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U.S. Department of Labor Requests Public Input on Overtime Regulations

07/25/17

The U.S. Department of Labor announced today that they will publish a Request for Information for the overtime rule on Wednesday, July 26.

In the news release, USDOL announced:

“The RFI is an opportunity for the public to provide information that will aid the department in formulating a proposal to revise these regulations which define and delimit exemptions from the Fair Labor Standards Act’s minimum wage and overtime requirements for certain employees.

“The RFI solicits feedback on questions related to the salary level test, the duties test, varying cost-of-living across different parts of the U.S., inclusion of non-discretionary bonuses and incentive payments to satisfy a portion of the salary level, the salary test for highly compensated employees, and automatic updating of the salary level tests.”

In the RFI, the USDOL said that gathering public input will greatly aid in the development of a Notice of Proposed Rulemaking and help the department to move forward with rulemaking in a timely manner.

“The nature of the questions makes it clear that the current Administration and Secretary of Labor want additional input on these questions, and want to give due consideration to the impact these regulations will have on all employers,” said Byrona Maule, Director and Co-Chair of Phillips Murrah’s Labor & Employment Practice Group. “Replies to these questions are one of the key ways that the Administration can gauge how the regulation will impact companies.”

The public will have a 60-day public comment period from the date the RFI is published in the Federal Register.

  • For a sneak peak at the questions, which will be published in the Federal Register tomorrow, click here.
  • To view instructions on submitting public comments contained in the RFI document, which you can view here.
  • Comments may also be submitted electronically at http://www.regulations.gov.

 

USDOL Reinstates Wage & Hour Opinion Letters

The U.S. Department of Labor announced today that they will reinstate the issuance of opinion letters, which had been replaced in 2010 by issuance of USDOL general guidance. This action allows the USDOL’s Wage and Hour Division to use opinion letters as one of its methods for providing guidance to covered employers and employees.

Opinion letters are official opinions written by the Wage and Hour Division (WHD) of how to apply rules related to the Fair Labor Standards Act and other statutes in specific circumstances presented by an employer, employee or other entity seeking clarity. Opinion letters had been the general practice for seeking clarity since the Fair Labor Standards Act’s inception in 1938.

“By using the opinion letters, laws can be interpreted differently without the need of going through the administrative process,” explains Byrona J. Maule, Phillips Murrah Director and Co-Chair of the Firm’s Labor and Employment Practice Group.

This comes on the heels of the action taken by USDOL earlier this month, which withdrew two Obama-era guidance letters that sought to clarify worker classifications regarding independent contractors and joint employment.

U.S. Secretary of Labor Alexander Acosta in today’s release:

“Reinstating opinion letters will benefit employees and employers as they provide a means by which both can develop a clearer understanding of the Fair Labor Standards Act and other statutes. The U.S. Department of Labor is committed to helping employers and employees clearly understand their labor responsibilities so employers can concentrate on doing what they do best: growing their businesses and creating jobs.”

USDOL also announced a website portal whereby those seeking clarity can search for existing guidance or submit a request for an opinion letter. Today’s release explained: “The webpage explains what to include in the request, where to submit the request, and where to review existing guidance. The division will exercise discretion in determining which requests for opinion letters will be responded to, and the appropriate form of guidance to be issued.”

Employers should be vigilant in reviewing the opinion letters issued by the USDOL for trends and reversals of prior legal positions.

Visit this link to view currently published opinion letters: Wage and Hour Division (WHD) Opinion Letters – Fair Labor Standards Act

 


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USDOL withdraws 2015 and 2016 informal guidance on joint employment and independent contractors

On Wednesday, June 7, 2017, the U.S. Department of Labor’s Office of Public Affairs announced the withdrawal of recent guidance regarding joint employment and independent contractors.

OPA News Release:
June 7, 2017 [link] WASHINGTON – U.S. Secretary of Labor Alexander Acosta announced the withdrawal of the U.S. Department of Labor’s 2015 and 2016 informal guidance on joint employment and independent contractors. Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law. The department will continue to fully and fairly enforce all laws within its jurisdiction, including the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.

The Administrator Interpretation Letters – Fair Labor Standards Act, which have been withdrawn are:

  • FLSA 2015-1: “The Application of the Fair Labor Standards Act’s ‘Suffer or Permit’ Standard in the Identification of Employees Who Are Misclassified as Independent Contractors”
  • FLSA 2016-1: “Joint employment under the Fair Labor Standards Act and Migrant and Seasonal Agricultural Worker Protection Act”

What does this mean for employers?

For employers, this means:

  • Joint employment and independent contractor status are no longer reviewed by the DOL under these previous Administrator’s Interpretations
  • Employees no longer have FLSA 2015-1 and FLSA 2016-1 to cite before the courts.

However, the Administrator’s Interpretations relied upon case law, statutes and regulations that are still good law.  Further, how the courts define joint employment and identify misclassified independent contractors has not changed because the common law, statutes and regulations are still in effect.

The definition of joint employment may depend on the state and federal Circuit Court where the employer is located. Independent contractor status is also defined by the FLSA, common law, statutes, and regulations as well as state law. Some states may have a different standard for independent contractors and joint employment.

Employers should consult with their attorney regarding questions about classifying independent contractors, joint employment and state laws that may vary. Although the removal of the DOL Administrator’s Interpretations is not a change in the law, it may indicate a change in DOL enforcement in these two areas. Stayed tuned for more information or changes from the DOL.