Wyatt Employment Law Report


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Comment Period Open for DOL’s Proposed Salary Increase

By Sharon Gold

The Office of the Federal Register officially published the Notice of Proposed Rulemaking (“NPRM”) raising the salary minimum for exempt workers that we discussed last week.  The NPRM proposes to raise the minimum salary for exempt workers to $35,308 per year ($679 per week), from the current minimum of $23,660 per year ($455 per week).  The NPRM also raises the highly compensated minimum to $147,414 per year, up from the current minimum of $100,000.  Once a proposed rule is officially published, the 60 day comment period is open.  Employers have until May 21, 2019 to comment.  The link to comment is available here.

If the Rule is finalized, it is estimated that 1.1 million workers will have their salaries raised to the minimum or will be eligible for overtime.


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DOL Releases Much Awaited Proposed Rule Raising Salary Minimum to $35,308 – Employers Have 60 Days to Comment

By Sharon Gold

On Thursday, March 7, 2019, the Department of Labor (“DOL”) released the much anticipated Notice of Proposed Rulemaking (“NPRM”) that significantly raises the minimum salary for exempt workers from $23,660 to $35,308.  It is estimated that if this rule is finalized, more than a million workers will either become eligible for overtime pay or have their salaries raised to meet the minimum.

Employers will recall that in late 2016, a mere few days before the salary minimum was supposed to be raised to $47,476, a federal judge in Texas blocked the rule.  Since that time, the DOL issued a Request for Information about the salary rule in 2017.  More than 200,000 employers and individuals commented.  In addition, the DOL had six in-person listening sessions in connection with the Request for Information.  The DOL indicated Continue reading →


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H-2B Random Selection Process to Begin July 2019

By Glen Krebs

The Department of Labor’s (“DOL”) Office of Foreign Labor Certification (“OFLC”) has announced a plan to change the way it handles the ETA-9142B form which begins the H-2B application process.  Beginning July 3, 2019, all H-2B applications submitted to the National Processing Center (“NPC”) in the first three days of the filing period will be collected.  The filing period begins 90 days before the date of need, so for a date of need beginning October 1, 2019, the filing period begins on July 3, 2019.  On the fourth day of the filing period (July 6), the OFLC will conduct a random selection process on all applications collected by the NPC in the first three days.  Applications covering the first 33,000 H-2B workers will be assigned to Group A.  The Group A applications will then be assigned to NPC analysts in the order of the random selection.   If there are applications for more than 33,000 workers, the remaining applications will be assigned to Group B, Group C, etc. after the random selection process is complete.  Each subsequent group will cover 20,000 H-2B workers.  If there are not 33,000 H-2B worker applications in the first three days, after the random selection process is complete, processing will continue in the normal fashion based on when the application is received by the NPC.

Employers will receive either a Notice of Deficiency or a Notice of Acceptance just as in prior years.  It is in the employers’ best interest to be prepared to conduct their recruitment and submit their reports quickly.  That will allow them to receive Temporary Labor Certification and submit the I-129 to the United States Immigration and Customs Service (“USCIS”) before the 33,000 visas allotted in each six-month period are issued to other employers.

For questions or help with H-2B Non-Agricultural Worker visas, please contact Glen Krebs (859)288-7409.


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Changes to OSHA Electronic Submission Requirement Take Effect February 25

By Julie Laemmle Watts

ballpen-contemporary-desk-955390.jpgThe Occupational Safety and Health Administration (“OSHA”) published a final rule on January 25, 2019, which goes into effect February 25, 2019.  The final rule better protects worker privacy by eliminating the electronic submission requirement of certain forms.  Specifically, employers with 250 or more employees will no longer have to electronically submit information from Form 300 (Log of Work-Related Injuries and Illnesses) and Form 301 (Injury and Illness Incident Report).  However, employers with 250 or more employees, as well as employers in certain designated industries with 20 or more employees but fewer than 250 employees, will still be required to electronically submit  information from Form 300A (Summary of Work-Related Injuries and Illnesses) on an annual basis.  The final rule also requires covered employers to submit Employer Identification Numbers (“EIN”) when electronically filing injury and illness data, which OSHA hopes will reduce duplicative employer reporting.  Notably, employers do not have to submit EINs until 2020.

The final rule does not change the fact that all covered employers must still maintain OSHA Forms 300 and 301 onsite for OSHA inspections and enforcement of actions.

Important dates:

Final rule goes into effect February 25, 2019

Submission of Form 300A data for 2018 is due by March 2, 2019

Submission of EIN is due by March 2, 2020 (to coincide with employers’ submission of 2019 300A data)

Please notify us if you would like to discuss the above with a member of the labor and employment team at Wyatt, Tarrant & Combs, LLP.


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NLRB Returns to Traditional Common-Law Test For Independent Contractors

By Michelle D. Wyrick

On January 25, 2019, in SuperShuttle DFW, Inc. and Amalgamated Transit Union Local 1338, Case 16–RC–010963, the National Labor Relations Board (“NLRB”) overruled its prior decision in FedEx Home Delivery, 361 NLRB 610 (2014), and returned to the common-law test that it previously used to determine whether workers were employees or independent contractors.  The NLRB’s decision clarifies the role that “entrepreneurial opportunity” plays in deciding whether workers are employees or independent contractors.  The significance is that employees can unionize under the National Labor Relations Act (“NLRA”).  Independent contractors cannot.

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The NLRB criticized the FedEx decision because it “significantly limited the importance of entrepreneurial opportunity.”  In SuperShuttle, the NLRB considered whether franchisees who operated shared-ride vans for SuperShuttle Dallas-Fort Worth were employees covered under the NLRA or independent contractors.  The franchisees were required to purchase or lease their own vans (that met franchise specifications), and they paid SuperShuttle Dallas-Fort Worth a franchise fee and a flat weekly fee for the right to use the SuperShuttle brand and its reservation apparatus.  Franchisees paid for their own gas and van maintenance.  The franchisees were not Continue reading →


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US Supreme Court Gives Rare Victory for Arbitration Opponents in a Narrow Case for Transportation Workers

By Sharon Gold

Over the past few decades, the US Supreme Court has become a very arbitration-friendly Court.  Indeed, in the last decade, the Court has upheld arbitration in numerous decisions.  This week, in a rare victory for arbitration opponents, the Supreme Court in New Prime Inc. v. Oliveira unanimously rejected arbitration for truck drivers who were classified as independent contractors under the narrow transportation exception.  At issue was an exception to the enforceability of arbitration clauses for “contracts of employment” of workers engaged as seamen, railroad workers or those engaged in foreign or interstate commerce under the Federal Arbitration Act.  Both parties in the case agreed that truck driver employees fell within the exception.  The questions at issue were: 1) Should the Court decide the initial issue of enforceability of arbitration or should an arbitrator; and 2) Whether the transportation exclusion applied to independent contractors rather than just employees.

The Court initially held that the decision of whether the exclusion applied was one for the Court to decide because it dealt with the statutory authority of the Court.  In another case decided by the Court this term, the Court held that the interpretation of an arbitration agreement, on the other hand, would be subject to review by an arbitrator who would then decide whether arbitration was proper.  Here, because the exclusion concerned the Court’s statutory authority to Continue reading →


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Changes in the H-1B Visa Process

By Marianna Michael

It is time to begin working on your H-1B visa petitions for the fiscal year beginning October 2019.  The H-1B visa offers employers a means to temporarily hire international workers for positions that cannot be filled by U.S. workers.  There is a cap of 85,000 visas which can be issued, of which 65,000 are allocated for individuals who have a bachelor’s degree or its equivalent, and 20,000 are allocated for individuals who have a master’s degree or higher.  The H-1B visa is the method way many companies use to hire individuals with highly technical skills in science, technology, engineering and math.  The United States Citizenship and Immigration Services (“USCIS”) generally receives an overload of applications; 199,000 petitions were filed in 2018.

In addition to the high number of applications, there are other challenges for employers desiring to use the H-1B visas.  First, President Trump issued an executive order, “Buy American and Hire American: Putting Americans First,” which is Continue reading →