determine the overtime rate – because the employer and employee previously agreed that the salary compensated the employee for all straight time hours worked.

What did the Nevada Labor Commissioner opine?

The Labor Commissioner found that the fluctuating workweek method of compensation was permissible for fixed salary nonexempt employees. In addition, he also found that fluctuating workweek method of compensation is also permissible where a fixed salary employee is also paid commissions and bonuses provided that those commissioner and/or bonuses are included in the weekly amount of pay when determining the employee’s regular rate of pay.

Take home for employers

While the fluctuating workweek method is a accept method of compensation in Nevada, it is recommended that Nevada employers consult with an HR Professional or legal counsel before using this method of payment with their employees.

NEW Law – San Francisco Expands Protections for Nursing Mothers

On June 30, 2017, San Francisco Mayor Ed Lee signed the “Lactation in the Workplace Ordinance”. This new law expands the protections provided to nursing mothers under California (and federal law) for nursing mothers employed within the “geographic boundaries” of San Francisco.

What’s required under California and federal law?

The California Labor Code requires employers to provide employees who are nursing mothers with a private location and a reasonable amount of time to express breast milk during the workday. The private location cannot be a bathroom and it must be shielded from view and free from intrusion. Employers are also required to make a reasonable effort to provide a private, secure, and sanitary room or other location where an employee can express her breast milk that is in close proximity to the employee’s work area.

The Fair Labor Standards Act requires employers to provide employees who are nursing mothers with “reasonable break time” to express breast milk during the workday for at least one year after the child’s birth. Like California law, the FLSA requires employers provide a private location that is not a bathroom for this purpose.

What does the Ordinance require?

The Ordinance requires that employers provide a “lactation location” that:

  • Is safe, clean, and free of toxic or hazardous materials;
  • Contains a surface upon which to place the breast pump and personal items;
  • Contains a place to sit; and
  • Has access to electricity.

In addition, the employer must provide the employee with access to a sink with running water and a refrigerator that is in close proximity to the employee’s workspace. Finally, if a “multi-purpose room” is used also for lactation, the use of the room for lactation takes precedence over other uses.

In addition, employers must also implement a lactation policy that meets the following requirements:

  • The policy must include a statement about the employee’s right to request a lactation accommodation and the process for requesting an accommodation.
  • The policy must be included in the employee handbook.
  • The policy must be distributed to
    • New employees upon hiring and
    • When an employee inquires about or requests parental leave.

Employers must respond to an employee’s request for a lactation accommodation within 5 business days of receipt of the request and, if the employer cannot provide break time and/or a location that is compliant with the ordinance, the response must be in writing.

Employers must also maintain a written record of these requests for 3 years from the date of the request.

Recommended action for employers

The new ordinance goes into effect on January 1, 2018. It is recommended that all San Francisco employers review these requirements and verify that they are able to comply with these new requirements.

The New FLSA Overtime Rule – Challenges Abound

The new FLSA Overtime Rule is scheduled to go into effect on December 1st. This rule, as most employers likely already know, increases the FLSA’s minimum annual salary requirements for exempt employees to $47,476 per year ($913 per week).

In the face of this rapidly approaching deadline, there have been recent efforts to delay, if not entirely prevent, the new overtime regulations from going into effect. While this article will (briefly) discuss these challenges, it remains our recommendation that all employers continue to plan for and implement any necessary changes to ensure compliance with the new FLSA Overtime Rule come December 1st.

What are the challenges?

On September 20, 2016, two separate lawsuits were filed in federal court (the Eastern District of Texas) seeking an injunction to stop the new overtime regulations from going into effect. The first lawsuit was filed by the U.S. Chamber of Commerce in conjunction with a number of other business groups. The second lawsuit was filed by a coalition of 21 states (Nevada, Texas, Alabama, Arizona, Arkansas, Georgia, Indiana, Kansas, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, Utah, Wisconsin, Kentucky, Iowa, Maine, New Mexico, Mississippi, and Michigan). Both lawsuits were assigned to a District judge who was nominated by President Obama. As a result, it is not anticipated that the injunction will be granted. Moreover, while both groups have indicated that they will appeal a denial of the injunction, it could take longer than the available time (i.e. time before the December 1st effective date) for the Appellate Court to hear/rule on the appeal.

On September 21, 2016, House Subcommittee on Workforce Protections Chair Tim Walberg proposed legislation (The Regulatory Relief for Small Businesses, Schools, and Nonprofits Act (H.R. 6094)) that while it does not change the FLSA Overtime Rule, would delay the rule’s effective date by six months. This bill was passed by the House of Representatives on September 28, 2016 and has moved over to the US Senate for consideration.  However, even if Congress passes this legislation before the effective date, it is likely that President Obama will veto this bill.

What should employers do?

As stated above, employers should not rely on these challenges to stop the new FLSA Overtime Rule from going into effect. It is imperative that employers continue to work out their compliance strategy and plan to be in compliance with the new rule by December 1st.

Clarifying “Incentive Payments” Under the New FLSA Regulations

The new FLSA regulations went into effect on May 18, 2016. (see our previous article on the new regulations “It’s Here … The DOL’s New Overtime Rule is (Finally) Published”)

The new regulations increased the minimum salary threshold for the FLSA overtime exemption from $23,660 per year to $47,476 per year (or $913 per week).

Also, under the new regulations, employers will be permitted to use an employee’s non-discretionary bonuses and “incentive payments” (including commissions) to satisfy up to 10% of the new standard salary level — subject to certain restrictions.

While the term “incentive payment” is not defined in the new regulations, there are certain aspects of compensation that are clearly not considered “incentive pay”. Those items are those which the US Department of Labor has historically not allowed to be included in the calculation of the minimum salary amount, namely:

  • The value of medical, disability or life insurance or contributions to retirement plans or other fringe benefits, or
  • The value of board and lodging paid by an employer.

When determining whether an exempt employee’s salary is in compliance with the new overtime rules, employers may not consider the value of incidental benefits provided to the employee by the employer.

It’s Here … The DOL’s New Overtime Rule is (Finally) Published

The days of speculation regarding the changes to the salary requirements for the FLSA overtime exemption have (finally) come to an end.

The US Department of Labor has released its new overtime regulations, resulting in the following changes:

  • The minimum salary threshold for the FLSA overtime exemption is increasing from $23,660 per year to $47,476 per year (or $913 per week);
  • Employers will be permitted to use an employee’s nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10% of the new standard salary level — subject to the following guidelines:
    • nondiscretionary bonuses and incentive payments must be paid on a quarterly or more frequent basis and
    • the employer may make a “catch-up” payment on the first payday following the close of the quarter, if the nondiscretionary bonus/incentive payment falls short of the salary level;
  • The total annual compensation requirement for highly compensated employees is increasing to $134,004 annually; and
  • The salary threshold will be updated once every three years

The new rule goes into effect December 1, 2016.  It is strongly recommended that employers start thinking about how this change impacts their current exempt workforce as soon as possible.

The new rule is over 500 pages long, so to help employers digest these regulations, the Department of Labor has released the following guidance materials:

In addition, the White House has released the following guidance: