DOL Withdraws Obama Era Interpretations On Independent Contractors and Joint Employment

Posted in DOL News, Independent Contractors, Joint Employment
Former link to AIs on U.S. DOL website returns "Page Not Found"

Former link to AIs on U.S. DOL website returns “Page Not Found”

On June 7, Secretary of Labor Alexander Acosta announced the withdrawal of two Administrator Interpretations (“AIs”) issued under the Obama administration regarding joint employment and independent contractors. We previously discussed the AI on independent contractors here, and the AI on joint employment here and here. Critics of the AIs argued that they amounted to an attempt by the Department of Labor to expand employer liability under the Fair Labor Standards Act without Congressional action or notice-and-comment rule making. For its part, the Obama Labor Department took the position that it was merely providing guidance on existing legal standards.

The DOL gave little in the way of explanation for Secretary Acosta’s withdrawal of the AIs, offering only a three sentence press release:

WASHINGTON – U.S. Secretary of Labor Alexander Acosta today announced the withdrawal of the U.S. Department of Labor’s 2015 and 2016 informal guidance on joint employment and independent contractors.  Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law. The department will continue to fully and fairly enforce all laws within its jurisdiction, including the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.

So what does this mean for employers? For most, probably not much. Withdrawal of the AIs certainly indicates that the DOL under Secretary Acosta will be less aggressive in pushing the boundaries of existing law through its enforcement efforts and in court. Businesses that rely on franchise models, temporary employees and contractors can likely breath somewhat easier.

However, as the DOL’s press release notes, withdrawal of these AIs “does not change the legal responsibilities of employers under the Fair Labor Standards Act.” While the AIs represented a broad view of the employment relationship, they were still rooted in existing law and based their analysis on well-established tests for joint employment and independent contractor status. Those basic tests have not changed, and courts were never bound to follow the DOL’s preferred interpretations of the law. Private litigants can still pursue joint employment and independent contractor misclassification claims based upon the interpretations in the withdrawn AIs, and courts may accept some of their arguments. Further, the U.S. DOL’s actions have no direct effect on employer’s parallel obligations under state or local laws governing minimum wage or overtime.

 

 

 

Do I have to pay employees to run a 5K? [Wage & Hour FAQ]

Posted in Wage and Hour FAQs

Race shutterstock_271417229Q. Our company would like to enter a team in a local 5K charity race to do some good for the community and provide some positive PR for the company. Do we have to pay employees for time spent in this activity?

A. With the summer season upon us lots of employers are thinking about civic engagement, whether it is entering a 5K, joining a charity golf tournament, or getting a group together to perform volunteer work. Some employers conduct these activities during the workday and pay employees for their time as the employer’s contribution to the community. Others, however, may want to encourage employees to participate in additional activities outside of the workday, perhaps by paying entry fees, providing team T-shirts, or making charitable donations in support of the event. If we’re talking about employees who are properly classified as exempt executive, administrative or professional employees, then no, employers don’t have to pay extra for this time. For non-exempt employees, the answer depends on the facts.

29 C.F.R. 785.44 says the following with respect to employees engaged in civic and charitable work:

Time spent in work for public or charitable purposes at the employer’s request, or under his direction or control, or while the employee is required to be on the premises, is working time. However, time spent voluntarily in such activities outside of the employee’s normal working hours is not hours worked.

So, to break it down: if employees voluntarily form a team for a local race or get together to volunteer at the food depository outside of working hours, you don’t have to pay them for their time. The company can even provide some support and sponsorship without running afoul of the law, again as long as the activity is completely voluntary and outside of working hours.

However, if the activity occurs during an employee’s normal workday, or if the employer goes beyond offering support to actually request or direct an employee to participate, it may cross the line from voluntary charitable activity to work.

For example, suppose that upon deciding that you want to enter your team in the 5K, you specifically ask one employee if she would head up the effort of recruiting and organizing a team. She agrees and does so. While the other employees running in the race may be volunteers, your team leader is arguably participating “at the employer’s request,” and should therefore be paid for her time.

Or suppose that after volunteers sign up for the race, you specifically ask one of the participating employees, who you know to be a photo enthusiast, to take photos of the event and an after party for the participants for use in on the company’s social media pages. The employee does as requested and spends additional time after the event editing the photos. Again, because the work is requested by the company, this may constitute work time for which the employee is to be paid.

So, how can employers avoid having charitable activities classified as work time?

  • Schedule charitable or civic activities outside of employees’ normal work hours.
  • Make it clear that participation is completely voluntary. Inviting participation is OK, but don’t single out individuals to ask them to participate, and don’t make participation a component in performance evaluations, compensation, or other employment decisions. Also make sure that your managers understand that what they see as a “request” might feel more like a directive to employees.
  • Avoid asking employees to perform tasks associated with a charitable event that are mainly for the benefit of the company, such as hosting an employee social event, engaging in promotional activities for the company, or taking photos or video. This doesn’t mean that you have to pay every employee who happens to share a selfie of the event on Facebook, but employees who put in more than de minimus work for the company’s benefit  should be paid for their time.
  • If the company does need someone to perform work related to an event, tap bona fide exempt employees for those tasks, or hire outside help.

 

 

Restaurants: Do your employees know that you take the tip credit?

Posted in Tip Credit

Tip-Hand11366723.jpgIf not, you might have a problem.

In 2011, the U.S. DOL published a regulation mandating that restaurants who count tips toward the minimum wage as permitted under the Fair Labor Standards Act have to notify employees that they are taking the credit. (See U.S. DOL Fact Sheet #15 for more information on the current requirement.) Last week, a federal district court in Pennsylvania ruled that a former bartender at Cadillac Ranch All American Bar & Grill could move forward with a hybrid state law / FLSA class/collective action, alleging that the restaurant chain violated the DOL’s notice regulation by failing to tell tipped workers that their wages would be calculated using the tip credit. According to the court’s opinion, the class includes approximately 220 current and former tipped employees. Koenig v. Granite City Food & Brewery, Ltd.

In and of itself, this decision is not particularly surprising or ground-breaking, but that is exactly why it should worry restaurants and other employers of tipped employees. There are certainly areas of business where an informal, “good enough” approach is in fact good enough. Wage and hour law is not one of those areas. The FLSA and state wage and hour law are all about technicalities, which is why they are perfect traps for unwary employers and great sources of business for lawyers.

So, restaurant owners and operators, take heed: If you are not presently notifying all of your employees that you will be taking a tip credit to comply with minimum wage requirements under the FLSA, you may owe all of your tipped employees the difference between the “tipped” minimum wage ($2.13 per hour) and the minimum wage for non-tipped employees ($7.25 per hour), or a total of $5.12 for every hour worked. Over a period of two to three years. Plus liquidated damages (doubling the amount owed) and attorneys’ fees. State law may further increase the liability. If this situation sounds familiar, reach out to your employment counsel today to find out how to protect your business.

 

Do School Employees Get Overtime For Occasional Extra Duty? [Wage & Hour FAQ]

Posted in Overtime, Public Employees

FAQs17489126.jpgQ. Our school district has hourly, non-exempt employees who occasionally perform extra work for the district – for example, chaperoning a school dance, or taking tickets at home games. Do we need to track the hours that employees perform on these tasks and pay them overtime if their total work hours go over 40 for a single week?

A. Usually, when an employee works more than one job for an employer, the rule under the FLSA is that the employer must aggregate all of the employee’s work hours for each workweek. If the employee’s total hours go over 40, they’re entitled to overtime pay, even if the extra work was in a separate job and completely voluntary on the part of the employee. (See our earlier post on this subject for a more detailed discussion.)

However, Section 7(p)(2) of the FLSA creates a limited exception to this rule for state and local government employees. Three conditions have to be met in order for this exception to apply: Continue Reading

Trump Names New Nominee for Secretary of Labor

Posted in Trump Administration

Yesterday, President Trump’s then nominee for Secretary of Labor, Andy Puzder, withdrew his nomination ahead of his confirmation hearing given the increasing opposition to his nomination by both parties. Less than 24 hours later, President Trump announced Alexander Acosta as his new choice for Secretary of Labor. Mr. Acosta is currently the dean of Florida International University College of Law but has experience in both the public and private sector. Some of Mr. Acosta’s prior positions include being appointed by President George W. Bush to serve as a member of the National Labor Relations Board, his appointment to the role of Assistant Attorney General for the Civil Rights Division of the Department of Justice, and a high profile role as U.S. Attorney for the Southern District of Florida. If confirmed, Mr. Acosta will be the first Hispanic member of President Trump’s cabinet.

It’s too early to tell what type of agenda we could see from the DOL if Mr. Acosta is confirmed but he likely will be a little more worker-friendly than Mr. Puzder. We will continue to update you as more information becomes available regarding Mr. Acosta.

Trump leaves DOL OT rules on life support - For Now

Posted in *New Exemption Rules, Trump Administration

President Trump has had a busy week since his inauguration: ordering construction of a wall, starting to unwind the ACA, arguing with the media about how many people attended his inauguration – the list goes on. One thing that he has not yet gotten to is the U.S. DOL’s stalled overtime exemption rules. Right now the rules remain in limbo, temporarily suspended by order of a U.S. District Court in Texas. That order is now on appeal to the 5th Circuit Court of Appeals. Earlier this week, the Department of Justice, representing the DOL in the case, asked the 5th Circuit to extend the due date for the government’s brief in the appeal by 30 days “to allow incoming leadership personnel adequate time to consider the issues.” The coalitions of states and business groups opposing the new rules, not surprisingly, did not oppose that request.

While the new administration has not yet taken an express position on the issue, President Trump has railed against regulations seen as hampering business, and he nominated a vocal critic of the rules, fast food CEO Andy Puzder, to lead the Department of Labor. However, because the rules were passed through a process of “notice and comment” rulemaking, the Trump Administration cannot simply reverse them with the stroke of a pen without going through the same lengthy process of publishing proposed rules, seeking public input, and then issuing final regulations. One way to avoid that process would be to direct the Department of Justice to drop its defense of the pending lawsuit and admit that the rules were improper, allowing the court’s injunction to become final. However, even that might not be the end of the story, as the AFL-CIO has asked for leave to step in and defend the final rules should the government try to bow out.

In short, employers are still stuck right where they’ve been since November. The rules are on life support and it’s likely that the Trump Administration or Congressional Republicans will pull the plug in one way or another sometime soon. But we don’t know exactly when, and we can’t yet completely rule out the possibility of an unexpected recovery that would allow the rules to take effect – possibly retroactive to December 1, 2016.

For more on how changes ushered in by the new administration will affect the workplace, check out our firm’s Navigating Change portal. 

So Long, Secretary Perez: DOL Head's Goodbye Message

Posted in State Regulation, Trump Administration

Last week, outgoing Secretary of Labor Thomas Perez released a farewell “Memorandum to the American People.” It mostly reads as a recap of the DOL’s news releases over the past several years, touting various DOL initiatives and advocating for further changes, like increasing the minimum wage and mandating paid family leave. The memo must strike a bittersweet note for proponents of the current DOL’s direction. One can pretty safely infer that most of the progressive proposals discussed in the memo – other than perhaps some form of paid maternity leave – are going precisely nowhere under the incoming Trump administration. To the contrary, most observers expect the DOL to roll back many Obama-era changes under the leadership of Trump’s pick for labor secretary, fast-food executive Andy Puzder. If, that is, Congressional Republicans don’t beat them to the punch.

That reality is certainly what prompts the most interesting part of the farewell memorandum, which is its repeated references to action at the state and local levels. For example, the memorandum lauds the fact that 18 states have increased their minimum wages since President Obama called for a minimum wage hike in 2013. It also applauds new state and local family and sick leave laws, noting that the DOL has supported state and local action through “several rounds of paid-leave analysis grants to hep state and local officials examine the feasibility of establishing or expanding paid leave policies.”

Secretary Perez goes on to encourage state and local governments to continue this trend:

While we wait for Congress to act, City and state governments should continue their progress in these areas, and voters should continue to exercise their voices in favor of higher wages and more supportive workplace policies, as voters in several states did this year.

In this area at least, Secretary Perez is likely to get his wish, at least in certain parts of the country. This is a legal blog, not a political one, so I’ll leave the debate over whether paid leave and increased minimum wages are good public policy to the economists and politicians. What I can say with some degree of certainty is that this growing patchwork of state, county and city mandates is making things more complicated for employers. Greater complexity means greater opportunity for errors, greater legal risk, and higher legal costs. All of this may or may not benefit workers and the economy, but it’s at least good news for employment lawyers.

OT Exemption Rules Lawsuit Will Proceed Despite Appeal

Posted in *New Exemption Rules, Litigation

Judge Amos Mazzant of the U.S. District Court for the Eastern District of Texas has decided that he will not halt the lawsuit challenging the U.S. DOL’s new overtime exemption rules pending a ruling from the 5th Circuit Court of Appeals on his earlier order temporarily blocking the rules from taking effect.

Here’s a quick recap of where things stand and what this means:

On November 22, the District Court granted a nationwide preliminary injunction blocking the rules from taking effect on December 1. This was not a final ruling in the case, but in order to grant the injunction, Judge Mazzant had to find that the states and business groups challenging the rules had a “substantial likelihood of success on the merits of their claims.”

On December 1, the DOL appealed the District Court’s ruling to the 5th Circuit Court of Appeals. Briefing in that appeal is scheduled to be completed by the end of January, with oral argument shortly thereafter. Assuming, that is, that the Trump Administration doesn’t direct the DOL to withdraw the appeal upon taking office. If that happens, the AFL-CIO could step in to defend the rules if the court grants its motion to intervene.

Because the ruling on appeal was not a final judgment in the case, the default rule is for the lawsuit to move forward in the District Court even while the preliminary injunction is being challenged on appeal. However, the District Court has discretion to stay the lawsuit until the Court of Appeals rules. The DOL asked the District Court to do just that, hoping that it might fare better in the Court of Appeals than it did in the preliminary injunction ruling. Judge Mazzant rejected that motion, finding that the DOL’s motion failed “present a substantial case on the merits” demonstrating that the preliminary injunction was improperly issued. Once again, this is not a final ruling on the merits, but like the initial ruling on the motion for preliminary injunction, it does seem to signal that the judge does not think highly of the Department of Labor’s position in defense of the new overtime rules.

So now what? The District Court could issue its final ruling on the merits of the lawsuit at any time. If it does so before the 5th Circuit rules on the motion for preliminary injunction, it may re-start the appeal process. Of course, the Trump administration may direct the DOL to withdraw its defense of the new rules before the courts decide the issue (and the court could deny the AFL-CIO’s motion to intervene), or Congress may short-circuit the whole process by taking action to block the rules. In short, not much has changed since before the holidays.

 

Penn Students Seek Rehearing, DOL Files Brief in OT Rules Appeal

Posted in *New Exemption Rules, Higher Education, Litigation

Just a quick update on a couple of our recent stories for you wage and hour litigation junkies:

Back on December 5, a three-judge panel of the 7th Circuit Court of Appeals affirmed dismissal of a case in which two former University of Pennsylvania student athletes claimed that they and other intercollegiate athletes were employees entitled to minimum wage under the FLSA. (Read our prior post on the decision for more information.) Undeterred, the students are now asking the full 7th Circuit to rehear their case. They argue, among other things, that the district court and the appellate panel erred in dismissing their complaint without allowing them to develop a factual record to support their claims.

The litigation over the FLSA overtime exemption rules marches on. (See the *New Exemption Rules section of the blog for the complete history.) The U.S. Department of Labor filed its initial brief yesterday, December 15. Briefing will continue through January, with a decision in late February or early March at the earliest. Assuming, that is, that the Trump administration and Congress don’t pull the plug before then.

AFL-CIO Seeks To Intervene In Overtime Rules Court Fight

Posted in *New Exemption Rules

The pending court fight between the U.S. DOL and a coalition of states and business groups over the new overtime exemption rules will not be resolved before President Obama leaves office in January, even though the 5th Circuit Court of Appeals has now granted the DOL’s motion to set an expedited briefing schedule on its appeal from a preliminary district court order blocking the rules from taking effect. While we don’t know for sure what position the Trump administration will take on the new rules, the nomination of fast-food executive Andy Puzder as Secretary of Labor seems to be a pretty clear sign. Puzder has been a vocal critic of the new rule.

Anticipating that the DOL will be less than vigorous in its defense of the rule once President Trump takes office, the Texas AFL-CIO has filed a motion to intervene in the lawsuit so that it can carry on in the DOL’s place should the administration change its position. The court has yet to rule on the motion, so we don’t know whether the labor organization will be permitted to defend the new rule in court.

For those taking bets, this somewhat increases the odds that the rules may take effect at some point notwithstanding the results of the election. However, there are still multiple ways in which they might be permanently blocked. At this point, the only sure bet is that employers will be stuck in limbo for at least the near term.

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