While deciding to make effective some portions of the Tipped Regulations Final Rule published in the final weeks of the former administration, the U.S. Department of Labor (DOL) has proposed further delay and consideration of the most controversial provisions of the Rule, including the elimination of the “80/20 Rule” that purports to limit the percentage of time (i.e., 20%) a tipped worker could spend performing allegedly non-tipped duties while still allowing the employer to take…

An administrative assistant, who regularly made three to five telephone calls out of state per week to her employer’s clients and vendors, may have sufficiently engaged in interstate commerce to establish “individual coverage” under the Fair Labor Standards Act (FLSA), the U.S. Court of Appeals for the Eleventh Circuit concluded. St. Elien v. All County Environmental Servs., 2021 U.S. App. LEXIS 7935 (11th Cir. Mar. 18, 2021). The Eleventh Circuit has jurisdiction over Alabama, Georgia,…

Wage and hour claims, particularly those asserting class or collective violations, comprise a significant percentage of employment law claims across the country, and Wisconsin is no exception. Improper rounding and other timecard policies frequently are the culprit in such claims against employers. Wage and hour lawsuits, whether individual or class/collective action in nature, typically are brought in Wisconsin under the federal Fair Labor Standards Act (“FLSA”), sometimes accompanied by parallel claims under state law. Such…

On March 11, 2021, the U.S. Department of Labor (DOL) issued Notices of Proposed Rulemaking (NPRMs) to withdraw the Joint Employer and Independent Contractor Final Rules published during the previous administration. The Joint Employer Final Rule The Joint Employer Final Rule went into effect in January 2020 and addressed the standard for determining whether an employee may be deemed to be jointly employed by two or more employers. The Rule instructed that joint employer liability…

In April 2020, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit held that paying an employee a set amount for each day he works (i.e. on a “day rate” basis) does not satisfy the “salary basis” component required to qualify as overtime-exempt under the Fair Labor Standards Act (FLSA), regardless of whether the employee earns the weekly minimum salary (currently, $684) required for the exemption. The panel revised its opinion…

On March 2, 2021, the U.S. Department of Labor (DOL) formally delayed the effective date of the Independent Contractor Final Rule, from March 8, 2021 to May 7, 2021. The Final Rule, published during the last two weeks of the prior administration, provides that “an individual is an independent contractor, as distinguished from an ‘employee’ under the Act, if the individual is, as a matter of economic reality, in business for him or herself.” Under…

As expected, the U.S. Department of Labor (DOL) has formally delayed the effective date of the Tip Regulations Final Rule, from March 1, 2021 to April 30, 2021. The Tip Regulations Final Rule, issued in late December 2020, implemented a 2018 amendment to the FLSA that permits tipped employees, such as restaurant servers, to pool tips with non-tipped workers, such as cooks and dishwashers, so long as the employer does not take a “tip credit,”…