Wyatt Employment Law Report


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Department of Labor – Fiduciary Rule Delay

By Sherry Porter

The U.S. Department of Labor’s (DOL) new fiduciary rule has been in the news for several years.  A portion of the rule relating to impartial conduct standards for employee benefit plans recently went into effect on June  10, 2017.  The remaining standards of the rule will become effective January 1, 2018.  The rule, which is essentially a consumer protection rule, has been quite controversial in that it imposes fiduciary status on many advisors who provide investment advice to retirement plans, IRAs and HSAs who had not been previously considered fiduciaries.  Many advisors have been working diligently to comply with the new DOL fiduciary rule – some investing significant hours and funds to comply.

Last week, the DOL filed a Notice of Administrative Action in a court case stating that it had submitted proposed amendments pertaining to the fiduciary rule to the Office of Management and Budget.  While they are currently in proposed state, the amendments propose to delay the applicability date from January 1, 2018 to January 1, 2019.  The proposed amendments have not yet been publicly released.  Stay tuned for more details, as it is likely the fiduciary rule will be pushed back.


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Employers Should Watch for New Overtime Regulations

By Mitzi Wyrick

Last year, the United States Department of Labor (“DOL”) issued new overtime regulations that would have substantially increased the salary level necessary for employees to remain classified as exempt.  Just before the new regulations were to go into effect, a United States District Court in Texas issued a nationwide injunction preventing the DOL from enforcing the overtime regulations.  You can read more on that here:  https://wyattemployment.com/2016/11/23/texas-judge-blocks-overtime-rule/

Now, the DOL seems ready to revisit the issue.  During the last week of June, the DOL sent a Request for Information related to the overtime rule to the Office of Management and Budget for its review.  Once the Request for Information is published, the public will have an opportunity to comment.   It seems likely that the DOL will again attempt to revise the current salary basis test, but perhaps not as substantially as previously attempted.  Watch this site for further details as they develop.


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Everything Old is New Again….

By Mitzi Wyrick

The United States Department of Labor Has Revived its Practice of Issuing Opinion Letters

Under the Obama Administration, the DOL’s Wage & Hour Division ceased issuing Opinion Letters and undertook the practice of issuing Administrator’s Interpretations which were designed to set forth generally applicable interpretations of the law and regulations unrelated to particular employers or industries.  Previously, the DOL preferred to offer written Opinion Letters demonstrating how the law or regulations applied in particular circumstances when requested to do so by employers, employees or other entities.  On June 27, 2017, the DOL revived its practice of issuing Opinion Letters.  At the same time, the DOL issued guidance on how to request an Opinion Letter, which can be found here: https://www.dol.gov/whd/opinion/opinion-request-1.htm.  While an Opinion Letter can provide an employer a good faith defense against liquidated damages, the decision to request an Opinion Letter should be carefully considered.

The DOL’s decision to resume issuing Opinion Letters may Continue reading


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H-1B Enforcement Stepped Up

By Glen Krebs

On April 3, 2017, U.S. Citizenship and Immigration Services (USCIS) announced multiple measures to further deter and detect H-1B visa fraud and abuse.  On April 4, 2017 the U.S. Department of Labor (DOL) announced plans to protect U.S. workers from H1B program discrimination by providing greater transparency and oversight.  These announcements have caused companies which regularly use H-1B workers to be concerned about their workforce in coming years.

The companies mostly affected by this policy change will be outsourcing firms – companies which hire H-1B workers and then place them at the worksite of other companies.  Many of the outsourcing firms are headquartered Continue reading


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President Trump Proposes Significant Cuts to DOL

By Courtney Samford

President Trump released his proposed budget for fiscal year 2018 earlier this month.  The proposal, which is entitled “America First: A Budget Blueprint to Make America Great Again,” purports to “put[] the needs of its own people first” by prioritizing national security and public safety.   To account for increases in these areas, the budget acknowledges that many “Government agencies and departments will …. experience cuts …. to achieve greater efficiency and to eliminate wasteful spending[.]”

The Department of Labor (“DOL”) is no exception to President Trump’s proposed cuts.  The America First Budget requests a total of $9.6 billion for the DOL, which equates to a 21 percent decrease from fiscal year 2017.  In particular, the budget seeks to Continue reading


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Texas Judge Blocks Overtime Rule

By: Sharon Gold

In September, 21 states and numerous business groups sued the U.S. Department of Labor (DOL) in a Texas Federal Court attacking the DOL’s Final Rule that raised the salary minimum for workers to be exempt from overtime requirements under the Fair Labor Standards Act (FLSA).  The states filed a motion for preliminary injunction asking the judge to enjoin enforcement of the Final Rule pending a final resolution of their legal arguments against the Rule.  The businesses moved for summary judgment.  Continue reading


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Persuader Rule Update

By George J. Miller

On July 12th I posted a report on this blog about the U.S. Department of Labor’s “persuader rule” that was set to go into effect on July 1st. This rule would have required employers and their labor consultants—including employers’ attorneys—to file reports with the DOL disclosing in a public record the work the consultants performed, including fees paid, if the work even so much as “indirectly” is undertaken to persuade employees regarding the exercise of their rights to organize or join labor unions. At that time I reported that on June 27th the U.S. District Court for the Northern District of Texas at Lubbock had issued a preliminary nationwide injunction against the DOL, prohibiting it from enforcing the persuader rule, pending a final decision on the merits of the case.  Independent Federation of Business, et al. v. Thomas E. Perez, et al, Case No. 5:16-CV-00016 (N.D. Texas, June 27, 2016).

To bring readers up to date, on August 29th, the DOL appealed the District Court’s injunction order to the U.S. Court of Appeals for the Fifth Circuit, where the case is still pending.  However, this appeal did not divest the District Court of jurisdiction, and the case proceeded there.  Yesterday, November 16th, the court granted the plaintiffs’ summary judgment motion and denied the DOL’s summary judgment motion.  The court said it is of the opinion that its preliminary injunction should be converted to a permanent, nationwide injunction.  However, the court did not enter final judgment today, stating that it first wanted to determine whether the plaintiffs are entitled to recover their attorney fees and costs.  The court has ordered the parties to file briefs on that issue in the next few weeks.