DOL Announces Test for Determining Intern Status under the FLSA

By Amanda Warford Edge

As many employers have begun thinking about their summer hiring needs, the Department of Labor (“DOL”) has announced that going forward, it will apply the “primary beneficiary” test to determine whether interns working for “for-profit” employers are employees under the Fair Labor Standards Act (“FLSA”). The DOL’s announcement provides much-needed clarity to employers, as it comes in the wake of a growing number of federal appellate court decisions that have rejected the DOL’s former six-factor test to determine internship status. Indeed, with this announcement, the DOL has

Texas Judge Blocks Overtime Rule

By: Sharon Gold

In September, 21 states and numerous business groups sued the U.S. Department of Labor (DOL) in a Texas Federal Court attacking the DOL’s Final Rule that raised the salary minimum for workers to be exempt from overtime requirements under the Fair Labor Standards Act (FLSA).  The states filed a motion for preliminary injunction asking the judge to enjoin enforcement of the Final Rule pending a final resolution of their legal arguments against the Rule.  The businesses moved for summary judgment. 

Are Your FLSA and EPPA Posters Up to Date?

By Courtney Ross Samford

The Department of Labor recently announced revisions to the Fair Labor Standards Act (FLSA) and Employee Polygraph Protection Act (EPPA) posters that must be posted in workplaces across the country.  The updated posters, which are available for download on the DOL’s website, must be posted by August 1, 2016.

All private, federal, state and local government employers employing at least one employee are subject to the requirements of the FLSA.  The EPPA applies to any employer engaged in or affecting commerce or in the production of goods for commerce, but excludes federal, state and local governments, and circumstances covered by the national defense and security exemption.

Sharon Gold to present at Bluegrass Compensation Association meeting, “FLSA Overtime Update”

Sharon Gold, a Partner with Wyatt, Tarrant & Combs and leader of the Firm’s Employment Practices Liability Insurance (EPLI) team, will be speaking at the Bluegrass Compensation Association meeting at the Lexington Herald-Leader on June 22, 2016.  Ms. Gold will be providing an FLSA update concerning the Department of Labor’s Final Rule that requires overtime for employees making less than $47,476 per year.  Her presentation will provide guidance on the requirements of the new regulation, the implementation deadline, and tips on implementation.

 

Please click here to view the agenda and register.

DC Circuit Reinstates DOL Rule Applying FLSA’s Minimum Wage and Overtime Provisions to Home Care Workers

By Michelle D. Wyrick

On August 21, 2015, in Home Care Association of America v. Weil, the United States Court of Appeals for the District of Columbia Circuit cleared the way for the implementation of regulations extending the Fair Labor Standards Act’s (“FLSA’s”) minimum wage and overtime provisions to many home care workers. The court rejected a challenge to the United States Department of Labor’s (“DOL’s”) authority to change its interpretation of the scope of the FLSA provisions exempting from minimum wage and overtime guarantees domestic-service workers who provide either companionship services or live-in care for the elderly, ill, or disabled. The court’s ruling directly affects home care workers who are employed by third-party providers, like home health care agencies.

For four decades, the DOL interpreted the FLSA’s exemptions for companionship services and live-in workers to apply to employees of third-party providers. The old regulations specifically stated that domestic workers, who were employed “by an employer other than the family or household using their services,” were not included in the FLSA’s protections. Thus, traditionally, those workers have not been eligible for

NLRB Rules That Filing a Class or Collective Action Is Protected, Concerted Activity

By Michelle D. Wyrick

Last week, the National Labor Relations Board (“NLRB”) decided in 200 East 81^st Restaurant Corp. d/b/a Beyoglu that “the filing of an employment-related class or collective action by an individual employee is an attempt to initiate, to induce, or to prepare for group action and is therefore conduct protected by Section 7” of the National Labor Relations Act (“NLRA”). The employee in the case, a waiter, testified that he mentioned filing a lawsuit against his employer to one co-worker, who declined to participate in the proposed lawsuit. When the waiter filed the lawsuit, he did not obtain prior authorization from any other employee. On the day the complaint was served on the employer, the employer removed the waiter’s name from the work schedule and asked him if he expected to work while he was filing a lawsuit. The waiter left the workplace and was never told he could return to work. The Administrative Law Judge found that the employer terminated the waiter’s employment in retaliation for filing the lawsuit, on behalf of himself and other similarly situated employees, alleging violations of the Fair Labor Standards Act (“FLSA”).

The dissent disagreed with the majority’s conclusion that an employee’s filing of a class or collective action automatically equates to protected, concerted activity. The dissent noted that not every non-NLRA class or collective claim “triggers an automatic overlay of NLRA rights and restrictions.” In the dissent’s view, the simple act of filing a class or collective action “does not instantly convert the

DOL Issues Guidance on FLSA’s “Suffer or Permit” Standard for Independent Contractors

By Courtney Ross Samford

Yesterday, the DOL released new guidance on the FLSA’s “suffer or permit” standard that governs the distinction between employees and independent contractors. According to the DOL, the goal of the guidance is to reduce the increasing number of employees who are misclassified as independent contractors.

The FLSA defines “employee” as “any individual employed by an employer.” 29 U.S.C. 203(e)(1). The term “[e]mploy includes to suffer or permit to work.” 29 U.S.C. 203(g). The phrase “suffer or permit” is determined by the economic realities test, which includes the following factors: (1) the extent to which the work performed is an integral part of the employer’s business; (2) the worker’s opportunity for profit or loss depending on his or her managerial skill; (3) the extent of the relative investments of the employer and the worker; (4) whether the work performed requires special skills and initiative; (5) the permanency of the relationship; and (6) the degree of control exercised or retained by the employer. The guidance goes on to discuss each factor in greater detail. Significantly, the DOL opined in the guidance that “applying the economic realities test in view of the expansive definition of ‘employ’ under the [FLSA], most workers are employees under the FLSA.” (Emphasis added).

In light of the DOL’s emphasis on misclassified workers, all employers should carefully evaluate each independent contractor to ensure that he or she is properly classified pursuant to the economic realities test. The full guidance is located here.