Jason E. Reisman
Boom—take that, Pennsylvania employers!
As a result of Governor Wolf’s battle with the Pennsylvania Republican-controlled legislature being at an impasse over a potential state minimum wage increase, the Governor pressed the Commonwealth’s Independent Regulatory Review Commission (“IRRC”) to approve his administration’s previously proposed increase to the salary threshold for the so-called “white collar exemptions” under the Pennsylvania Minimum Wage Act (“PMWA”). Last week, the IRRC voted 3-2 to approve the proposed rule—which is the last regulatory step before the increases to the salary threshold would become effective (though it is unclear at this time when the rule will formally be effective, as we believe it first requires review and approval from the Attorney General).
Governor Wolf first introduced the proposed salary threshold increase in the summer of 2018, after facing repeated rejections of his efforts to raise the Commonwealth’s minimum wage from the federal minimum of $7.25 per hour to at least $12 per hour. The proposed rule has had somewhat of a long and winding road to get to today—but, nonetheless, it now appears primed for implementation. Continue reading “PA Approves White Collar Salary Threshold Increases—Leaves FLSA in the Dust”
Jason E. Reisman
Just yesterday, the Pennsylvania Supreme Court issued a decision in a case involving the “fluctuating work week” (“FWW”) method of paying overtime that has been percolating in the Commonwealth courts for almost six years. The Pennsylvania high court held that, although the U.S. Supreme Court has confirmed the validity of the FWW method under the Fair Labor Standards Act (“FLSA”), Pennsylvania has not incorporated it into state law; and its use in Pennsylvania is therefore not permitted.
The case is Chevalier v. General Nutrition Centers Inc. In it, the Pennsylvania Supreme Court upheld a $1.7 million judgment against General Nutrition Centers (“GNC”) in favor of a class of former store managers who had alleged they were shorted on overtime pay. GNC had used the FLSA’s FWW method, which allows employers to pay employees whose hours fluctuate from week to week a salary that is intended to compensate them for all of the hours worked each week. If the employees work more than 40 hours in a week, then the designated salary is divided by the total number of hours worked that week to calculate the “regular rate,” which is then divided in half and multiplied by the number of overtime hours to compensate the employees for the additional overtime pay due.
Okay, enough math for this blog—basically, the FWW method allows employers to pay overtime at a “half-time” rate because the underlying salary pays for all straight time due for the hours worked. (Note for math geeks: the FWW method causes employees to see a lower effective hourly rate and overtime rate as they work more hours.) This “half-time” method of paying overtime pay conflicts with the Pennsylvania Minimum Wage Act’s requirement that overtime compensation be 1.5 times the regular rate of pay—at least that’s what the state supreme court found.
So, as a side note for Pennsylvania employers, there’s no need to concern yourselves with the brand-new proposed rule on the FWW method issued earlier this month by the U.S. Department of Labor.
Our “simple” advice moving forward: Don’t use the FWW method for employees in Pennsylvania.
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”
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!
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!”
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?”
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)!
Emery Gullickson Richards
The U.S. Supreme Court’s decision in Epic Systems Corp. v. Lewis has significant ramifications for the scope of class action waivers in employee arbitration agreements. In each of the three consolidated cases that the Court’s opinion addressed, the plaintiffs were pursuing class/collective actions with Fair Labor Standards Act (“FLSA”) claims for unpaid overtime. Plaintiff Sheila Hobson’s FLSA claim in the Murphy Oil case had been dismissed by the trial court as a result of the arbitration provision in the employment agreement she signed when she started work at a gas station in Alabama. By contrast, plaintiff Jacob Lewis, a technical communications employee, had overcome a motion to dismiss his FLSA overtime class action in the Epic Systems case by arguing that a class action waiver in an arbitration agreement that had been emailed to him by his employer was unenforceable. In the Ernst & Young case, plaintiff Stephen Morris sought unpaid overtime under the FLSA and the California Labor Code for working long hours during audit season. As a result of the Supreme Court’s ruling, after remand, all of these claims now appear destined for arbitration unless they are resolved. The Epic Systems decision represents a broader affirmation, however, that arbitration agreements are enforceable regardless of the nature of an employee’s claim, even if the claims are brought pursuant to employment statutes that explicitly provide for class or collective actions. Continue reading “The Epic Systems Decision: Where Do Employers Go from Here?”
Emery Gullickson Richards
The Supreme Court issued a landmark decision on May 21, 2018, which has widespread implications for all employers. In Epic Systems Corp. v. Lewis, a 5-4 opinion written by Justice Gorsuch, the Supreme Court held that arbitration agreements and class/collective action waivers are enforceable, putting to rest any argument that the National Labor Relations Act prevents or limits their enforceability. The decision provides employers further options for limiting litigation risk, particularly with respect to costly wage and hour collective actions. The decision also contains important implications for employers that maintain or are considering implementing arbitration agreements in the workplace, as there is no longer any identified legal impediment to the concept of an employer requiring its employees to waive the ability to bring a class or collective action under federal, state, and local employment laws. Continue reading “Epic Shift: Supreme Court Enforces Class Action Waivers in Arbitration Agreements”