Announcing Conn Maciel Carey’s 2022 Labor and Employment Webinar Series
The legal landscape facing employers seems as difficult to navigate as it has ever been. Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or business owner. Change appears to be the one constant. As we enter Year 2 of President Biden’s Administration, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC. At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.
To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2022 series, click here to send us an email request, and we will register you. If you missed any of our programs from the past seven years of our annual Labor and Employment Webinar Series, here is a link to an archive of recordings of those webinars.
2022 Labor and Employment Webinar Series – Program Schedule
On the heels of Donohue v. AMN Services, LLC recognizing a rebuttal presumption of meal period violations based on the employer’s time records alone – as discussed in our prior blog post – the California Supreme Court has, in another blow to employers, ruled that the premium pay required where the employer does not provide meal, rest or recovery periods is not based on the hourly rate of pay (as had previously been understood). In essence, the California Supreme Court has found that the “rate of compensation” for the purpose of determining the additional hour of pay due to employees who are not provided meal, rest or recovery periods is synonymous with the overtime rate of pay and must include all nondiscretionary payments, not just hourly rates.
The $15 per hour minimum wage is not a new idea, although a minimum wage increase under the Fair Labor Standards Act has garnered new attention in recent months. Raising the minimum wage was one of President Biden’s campaign promises and both the House and the Senate have re-introduced legislation to raise the federal minimum wage. Some states, like California, Connecticut, Illinois, and New York are already on track to have a $15 per hour minimum wage by 2025. But what does all this mean for employers? According to a recent Congressional Budget Office study increasing the federal minimum wage would raise the wages of at least 17 million Americans. Therefore, employers should begin thinking about how the progressive increase of the minimum wage will impact their resources.
The Fair Labor Standards Act (“FLSA”) dictates the federal minimum wage, rules surrounding overtime pay and hours worked, and recordkeeping requirements. Two types of employers are covered under the FLSA: enterprises and individuals. Enterprises have at least two employees and are (1) those that have an annual dollar volume of sales or business done of at least $500,000 or (2) hospitals and businesses providing medical or nursing care for residents, schools, and preschools, and government agencies. Individuals are employers whose employees are engaged in work that regularly involves interstate commerce. Executive, administrative, and professional employees (including teachers and academic administrative personnel in elementary and secondary schools) are FLSA minimum wage and overtime exempt provided they are paid at not less than $684 per week on a salary basis. These salary requirements do not apply to outside sales employees, teachers, and employees practicing law or medicine. This exception is commonly referred to as the white collar exception. Other minimum wage and overtime exemptions include creative professionals, computer employees, and highly compensated individuals.
If the $15 per hour minimum wage legislation passes, employers may consider making hourly employees who would otherwise be FLSA exempt salaried. There are several benefits to be gained if those employees were correctly classified as minimum wage and overtime exempt. First, predictable wages. Hourly employees who work more than 40 hours per week are entitled to 1.5 times their regular rate of pay for each additional hour worked. If the $15 per hour minimum wage passes, that would be an overtime rate of pay of $22.50 per hour. Salaried white collar employees are not subject to the same overtime pay. Second, the elimination of recordkeeping. Employers must keep a record of all hours worked by their hourly employees. For about the past year, many white collar employees have tele-worked due to the ongoing COVID-19 pandemic. Tele-work has made it challenging for employers to keep track of employee hours worked. Whereas before an employee may have used a daily timeclock located inside the office, now employers have had to come up with creative solutions to comply with the FLSA recordkeeping requirement. With many companies predicting that even after the pandemic tele-work may still be available at least one day a week for all white collar employees, correctly classifying white collar employees as exempt by making them salaried eliminates the need to keep track of employees’ working hours.
Employers who do consider changing their white collar employees from hourly to salaried should exercise caution. The U.S. Wage and Hour Division has outlined specific tests for every exempt employee category and employers do not want to run the risk of misclassifying employees as it could result in a lawsuit. Furthermore, employers should make sure that the decision is made equitably so as not to run afoul of other labor and employment laws like Title VII and The Americans with Disabilities Act. Ultimately, the decision of whether to make an otherwise FLSA exempt hourly employee salaried should take into account the employer’s resources and be made with the assistance of legal counsel.
The legal landscape facing employers seems as difficult to navigate as it has ever been. Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or business owner. Change appears to be the one constant. As President Trump’s Administration comes to an end, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC. At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate. This complimentary webinar series will focus on a host of the most challenging and timely issues facing employers, examining past trends and looking ahead at the issues most likely to arise.
To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2021 series, click here to send us an email request, and we will register you. If you missed any of our past programs from our annual Labor and Employment Webinar Series, click here to subscribe to our YouTube channel to access those webinars.
Many states are beginning to re-open their economies, and employers are resuming or increasing business operations in some fashion. As employers make this transition, there are several key employment considerations that employers should pay close attention to. Below is an overview of some of the topics employers should carefully analyze when reopening or increasing business operations.
Exempt and Non-Exempt Employee Classification Issues
As employers begin to ramp up business or begin plans to do so, employers should carefully evaluate whether exempt employees performing a majority of work on non-exempt tasks still meet the administrative exemption Continue reading →
After receiving over 116,000 comments on its Proposed Rule to revise the version of the Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees Rule (“Overtime Rule”) promulgated in 2016, the U.S. Department of Labor (“DOL”) has issued a final, revised version of the Overtime Rule. On September 24, 2019, the DOL announced the final Overtime Rule (“revised Overtime Rule”) through a press release touting the impact of the Rule and highlighting its major changes. Notably, the press release reflects the significant impact the change in the threshold salary level for the white-collar exemptions is projected to have on employees – lowering the number of employees likely to become eligible for overtime pay from 4.2 million under the 2016 version of the Overtime Rule to 1.3 million. This is due to the DOL decreasing the salary threshold level from $913.00 per week to $684.00 per week under the revised Overtime Rule.
Significantly, the Rule takes effect on January 1, 2020 – in just under 100 days. This timeline does not provide for a phase-in period as advocated for by many commenters and trade associations, and is a much shorter time period than 192 days employers were given in 2016 when the Overtime Rule was promulgated, and the 120 days given in 2004. As justification for this timeline, the DOL stated that Continue reading →
On September 10, 2019, the U.S. Department of Labor (DOL) issued a new Opinion Letter providing clarity on the Fair Labor Standards Act’s (FLSA)’s Section 7(i) retail or service establishment overtime pay exemption that commissions on goods or services represent more than half an employee’s compensation for a representative period of not less than one month.
The California legislature is considering a bill that would codify in the Labor Code and Unemployment Insurance Code the California Supreme Court’s decision in Dynamex – which adopted a standard that made it significantly more difficult for employers to classify workers as independent contractors, ignoring the realities of the modern workplace and gig economy. Assembly Bill 5 was introduced back in December 2018, and has passed the Assembly and is making its way through the Senate.
As this blog previously noted, last year the Supreme Court in Dynamex interpreted the definition of “employee” under the California Wage Orders as placing the burden on the hiring entity seeking to characterize a worker as an independent contractor to establish each of these three factors: (A) that the worker is free from the control and direction of the hiring entity in performing the work; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed. This is known as the “ABC test.”
On March 22, 2019, the U.S. Department of Labor (DOL) released its proposed rule to raise the annual salary threshold for a worker to qualify as exempt under its “white collar” regulations from $23,660.00 to $35,308.00. The public comment period closed yesterday, May 21, 2019, with almost 60,000 comments from the business and worker communities.
History of the Proposed Rule
The road to a final rule over the salary threshold has been long and bumpy for the DOL. In 2014, President Obama directed the DOL to “update and modernize” the existing Fair Labor Standards Act’s (“FLSA”) white collar exemptions. Two years later, the DOL released its final rule revising the regulations by doubling the salary threshold to $47,476.00.
The final rule dramatically increased the number of workers who would qualify for overtime pay, forcing every employer in the country to carefully assess how to handle the additional financial burden. Continue reading →
The U.S. Department of Labor (“DOL”) has officially curtailed another controversial interpretation of its dual jobs regulation that has plagued employers for more than decade – i.e. the 20% rule. This is welcome news for the hospitality industry and other employers who employ tipped employees, as the previous rule effectively forced employers to track and monitor the time that tipped employees spent on non-tipped tasks and “related duties.” Although the DOL issued an opinion letter rescinding its interpretation of the 20% rule in November 2018, the DOL’s recent revisions to its Field Operations Handbook has official dispelled lingering concerns about the DOL’s interpretation of the Fair Labor Standards Act’s dual jobs regulation and potential enforcement of the 20% rule.
The Tip Credit
Under the federal Fair Labor Standards Act (“FLSA”), employers must pay employees a minimum wage of $7.25 per hour. Various state wage and hour laws impose higher minimum wage requirements, but employers covered Continue reading →