Wyatt Employment Law Report

NLRB Releases Joint-Employer Final Rule

By Courtney R. Samford

On February 25, 2020, the National Labor Relations Board (“NLRB”) announced that it would release a final rule that addresses the joint-employer relationship on February 26, 2020.  According to the NLRB, “[t]he final rule restores the joint-employer standard that the Board applied for several decades prior to the 2015 decision in Browning-Ferris, but with the greater precision, clarity, and detail that rulemaking allows.” Continue reading

Employers’ Contractually-Shortened Statutes of Limitations May Not Be Enforceable

By Mitzi Wyrick

The Kentucky Court of Appeals and the Sixth Circuit Court of Appeals have both recently examined the issue of contractually-shortened statutes of limitations for employment claims. Both cases involved employment applications containing nearly identical statements shortening statutes of limitations to six months for any claims relating to the applicants’ employment.

In Croghan, Administrator of the Estate of Amy L. Croghan v. Norton Healthcare, Inc., et al., decided by the Kentucky Court of Appeals, the employment application stated: Continue reading

EEOC Releases Year-End Enforcement Statistics

By Michelle Wyrick

According to the U.S. Equal Employment Opportunity Commission (“EEOC”), retaliation again leads the way as the most frequently filed charge for Fiscal Year 2019.  On January 24, 2020, the EEOC released its annual enforcement and litigation data, which showed retaliation as the leading charge, followed by disability discrimination, race discrimination, and sex discrimination. Continue reading

Revised Department of Labor Joint Employer Standard

By Mitzi Wyrick

On January 12, 2020, the United States Department of Labor (“DOL”) updated its standard for determining who is a joint employer under the Fair Labor Standards Act (“FLSA”) for the first time in 60 years.  Under the FLSA, an employee may be employed by more than one employer, which puts each employer at risk for unpaid wages and overtime. Continue reading

Proper Termination of H-1B Employee

By Glen Krebs

We have heard a lot recently about the H-1B CAP.  The U.S. Citizenship and Immigration Services (“USCIS”) just completed its lottery to select which H-1B visa applications it will review.  They will soon start to return the applications and fees for those cases that were not selected in the lottery.  Next year, the process will be different and less costly to employers.  Watch for the new instructions to come out later in the year.

Continue reading

Payments and Perks: the DOL Announces a Proposal to Clarify What Qualifies as Overtime

By Marianna Michael

On Thursday, March 28, 2019, the U.S. Department of Labor (“DOL”) announced proposed changes to the overtime provisions of section 7(e) of the Fair Labor Standards Act.  In its current form, the statute generally requires employers to pay overtime if workers work more than 40 hours a week.  One exemption to the overtime rule includes the salary basis exemption, where employees generally must be paid at least $455 per week on a salary basis, unless they are outside sales employees, teachers and employees practicing law or medicine.

accounting-blur-budget-128867Overtime pay is equal to one and one half times the regular rate of pay.  In designating what is included under the regular rate of pay, the current provision makes a distinction between payments and perks.  With the proposed provision, the DOL seeks to clarify what qualifies as either a payment or perk in an attempt to discourage employers from offering incentives that are excluded from the calculation of overtime pay.

The proposed changes confirm that the following types of employer-provided benefits may be excluded from the regular rate of pay:

  • the cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes and employee discounts on retail goods and services;
  • payments for unused paid leave, including paid sick leave;
  • reimbursed expenses, even if not incurred “solely” for the employer’s benefit;
  • reimbursed travel expenses that do not exceed the maximum travel reimbursement permitted under the Federal Travel Regulation System regulations and that satisfy other regulatory requirements;
  • discretionary bonuses;
  • benefit plans, including accident, unemployment and legal services; and
  • tuition programs, such as reimbursement programs or repayment of educational debt.

This proposal is published for public comments and will remain open until May 28, 2019.  Comments may be submitted to the Notice of Proposed Rulemaking at www.regulations.gov. More information is available here.

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.