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DOL Issues Opinion Letters on Nondiscretionary Bonuses, Overtime Exemption Standards, and Rounding Time Under the FLSA

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July 1, 2019

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The U.S. Department of Labor (DOL) recently announced new opinion letters from the Department’s Wage and Hour Division (WHD) on calculating overtime pay for nondiscretionary bonuses and permissible rounding practices under the Fair Labor Standards Act (FLSA).  Opinion letters are responses from the WHD to submitted queries, are primarily informative in nature, and are published by the WHD to clarify or interpret existing regulations.

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Alabama: New Pay Equity Law Prohibits Retaliation Related to Wage History Inquiries; Adds Equal Pay Provisions

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September 1, 2019

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The newly enacted Clarke-Figures Equal Pay Act (CFEPA) is Alabama’s first statewide pay equity law, and goes into effect on September 1, 2019.  The CFEPA takes its cues from the federal Equal Pay Act, but also includes provisions commonly seen in other state-level pay equity laws designed to combat discriminatory pay practices.

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Which Way is the Wind Blowing on Independent Contractors Lately?

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April 29, 2019

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The question always seems to be – which way is the wind blowing on independent contractors lately? The answer depends on who is asking and in what state they work. Most recently, the U.S. Department of Labor (DOL) issued an opinion letter indicating that gig economy workers who are part of the virtual marketplace are likely independent contractors, provided they meet the six-factor economic realities test. The DOL stated that a virtual marketplace company (VMC) “is an online and/or smartphone-based referral service that connects service providers to end-market consumers to provide a wide variety of services, such as transportation, delivery, shopping, moving, cleaning, plumbing, painting, and household services.” The role of VMC’s is to help consumers more readily connect with the services they are looking for.

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June Updates

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This Short List addresses the following topics:
  1. U.S. Supreme Court: Title VII Claims to the EEOC are Merely Procedural and Not Jurisdictional to Courts
  2. U.S. Supreme Court: State Wage and Hour Rules Don’t Apply to Workers on the Outer Continental Shelf
  3. DOL Issued Updated Poster for Federal Contractors and Subcontractors
  4. California: July 1st REMINDERS for Employers
  5. Emeryville, CA: July 1st Minimum Wage Increase Paused for Small Independent Restaurants
  6. Colorado: Wage Garnishment Reform on the Horizon
  7. Connecticut: Minimum Wage Increasing to $15 an Hour
  8. Minneapolis, MN: Sick and Safe Time Rule Is Still Up in the Air
  9. Kansas City, MO: Bans Pre-Employment Salary History Inquiries
  10. Nevada: Mandatory Safety Training Expanded to Trade Show and Convention Workers
  11. New Jersey: Required Workplace Postings Receive an Update
  12. Texas: Dallas and San Antonio Paid Sick Leave Set to Go into Effect August 1st

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EEO-1 Component 2 Reporting for 2017 AND 2018 is Due September 30, 2019

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May 1, 2019

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The Equal Employment Opportunity Commission (EEOC) recently issued reinstatement of EEO-1 expanded data collection requirements and posted notice on its website that EEO-1 filers are required to submit Component 2 data for calendar years 2017 AND 2018 by September 30, 2019. (EEO-1 filers include employers with one hundred or more employees as well as certain contractors with more than fifty employees.) This has been an ongoing issue since the requirement to collect Component 2 data was implemented in 2016, and the Office of Management and Budget’s (OMB) attempt to block its implementation in 2017. As previously reported, in Nat’l Women’s Law Ctr. v. Office of Mgmt. & Budget, a federal judge in the D.C. Circuit Court stated that the OMB failed to demonstrate good cause for staying the release of the updated EEO-1 report form.

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U.S. DOL Issues New Opinion Letters on Voluntary Delay or Extension of FMLA Leave, Volunteer Working Hours

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March 14, 2019

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On March 14, 2019, the United States Department of Labor Wage and Hour Division (WHD) issued two new opinion letters.  The first letter addresses whether or not employers may extend or delay designating paid leave as FMLA time off.  The second letter addresses whether an employee’s time participating in an optional volunteer program qualifies as hours worked under the Fair Labor Standards Act (FLSA).  These opinion letters are responses from the WHD to submitted queries, are primarily informative in nature, and are published by the WHD to clarify or interpret existing regulations.

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Sixth Circuit: Off-Duty Law Enforcement Misclassified as Independent Contractors

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February 12, 2019

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In Acosta v. Off Duty Policy Services, Inc., the Sixth Circuit applied the six-factor “economic reality” test to determine whether off-duty officers were misclassified as independent contractors for purposes of the Fair Labor Standards Act (FLSA). There, the employer provided private security services using off-duty, sworn police officers, as well as nonsworn workers. The workers were allowed to accept or reject work assignments, were provided basic equipment, but had to supply their own vehicles and uniforms. The sworn officers typically wore their officer uniforms and used their patrol vehicles, while the nonsworn workers had to use their own police-style vehicle.

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New Wage and Hour Opinion Letters from the U.S. Department of Labor

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August 28, 2018

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The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) recently issued six opinion letters related to compliance with the Fair Labor Standards Act (FLSA) and the Family Medical Leave Act (FMLA). The opinion letters are meant to provide clarity on employee rights and employer obligations as interpreted by the DOL.

Eleventh Circuit: Joint Employer Standard Clarified Under the FLSA and Common Law

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August 2, 2018

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In Garcia-Celestino v. Ruiz Harvesting, Inc., the Eleventh Circuit distinguished the joint employer standard under the Fair Labor Standards Act (FLSA) and common law. Each standard turns on the applicable definition of “employee” and “control,” but are not the same. There, migrant workers under the H-2A visa program filed suit against their employer and a citrus grove owner for minimum wage violations under the FLSA and for breach of their contract, which was based on federal immigration statutes and regulations. The court looked at whether or not the citrus grove owner was a joint employer.

Eleventh Circuit: Valet Uniforms May Be “Materials” Requiring FLSA Coverage of Employees

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June 29, 2018

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In Asalde v. First Class Parking Sys. LLC, the Eleventh Circuit Court of Appeal stated that a jury may determine whether valet uniforms meet the “materials” definition for “enterprise coverage” which would allow them the protections of the Fair Labor Standards Act (FLSA). The FLSA applies, in part, to employers who have “employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for [interstate or international] commerce by any person” and have an annual volume of business of at least $500,000. (Emphasis added.)