Wage and Hour

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The impact of the legal definition of “employee” versus “independent contractor” under the Fair Labor Standard Act (“FLSA”) and other employment laws cannot be understated. The FLSA’s minimum wage and overtime requirements—along with a vast array of other legal obligations employers owe to employees—simply do not apply to independent contractors. Unhelpfully, various regulatory agencies and courts have looked in the past to similar, but not quite identical, tests of independent contractor status. With so much riding on the right classification both in terms of lawsuits and dollars, any clarification of which test an employer should look to is absolutely critical guidance to U.S. businesses.

Enter the Department of Labor (“DOL”) and its January 7, 2021 publication of the final rule on classifying “Independent Contractor Status under the Fair Labor Standards Act” (the “Final Rule”), which goes into effect on March 8, 2021.  …
Continue Reading Independent Contractor Final Rule (For Now)

On January 20, 2021, Vice President Joseph R. Biden Jr. will be sworn in as the 46th president of the United States. Whichever side of the political spectrum you fall on, there can be no question that this is going to signal changes – and not all of them positive – for employers. For all…

Uber and Lyft may be longing, ironically enough, for the days when COVID-19 was the most immediate existential threat to their businesses. But now a California court has ruled that Uber and Lyft cannot classify their California drivers as employees, entitling them to sick leave, wage minimums and a whole host of other job protections.

How exactly did we get here? Let’s turn back the clock to September 2019 when California first signed Assembly Bill 5 (“AB5”) into law. AB5 codifies the California Supreme Court’s decision known as Dynamex. In that decision, the Court imposed a stricter three-prong test on employers seeking to classify their workers as independent contractors. We previously reported on this decision here back in May 2018.…

Continue Reading California Court Says Uber and Lyft Drivers Are Employees, Not Contractors

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

Not to be upstaged by the President, and just as the Senate was voting on the Families First Coronavirus Response Act of 2020 (“FFRCA”), New York State Governor Andrew Cuomo signed into law paid sick leave legislation to mandate paid sick leave and provide job protection for ALL New York employees, including those who are quarantined or ordered to self-isolate as a result of COVID-19.

There are two major distinctions between the FFCRA and the New York Sick Leave Law:

  • The NY law applies to ALL employers, not just those with under 500 employees.
  • The NY paid sick leave law for employees with COVID-19 issues is effective immediately. The amendments to New York Labor Law mandating state-wide paid sick leave go into effect in 180 days. This article focuses on the COVID-19 portion of the law.

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Continue Reading NYS Enacts COVID-19 Paid Sick Leave Legislation—Effective Immediately

On the evening of Monday, March 16, the House amended the Families First Coronavirus Response Act (“FFCRA”) (HR 6201) by amending the bill with what are being called “technical corrections.”

The previous bill, passed by the House on March 14, contained two main centerpieces: (1) new paid Family and Medical Leave to deal with the

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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 as they share practical advice for employers looking to keep employees…

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