US-Department-of-Labor-logo.jpgYesterday, a group of 21 states filed a lawsuit in the United States District Court for the Eastern District of Texas challenging the Department of Labor’s new overtime rule, which is set to take effect on December 1, 2016.  The group challenging the rule is led by Texas and Nevada, and includes the following states:  Alabama, Arizona, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Nebraska, New Mexico, Ohio, Oklahoma, South Carolina, Utah, and Wisconsin. The lawsuit names as Defendants the DOL and its Wage and Hour Division, Secretary of Labor Thomas Perez, and Wage and Hour Administrator David Weil, and Assistant Administrator for Policy Mary Ziegler.

As most know by now, in May 2016, the DOL issued its final rule establishing a new minimum salary threshold for the white collar exemptions (executive, administrative, and professional) under the Fair Labor Standards Act (FLSA). This new threshold of $913 per week ($47,476 annualized) more than doubles the current minimum weekly salary threshold of $455 per week ($23,660 annualized), and is scheduled to increase every three years.


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Yesterday, the United States Supreme Court issued its long-awaited decision in the Encino Motorcars, LLC v. Navarro case, that many hoped would resolve the issue as to whether Service Advisors at auto dealerships are exempt from the overtime provisions of the Fair Labor Standards Act (FLSA).  As we reported back in January 2016, the Supreme Court agreed to hear a petition filed by an auto dealership, Encino Motorcars, challenging a Ninth Circuit decision holding that Service Advisors were not exempt from overtime pay requirements.  Encino asked that the Court “restore uniformity” in legal precedent and hold that Service Advisors are exempt from the FLSA’s overtime pay requirements.  Auto dealers were hoping that the Supreme Court would bring certainty to this issue and follow prior decisions from the Fourth and Fifth Circuits holding that Service Advisors are salespeople exempt from overtime, instead of following the Ninth Circuit’s contrary decision.  Although the Supreme Court ultimately vacated the Ninth Circuit’s decision, the Court’s opinion leaves the issue open to further consideration.
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The National Labor Relations Board (“NLRB” or the “Board”) has once again weighed in on employer use of confidentiality and non-disparagement language, this time in the settlement arena. Recently, the NLRB withheld its approval of a global settlement of Fair Labor Standards Act (“FLSA”) claims and Board charges, stating its objection to the negotiated non-disparagement and confidentiality provisions in the parties’ settlement agreement.

The employer, Liberato Restaurant, agreed to a $1 million settlement of an FLSA class action lawsuit brought by current and former employees who alleged non-payment of tips and overtime wages.  As part of the settlement, plaintiffs agreed to dismiss charges filed with the NLRB. The settlement agreement included promises by both parties to not disparage the other and not to disclose the terms of the agreement to the public. Such provisions are routinely included in settlement agreements, and have been accepted in settlements involving wage and hour claims.


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We recently received a question regarding whether an employer could classify certain IT employees as exempt under the Computer Employee exemption. With the long-awaited final DOL overtime rules for the white collar exemptions yet to make their appearance, we thought this would be a good opportunity to switch gears and remind you of the general

In an interesting turn of events and what I’m sure will be gratifying for some employers, the Department of Labor has agreed to pay Gate Guard Services $1.5 million to settle claims involving the DOL’s overly aggressive and bad faith tactics in investigating whether Gate Guard’s gate attendants were improperly classified as independent contractors under

Agencies and other third-party employers of live-in household employees and home companionship providers, take note: the long-delayed regulations reclassifying many of these workers as non-exempt employees entitled to minimum wage and overtime under the FLSA are now in effect. 

Since 1974, the FLSA has included an exemption for certain categories of domestic service workers, including