The independent contractor/employee classification conundrum is nothing new. Courts, state legislatures, and even the IRS have developed a slew of multi-factor tests to assess whether a worker is an employee or independent contractor. Mixed among these tests is arguably the most significant-the U.S. Department of Labor’s six-factor test, which is now being given a much-needed makeover. On September 22, 2020, the DOL released a Notice of Proposed Rulemaking, announcing an employer-friendly proposed rule that nixes a balancing test in favor of a test that focuses on the two factors that matter.

As the rule currently stands, the DOL has a six-factor test to assess the worker’s economic dependence on the business, including: (1) the business’s control over the workers; (2) the permanency of the relationship; (3)the workers’ investment in facilities and equipment; (4) the skill required to complete the work; (5) the opportunities for profit or loss; and (6) the extent to which the workers’ services are integrated into the business. No one factor is given more weight than any other.
Continue Reading It Takes Two: The DOL’s Proposed Rulemaking Regarding FLSA Worker Classification

Summer is coming to an end, and you know what that means: school is back in session. We’ve previously provided general guidance on the challenges facing students, parents and employers this fall as students return to school during the pandemic. This post focuses specifically on what employers doing business in New York should be considering.

The same overarching analysis applies when determining your obligations if an employee is seeking leave to care for children who would be in school if not for COVID-19:

  • Does FFCRA apply?
  • Does a state or local Emergency COVID-19 leave law apply in our jurisdiction?
  • Does a paid sick leave law apply in our jurisdiction?
  • Does a company benefit or policy apply?

New York has a number of leave laws that are implicated by school closures. Fortunately, employers need not worry about New York State’s Paid Family Leave for purposes of school closures. New York has explicitly stated in its FAQ that a COVID-related school closure is not a qualifying reason for purposes of Paid Family Leave benefits under the law. An employee may, however, avail himself or herself of such benefits if the employee or the employee’s minor dependent child is subject to a mandatory or precautionary order of quarantine or isolation issued by the State, department of health, local board of health, or government entity.


Continue Reading Back to School Cheat Sheet for Employers: New York

On August 3, 2020, New York federal Judge Paul Oetken, vacated several significant provisions of the U.S. Department of Labor’s April 1, 2020 Final Rule, which construes the Families First Coronavirus Response Act (“FFCRA” or the “Act”), finding that the DOL exceeded its rulemaking authority. State of New York v. United States Department of Labor et al., 20-cv-03020-JPO (S.D.N.Y. August 3, 2020).

Particularly significant for New York employers, this decision changes how they determine which employees are entitled to FFCRA leave and how they can administer those leaves.  The question remains, however, whether the vacated provisions of the DOL’s regulations are still valid in states outside of New York.


Continue Reading New York v. United States: S.D.N.Y. Vacates Key Provisions in DOL’s Final Rule Limiting Paid Leave Under the FFCRA

Chicago, the nation’s third largest school district, reversed course and said it would begin the academic year remotely in September.  This shift leaves New York City as one of the only major school systems still planning to offer in-person classes this fall.  Like the spring school shutdown, continued remote learning presents many challenges for working parents.  Many wonder how they can put in full workdays without sacrificing their child’s education, job performance, and sanity.

Rather than ignoring the challenges for employees with school-aged children, employers can proactively act to help their parent employees and mitigate their own legal risks.  Employers are facing employment lawsuits related to the COVID-19 pandemic on a number of fronts and childcare challenges will certainly be an issue.  For example, one recently filed lawsuit by a California woman against her former employer alleges “she was fired because her young children were making noise during business calls while she was working from home because of the coronavirus pandemic.”


Continue Reading Getting a Passing Grade When Office + School = Home

On Monday, July 20, 2020, the U.S. Department of Labor published additional guidance, addressing questions arising from the COVID-19 pandemic under the Fair Labor Standards Act (“FLSA”), the Family and Medical Leave Act (“FMLA”), and the Families First Coronavirus Response Act (“FFCRA”).

In this post, we highlight some of the guidance relating to wage and hour issues, and management of a remote workforce.

This guidance is particularly apropos, as more and more employers realize that the “new normal” is a world of remote work, with some employers extending telework on an indefinite basis.

Here are some interesting questions the DOL answered and our take-aways from the guidance.


Continue Reading When Home = Work: New DOL Guidance on Managing Your Remote Workforce

JOIN US: TUESDAY, JULY 21, 2020 | 12:30PM EST

Four months ago, the Dow was close to 30,000, employment rates were at historic highs, the coronavirus was still “novel,” and millions had not yet taken to the streets in global protests against police brutality and racial inequality. The workplace we now return to exists in

First Up: DOL Expands Overtime Exemption for Commission-based Retail and Service Workers

We all know that retail has been hit hard by the pandemic. When retail employees paid on a commission basis do go back to work, fewer of them will qualify for overtime, thanks to a Department of Labor (DOL) rule promulgated on Monday, May 18, 2020. While this sounds like a bad deal for employees, there’s a silver lining: the DOL issued another rule just today that will make compensating employees for staggered shifts and fluctuating workweeks easier—practices that are likely going to be critical components of a safe COVID-19 return-to-work plan in retail.

Monday’s final rule withdraws 60-year-old interpretive rules that limited employers’ ability to invoke Section 7(i) of the FLSA, which exempts certain commission-based employees in “retail or service establishments” from overtime eligibility. To qualify for the exemption, a business needs to show: (i) it is a retail or service establishment, as defined by the regulations; (ii) the employee’s regular rate of pay exceeds one and one-half times the applicable minimum wage for every hour worked in a workweek in which overtime hours are worked; and (iii) more than half the employee’s total earnings in a representative period must consist of commissions.


Continue Reading DOL Adopts Two Significant Changes to “Modernize” Overtime

The Families First Coronavirus Response Act (“FFCRA”) is effective today, April 1. In honor of this undoubtedly daunting occasion for employers with less than 500 employees, we analyze the most significant provisions from the Department of Labor’s updated FAQs, which fill in gaping holes in the legislation that left employers (and counsel) puzzled.  For employers with fewer than 50 employees, we also examine recent DOL guidance on the “small business exemption” and identify the ways in which employers can qualify for this exemption.


Continue Reading Updated DOL Guidance – What Employers Need To Know On The First Day Of The FFCRA

JOIN US: Tuesday, March 17, 2020 at 12:30 PM EST

Employers are in uncharted territory with the COVID-19 pandemic, which has created complicated employment issues that continue to evolve by the hour. Join Kelley Drye’s Labor and Employment co-chairs Barbara Hoey and Mark Konkel and senior associate Diana Hamar as they share practical advice for

As federal, state and local governments continue to develop their responses to the COVID-19 outbreak, employers may find themselves in uncharted territory as to how to deal with emerging employee issues.

There are three overriding rules that all employers should remember:

  1. Think safety first. Keeping those employees who are infected or at risk of infection at home to ensure that the rest of the workforce is safe should be the number one priority.
  2. Think about how you can keep your business going.  Make sure your work-from-home policies and technology are up to date, and remind employees how to use them.
  3. Avoid stereotypes. Do not allow employees to assume that people of certain ethnicities are at a higher risk than others. If you become aware of any discrimination or harassment—stop it immediately.

Below are some general answers to questions our clients have been asking.  However, please be aware that this is a very fact-specific and complex topic; COVID-19 related employment issues are evolving by the hour. Employers are cautioned to stay abreast of federal, state, and local government advisories, and to consult legal counsel before making employment decisions or changing policy.


Continue Reading Managing Your Workforce During COVID-19