The Department of Labor (“DOL”) today rescinded its prior guidance that made the tip credit unavailable for tipped employees who spend more than 20% of their time performing allegedly non-tip generating duties. The 20% limitation, contained in an internal DOL Field Operations Handbook, spawned numerous so-called “80/20” lawsuits, claiming servers spent too much time performing allegedly non-tipped … Continue Reading
Focusing on education to ensure compliance with the Fair Labor Standards Act, on August 28, 2018 Secretary of Labor Alexander Acosta announced the creation of the DOL’s new Office of Compliance Initiatives (OCI). That office has launched two new websites, one to provide employers with resources to assess wage and hour compliance, and the other to … Continue Reading
In furtherance of a practice reinstituted earlier this year, on August 28, 2018 the DOL’s Wage Hour Division (WHD) issued four new opinion letters covering FLSA topics. The current administration began that practice when, in January of this year, it reinstated seventeen opinion letters originally issued during the George W. Bush administration but subsequently withdrawn … Continue Reading
The Restaurant Law Center, a public policy affiliate of the National Restaurant Association, has filed suit against the Department of Labor and its Wage and Hour Division, seeking to declare unlawful the DOL’s 2012 revision to its Field Operations Handbook, purporting to establish, through sub-regulatory guidance, the “80/20” tip credit rule or “20% Rule.” Restaurant … Continue Reading
(Updated 4/12/2018) Last month, the DOL announced the Payroll Audit Independent Determination program (“PAID”), a self-auditing program designed to encourage employers to uncover and voluntarily report potential minimum wage and overtime violations and avoid the risk of penalties or liquidated damages that would be imposed if the Agency discovered the violations in the first instance. … Continue Reading
This week the Department of Labor issued new guidance, in a “Field Assistance Bulletin,” on the recent amendment to the FLSA regarding tip sharing. The recent amendment to the FLSA (which was included in the omnibus budget bill) bars “supervisors or managers” from retaining tips but expressly allows tipped workers to share tips with non-tipped … Continue Reading
Mistakes happen. But when those mistakes result in a violation of the Fair Labor Standards Act, what is an employer to do? Pay twice the amount of wages owed to cover both back wages and an amount equal to liquidated damages? Hope no one notices? Well, thanks to the Wage and Hour Division (WHD) of … Continue Reading
The U.S. Department of Labor confirmed on October 30, 2017 that it intends to “undertake new rulemaking with regard to overtime.” While the DOL simultaneously filed an appeal of the district court order holding the prior overtime rule invalid, the DOL stated it intends to request that the Fifth Circuit “hold the appeal in abeyance … Continue Reading
In recent years, one significant issue that has plagued industries employing tipped employees is whether the employers must ensure that tipped employees retain all of their tips even if the company is not using the employee’s tips to satisfy part of the minimum wage pursuant to the FLSA’s “tip credit” provision, 29 U.S.C. § 203(m). … Continue Reading
Today the Trump Administration, through the Office of Management and Budget’s Office of Information and Regulatory Affairs, released the federal government’s semi-annual Unified Agenda of Regulatory and Deregulatory Actions. This agenda provides public notice of the regulatory actions the various agencies of the Executive Branch anticipate taking in the coming year. Among the items listed … Continue Reading
The U.S. Department of Labor announced today that it will reinstate the Department’s long-standing practice of issuing opinion letters to employers and employees regarding application of the Fair Labor Standards Act. The Obama Administration eliminated opinion letters in favor of broader “Administrator Interpretations,” but those were few and far between. “The letters were a division … Continue Reading
The New York State Department of Labor (NYSDOL) has appealed the Industrial Board of Appeals decision that invalidated and revoked final regulations issued by the NYSDOL which would have significantly restricted the use of payroll debit cards and imposed new disclosure and consent requirements for direct deposit. The regulations (12 NYCRR §192) were to become … Continue Reading
The Fifth Circuit granted the government’s request for additional time to file its final reply brief in the pending appeal of a nationwide injunction issued by a Texas District Court Judge, blocking the DOL’s controversial overtime rule raising the required salary level for the white collar exemptions. The final reply brief will not be filed … Continue Reading
The government has asked for another delay in submitting its final brief to the Fifth Circuit Court of Appeals regarding the DOL’s Final overtime rule, which raised the salary level for the white collar exemptions from $23,660 to $47,476. The final reply brief was scheduled to be filed on May 1, 2017, after two earlier … Continue Reading
An online ticket broker that sells tickets to concerts, sporting events, and the theater qualifies as a “retail or service establishment” under Section 207(i) of the Fair Labor Standards Act (“FLSA”), Judge John Lee of the United States District Court for the Northern District of Illinois held. Blahnik v. Box Office Ticket Sales, LLC, 2017 … Continue Reading
The appeal regarding the validity of the federal overtime rule will not be fully briefed until May 1, 2017, according to an order issued by the Fifth Circuit on February 22, 2017, granting an unopposed request by the Department of Justice for an extension. When the Department of Labor first appealed the nationwide injunction issued … Continue Reading
Before the election the Department of Labor asked the Fifth Circuit Court of Appeals to expedite its appeal regarding the validity of the DOL’s Final Rule, which increased the salary level for the white collar exemptions. Earlier this week, however, following the inauguration of President Trump, the Department of Labor made the opposite request, asking … Continue Reading
Earlier today, the Department of Labor filed an unopposed motion to extend the deadline for its next submission in support of its appeal of the salary basis rule injunction. The motion for extension requested until March 2, 2017 to submit the Department’s reply brief to the Fifth Circuit, and expressly stated that the extra time … Continue Reading
In the latest round in the litigation between 21 States, led by the State of Nevada, and the Department of Labor regarding the Final Rule, the State Plaintiffs filed their appeal brief today with the Fifth Circuit, urging the Court to affirm the district court’s order, which issued a nationwide injunction blocking the rule. “As … Continue Reading
Sen. Bernie Sanders, along with twenty-five other members of Congress, have filed an amicus brief in the Fifth Circuit Court of Appeals urging the Court to reverse the injunction issued by a Texas federal judge enjoining enforcement of the Department of Labor’s recent increase to the salary basis threshold for the white collar exemptions under … Continue Reading
The Texas AFL-CIO recently filed a motion to intervene as a defendant in the action filed against the Department of Labor (DOL) regarding its highly publicized regulation expanding overtime coverage. Fearing the DOL under President-Elect Donald Trump might abandon its appeal to the Fifth Circuit of a nationwide preliminary injunction issued by a Texas District … Continue Reading
On December 2, one day after filing its appeal of the preliminary injunction blocking its new salary basis regulations, the DOL filed a request for expedited briefing and oral argument in the appeal. The DOL has requested that the Fifth Circuit Court of Appeals set an expedited schedule whereby briefing would be complete on February … Continue Reading
In a stinging defeat to the Obama Administration, a district court in Texas today issued a nationwide preliminary injunction blocking the DOL’s Final Rule which seeks to raise the required salary level to qualify for the white collar exemptions. An article discussing the decision in more detail and the ramifications for employers will be posted … Continue Reading
Jackson Lewis Principal Eric Magnus contributed to this post. The U.S. Department of Labor regulations raising the required salary level for the white collar exemptions (executive, administrative, and professional) under the Fair Labor Standards Act are scheduled to become effective December 1, 2016. Since the results of Tuesday’s election, some employers are considering whether to … Continue Reading
