Wyatt Employment Law Report


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DOL Announces Test for Determining Intern Status under the FLSA

By Amanda Warford Edge

As many employers have begun thinking about their summer hiring needs, the Department of Labor (“DOL”) has announced that going forward, it will apply the “primary beneficiary” test to determine whether interns working for “for-profit” employers are employees under the Fair Labor Standards Act (“FLSA”). The DOL’s announcement provides much-needed clarity to employers, as it comes in the wake of a growing number of federal appellate court decisions that have rejected the DOL’s former six-factor test to determine internship status. Indeed, with this announcement, the DOL has Continue reading


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Department of Justice Drops Appeal on Obama Overtime Rule

By Daniel Reed

The Justice Department will no longer fight to preserve President Barrack Obama’s proposed overtime rule that a federal judge declared invalid in August.

The Obama-era rule would have required employers to pay overtime to most salaried workers who earn less than $47,476 annually, a sharp increase from the current annual salary cap of $23,660.  The rule would have extended mandatory overtime pay to more than 4 million U.S. workers.  A court challenge to the rule was filed by business groups and 21 states in the Eastern District of Texas. (Nevada v. DOL, E.D. Tex., No. 4:16-CV-731).

In August of this year, U.S. District Judge Amos Mazzant, an Obama appointee,  struck down Continue reading


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Proposed House Bill Would Ban Employers From Asking About Salary History

By Michelle High

coin stackThis past week, House Rep. Eleanor Holmes Norton, D-District of Columbia, introduced H.R. 6030, which seeks to amend the Fair Labor Standards Act and add a section prohibiting all employers from asking about a job applicant’s salary history. The bill, also known as the Pay Equity for All Act of 2016, would make it illegal for an employer to screen prospective employees based on their previous wages or salary histories, including benefits or other compensation or to require a prospective employee to disclose previous wages or salary histories, including benefits or other compensation. Additionally, employers would be prohibited from seeking the previous wages or salary history of any prospective employee from a current or former employer.

The bill is co-sponsored by Democratic Reps. Rosa DeLauro of Connecticut, Jackie Speier of California and Jerrold Nadler of New York. According to the sponsors, because many employers set wages based on an applicant’s previous salary, workers from historically disadvantaged groups often Continue reading


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Are Your FLSA and EPPA Posters Up to Date?

By Courtney Ross Samford

The Department of Labor recently announced revisions to the Fair Labor Standards Act (FLSA) and Employee Polygraph Protection Act (EPPA) posters that must be posted in workplaces across the country.  The updated posters, which are available for download on the DOL’s website, must be posted by August 1, 2016.

All private, federal, state and local government employers employing at least one employee are subject to the requirements of the FLSA.  The EPPA applies to any employer engaged in or affecting commerce or in the production of goods for commerce, but excludes federal, state and local governments, and circumstances covered by the national defense and security exemption.


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Sharon Gold to present at Bluegrass Compensation Association meeting, “FLSA Overtime Update”

Sharon_GoldSharon Gold, a Partner with Wyatt, Tarrant & Combs and leader of the Firm’s Employment Practices Liability Insurance (EPLI) team, will be speaking at the Bluegrass Compensation Association meeting at the Lexington Herald-Leader on June 22, 2016.  Ms. Gold will be providing an FLSA update concerning the Department of Labor’s Final Rule that requires overtime for employees making less than $47,476 per year.  Her presentation will provide guidance on the requirements of the new regulation, the implementation deadline, and tips on implementation.

 

Please click here to view the agenda and register.


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The Impact of Justice Scalia’s Death on This Term’s Employment-Related Cases

By Sean G. Williamson

Antonin_Scalia_Official_SCOTUS_PortraitThe recent and unexpected death of Justice Antonin Scalia at a West Texas ranch may affect the decisions in several employment-related cases pending before the U.S. Supreme Court this term.  The nine-member body—now reduced to eight—faces a variety of controversial issues predicted to divide the Court along ideological lines.  Prior to Scalia’s passing, the Court generally could be described as containing four conservatives and four liberals, with Justice Anthony Kennedy providing the swing vote.  Without Scalia, the influence of the conservative wing is weakened.  A 4-4 decision will result if Kennedy joins the remaining conservatives in any vote opposite the perceived liberal justices.

When the Court is split 4-4, the lower court’s decision stands, and no national precedent is set.  Moreover, any circuit split the Court might have wished to resolve will remain unchanged.  Rather than render a 4-4 decision, the Court could order the case to be reheard next term—when Continue reading


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DC Circuit Reinstates DOL Rule Applying FLSA’s Minimum Wage and Overtime Provisions to Home Care Workers

By Michelle D. Wyrick

Companionship services, L&EOn August 21, 2015, in Home Care Association of America v. Weil, the United States Court of Appeals for the District of Columbia Circuit cleared the way for the implementation of regulations extending the Fair Labor Standards Act’s (“FLSA’s”) minimum wage and overtime provisions to many home care workers. The court rejected a challenge to the United States Department of Labor’s (“DOL’s”) authority to change its interpretation of the scope of the FLSA provisions exempting from minimum wage and overtime guarantees domestic-service workers who provide either companionship services or live-in care for the elderly, ill, or disabled. The court’s ruling directly affects home care workers who are employed by third-party providers, like home health care agencies.

For four decades, the DOL interpreted the FLSA’s exemptions for companionship services and live-in workers to apply to employees of third-party providers. The old regulations specifically stated that domestic workers, who were employed “by an employer other than the family or household using their services,” were not included in the FLSA’s protections. Thus, traditionally, those workers have not been eligible for Continue reading