Have Employers Taken Home the Iron Throne with Lamps Plus?

Caroline Powell Donelan and Taylor C. Morosco

On April 24, 2019, the U.S. Supreme Court issued its 5–4 opinion in Lamps Plus, Inc., et al. v. Varela holding that class arbitration is only allowed when the parties’ agreement explicitly allows for it. In other words, when an arbitration agreement is silent or even ambiguous as to whether class-wide proceedings are allowed, claims must be arbitrated on an individual basis.

Lamps Plus is the latest decision from our highest court bolstering the enforceability of individual arbitration in the workplace.

In this post, we’ll take a semi-deep dive into Lamps Plus and evaluate potential implications for your workplace as well as for future litigation strategies. Continue reading “Have Employers Taken Home the Iron Throne with Lamps Plus?”

Trifecta! DOL Issues Proposed “Employer-Friendly” Joint Employer Rule

Jason E. Reisman

Yesterday, the U.S. Department of Labor (“DOL”) completed the wage and hour trifecta, issuing the third of its critically acclaimed proposed rules—this one redefines (or clarifies, if you prefer) the regulations addressing the concept of “joint employment.” Joint employment under the Fair Labor Standards Act (“FLSA”) is an important concept as it often is used to hold multiple entities liable for the minimum wage and overtime violations relating to a group of employees. The existing regulations have not been materially updated in more than 60 years—needless to say, the nature and scope of business interactions have changed materially over that time. Continue reading “Trifecta! DOL Issues Proposed “Employer-Friendly” Joint Employer Rule”

DOL Pulls Ripcord—Proposed Rule Clarifying “Regular Rate” Parachutes In

Jason E. Reisman

Yesterday, as anticipated (see our prior blog post here), the U.S. Department of Labor (“DOL”) released its proposed guidance to clarify the rules regarding what is and is not required to be included in the “regular rate of pay” (“RROP”). Remember, the RROP is the rate used for the calculation of overtime pay to non-exempt workers.

Though completely unexpected when the DOL initially announced its plan to clarify these rules, employers will undoubtedly be pleased by the effort. Nothing—from the employer standpoint—is really ever perfect, but this is progress. Originally targeted to be released in December 2018, like many other DOL projects, it was delayed a bit.

According to the DOL’s announcement, this proposal attempts to clarify that employers can exclude the following from the RROP:

  • the cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes, and employee discounts on retail goods and services;
  • payments for unused paid leave, including paid sick leave;
  • reimbursed expenses, even if not incurred “solely” for the employer’s benefit;
  • reimbursed travel expenses that do not exceed the maximum travel reimbursement under the Federal Travel Regulation System and that satisfy other regulatory requirements;
  • discretionary bonuses, by providing additional examples and clarifying that the label given a bonus does not determine whether it is discretionary;
  • benefit plans, including accident, unemployment, and legal services; and
  • tuition programs, such as reimbursement programs or repayment of educational debt.

Though we’re still working our way through the proposal, we are hopeful that it actually does address certain items that have long created quagmires for employers. Of course, the proposal will be subject to 60 days of public comment. Then, once the DOL reviews all comments, it will issue a final rule. Please stay tuned for further updates as this process continues!

DOL Drops a Bomb … Err, the New Salary Threshold—$35,308!

Jason E. Reisman

Don’t say I didn’t tell you so—you read it right here on Monday: the new Fair Labor Standards Act (“FLSA”) white collar exemption salary threshold was just about to hit the street. And, guess what?

It’s arrived—just last night—and our D.C. sources (that is, BR’s “deepthroat”) from Monday’s blog were right on point, missing the final threshold number by only $308.

The Department of Labor (“DOL”) announced a Notice of Proposed Rulemaking (“NPRM”), which sets the new salary threshold that purports to make overtime pay available to another one million American workers. Remember, the last time the salary threshold was updated was in 2004, under the George W. Bush administration, which increased the threshold to $23,660 (or $455/week). Then, the Obama administration proposed to increase it to $47,476 (or $913/week)—yikes! No worries, though, a federal judge in Texas—appointed by President Obama, no less—struck down that proposed salary threshold. With the new Trump administration coming on board and promising to issue a new rule, the appeal of the Texas judge’s decision was placed on hold.

And, now, here we are Continue reading “DOL Drops a Bomb … Err, the New Salary Threshold—$35,308!”

More “Leaks” from D.C.? New DOL Salary Threshold = $35,000?

Jason E. Reisman

As I previously reported in mid-January (see my blog post here), the U.S. Department of Labor’s (“DOL”) long-awaited, updated proposal setting a new salary threshold for the Fair Labor Standards Act’s (“FLSA”) white collar exemptions finally made its way to the White House’s Office of Management and Budget (“OMB”) for review. That means the public should see it within 90 days or so.

Now, according to my D.C. sources (BR’s “deepthroat”), here’s the latest: Continue reading “More “Leaks” from D.C.? New DOL Salary Threshold = $35,000?”

Hold onto Your Hats! DOL Sends “Regular Rate” Rule for Review

Jason E. Reisman

On January 23, 2019, the Department of Labor (“DOL”) passed along another potential bombshell rule (see our prior post here on the white collar exemption salary threshold rule that’s also currently under review) to the White House Office of Information and Regulatory Affairs (“OIRA”)—this time, it’s a proposed rule to update and clarify the definition of “regular rate” under the Fair Labor Standards Act (“FLSA”). Here’s what the DOL said in its fall 2018 agenda:

The Department believes that changes in the 21st century workplace are not reflected in its current regulatory framework. … The Department is interested in ensuring that its regulations provide appropriate guidance to employers offering these more modern forms of compensation and benefits regarding their inclusion in, or exclusion from, the regular rate. Clarifying this issue will ensure that employers have the flexibility to provide such compensation and benefits to their employees, thereby providing employers more flexibility in the compensation and benefits packages they offer to employees. Similarly, the Department believes that the proposed changes will facilitate compliance with the FLSA and lessen litigation regarding the regular rate.

Once OIRA reviews the rule, it can be released to the public for comment.

Sounds fantastic, doesn’t it? Can’t wait to see what new and wonderful clarity the DOL has to offer—remember, the general rule is that the “regular rate” (which is used for the calculation of overtime pay for non-exempt employees) must include all forms of remuneration for employment, other than certain specified exceptions. We should expect some employer-favorable clarifications to those “exceptions,” which could relate to the ever-elusive concept of “discretionary bonuses,” and other compensation perks.

Get excited—the Trump DOL is working for you (employers of the world, that is)!

It’s Back!! New DOL Salary Threshold Rule Is on the Doorstep!

Jason E. Reisman

Just when you thought it was safe to go back in the water, the U.S. Department of Labor (“DOL”) reappears to address an issue that has most American employers on edge: How far will it expand the scope of who is eligible for overtime pay? After taking what seems like forever, the Trump DOL—despite the government shutdown—has apparently now completed its long-awaited revised new rule to reset the minimum salary threshold for employees subject to the Fair Labor Standards Act’s white collar exemptions.

We all remember the Obama DOL’s effort to expand overtime eligibility to four million currently-exempt employees by increasing the salary minimum by more than double, to $47,476 (which was blocked by a federal judge in Texas). The real question for now is, what has the Trump DOL decided is the “correct” new salary level? All signs point to a figure in the low to mid-$30,000s. We should find out very soon.

For now, sources are reporting that the finalized proposed new rule is about to be submitted (maybe today) to the White House’s Office of Information and Regulatory Affairs (“OIRA”) for review. This is the first step in the process before the proposed rule is released to the public for comment. Though the federal government is currently shut down, the White House is working. The last agenda issued by the DOL stated that this new rule would be released in March, so they seem to be on track for that.

So … stay tuned— “Same Bat time, same Bat channel!” More to come.