Inching Closer to a New Overtime Rule?

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Julie Adams

In 2016, the U.S. Department of Labor (“DOL”) modified 29 C.F.R. § 541 – which regulates  the Fair Labor Standards Act’s (“FLSA”) white-collar exemptions (administrative, executive, professional, computer, and outside sales) – often referred to as the “Overtime Rule.”  Among other changes, the new Overtime Rule increased the salary threshold for white-collar employees from $23,660 to $47,476.  Before the new Overtime Rule took effect, Judge Amos Mazzant, a federal district judge in Texas, temporarily blocked the rule by entering an injunction in Nevada v. United States Dep’t of Labor, 227 F. Supp. 3d 696 (E.D. Tex. 2017).  Rather than appeal Judge Mazzant’s decision and pursue implementation of the revised 2016 rule, the DOL elected, instead, to proceed with a new rulemaking.  Continue reading

Tip Credits and Florida Minimum Wage Laws

Gomez, Rudy - 300dpi
Rudy Gomez

Background: The Fair Labor Standards Act (“FLSA”) and Florida minimum wage law allow an employer to take a tip credit toward its minimum wage obligation for “tipped employees”. A “tipped employee” is an employee who customarily and regularly receives more than $30 per month in tips. 29 U.S.C. § 203(t). An employer is permitted to take a tip credit equal to the difference between the minimum wage (currently $8.25 in Florida) and the required cash wage (currently must be at least $5.23 in Florida). Thus, the maximum tip credit that an employer can currently claim under the FLSA and Florida law is $3.02 per hour ($8.25 – $5.23).  Continue reading

The Fate of the DOL’s 80-20 Rule: Will the 80-20 Rule Survive?

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Jeffrey Douglas

The U.S. Department of Labor’s (“DOL”) “80/20 Rule” has caused significant anxiety and concern for employers in the restaurant industry and other industries with tipped employees.  A recent spate of nation-wide class action litigation is leading to record-setting settlements for restaurant employers.  However, in a recent lawsuit filed in the Western District of Texas, Restaurant Law Center, et al. v. United States Department of Labor, 18-cv-567 (W.D.Tex.), national and local restaurant groups hope to bring an end to this wave of litigation by seeking to invalidate the 80/20 Rule. Continue reading

New Jersey Enters Partnership with USDOL To Fight Worker Misclassification

new jersey signExecutive Summary: Just months after New Jersey Governor Phil Murphy signed Executive Order No. 25 establishing a task force to combat employee misclassification, the NJ Department of Labor and Workforce Development (LWD) entered into a cooperation agreement with the US Department of Labor (USDOL) to work together to fight worker misclassification. Continue reading

DOL Issues Guidance to Aid in the Classification of Home Care Workers

Adams, Julie 300dpi
Julie Adams

Executive Summary: On July 13, 2018, the United States Department of Labor (“DOL”) issued a Field Assistance Bulletin (“FAB”) aimed at clarifying the standard utilized to determine if home care workers qualify as employees or joint employees under the Fair Labor Standards Act (“FLSA”).  Over the past few years, the DOL has issued and then withdrawn guidance regarding the proper standard and evaluation of home worker classification, leaving uncertainty for the industry.  The new guidance provides clarity on the subject and provides home care registries a road map for proper classification.

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Ninth Circuit Creates More Uncertainty in 80/20 Rule for Tipped Workers

Executive Summary: On February 16, 2018, the United States Court of Appeals for the Ninth Circuit granted en banc review of Marsh v. J. Alexander’s LLC, 869 F.3d 1108, creating a new layer of uncertainty for hospitality employers. The previous decision by a three-judge panel on September 6, 2017, had rejected what is commonly called the “80/20 rule,” which states that hospitality employers may not reduce a tip-earning employee’s hourly pay below the minimum wage when that employee spends more than 20 percent of his or her workweek on non-tip-earning tasks. The case will now be reconsidered by a larger panel of the Ninth Circuit, with oral argument scheduled for the week of March 19, 2018. The grant of en banc review suggests an intention to reconsider the panel’s prior holding or analysis.

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