Now that the USDOL has established $35,000 per year as the new threshold for exempt status, several groups have already taken shots at that new salary level. The deadline for comments has ended and we will see what happens. However, worker advocate groups have assailed the rule and urged the agency to revert back to the Obama level of approximately $47,000. On the other hand, some small business owners decry this new level, asserting it…

This is a very interesting case.  A group of nurses at a Texas hospital claimed they their employer intended to pay them an annual salary rather than an hourly rate and thus they were owed no back wages.  They won in the lower court and appellate court but, now, the Texas Supreme Court has reversed, finding that there was insufficient evidence to substantiate that allegation.  The case is entitled McAllen Hospitals LP et al. v.…

I have blogged numerous times about these automatic lunch deduction cases and have suggested remedies.  Yet, these cases proliferate.  Another very recent example is that of a hospital that has agreed to pay more than $4,000,000 to settle a FLSA collective action where the workers allege that their employer violated the Fair Labor Standards Act by automatically deducting a thirty-minute lunch break, every day, whether or not the employees allegedly worked through lunch.  The case…

The issue of independent contractor is in the forefront of today’s legal scene, on numerous fronts.  There is also an issue with changing technology and its impact on these thorny issues. Now, the USDOL has issued an Opinion Letter addressing this issue as concerns the so-called gig economy.  The Opinion Letter focuses on individuals who work for a gig economy platform that links up service providers with clients; the Opinion Letter concludes that they are…

When the Department of Labor, whether USDOL or a state agency, issues an Opinion Letter on a certain topic/issue or follows a consistent course of conduct vis-à-vis a particular employer, that employer is allowed to rely on that letter or administrative practice or enforcement policy.  The Opinion Letter or consistent practice then acts as a bar against a lawsuit or claims that the employer owes overtime or owes the employee(s) other monies. The so-called “good…

The USDOL has proposed a new cut-down (watered down?) test for determining when entities are a joint employer.  Such a finding leads to the aggregating of employee hours which are worked at both places as well as rendering the entities jointly liable for wage-hour (e.g. overtime) violations. The focus of the new proposal is a four-factor test to determine whether two (or more) businesses qualify as a joint employer: The power to hire and fire,…

Even the most well-intentioned employer who wants to comply with the FLSA will have trouble, as there are many gray, nuanced provisions and regulations in this law, especially on overtime computation.  One of these is the requirement to include non-discretionary bonuses in the overtime calculation of non-exempt workers.  That may now be changing as the USDOL has issued a notice of proposed rulemaking, one proposal of which states that employers do not have to include…