Delaware and Oregon have joined Massachusetts and other local jurisdictions (like New York City, Philadelphia and Pittsburgh (currently in litigation)) by enacting laws that prohibit employers from inquiring about the salary histories of job applicants. Most of the provisions of Oregon’s Equal Pay Act of 2017 take effect on January 1, 2019, which gives employers time to focus on compliance. Delaware’s ban, however, takes effect on December 1, 2017, so those employers operating in Delaware need to act quickly to change their recruiting and related processes.
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Former University of Southern California football player Lamar Dawson’s attempt to be declared an “employee” under the Fair Labor Standards Act (FLSA) was soundly defeated in federal court. Dawson brought the lawsuit on behalf of himself and a similarly situated class of Division I FBS football players in which he alleged that they should be entitled to minimum wage and overtime payments in return for their “work” generating “massive revenues” for their universities. (more…)

While President Obama’s landmark overtime expansion is pending in a Texas federal court, on May 2, 2017, the Republican House passed the Working Families Flexibility Act (H.R.1180/S.801) by a vote of 229 – 197, which would change overtime pay in the private sector, as we know it. Not one Democrat voted for the bill and Senator Elizabeth Warren called the bill a “disgrace” on Twitter. In opposition to the Act, the National Partnership for Woman & Families calls the Act “harmful, smoke-and-mirrors legislation” as it believes that the Act would set up a false choice between time and money. Why is everyone so up in arms about the Act? Let’s take a look . . .
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New York City is the third jurisdiction to pass a ban on salary history inquiries, following Massachusetts and Philadelphia.  Philadelphia’s law was set to take effect in May 2017, however, the constitutionality of Philadelphia’s ban was challenged when the Chamber of Commerce of Greater Philadelphia filed a lawsuit in federal court on April 9, 2017, claiming the ban deprives businesses of their First Amendment rights.  Read our recent article outlining the provisions of Philadelphia’s ban.  New York City’s law will take effect 180 days after the Mayor signs it, which is expected because the Mayor has expressed approval of the ban.
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This is a brief update to the court machinations in the DOL’s appeal of the Texas Court’s decision to issue a preliminary injunction barring the implementation of the Final Overtime Rule. That appeal is now before the Court of Appeals for the Fifth Circuit, generally known as an employer-friendly circuit.
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Employers in New York must scramble to assess the impact of the new substantial salary level increases that take effect on December 31, 2016. Below is a summary of the new salary levels for exempt administrative and executive employees. The levels are determined by size of employer and where the employer is located in New York. So, for the first time, the salary level required to be exempt from overtime will be different in different parts of the State. (more…)

May 16th may be a significant day for employers across the country. After more than two years of debate, analysis and overall panic from employers across the country, this is the deadline that was widely reported when the final overtime rule would be published by the Office of Management and Budget (OMB). Don’t panic. As of the time of this posting the final overtime regulations HAVE NOT been published but if it is not today, it is definitely soon. The regulation change will impact the exempt status of employees in virtually every industry and has created one of the most significant challenges to face employers in the last decade. It is high alert time.
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Fall is upon us and the holiday season will soon follow. Along with the joy of this special season often comes requests from civic groups to partner with for-profit companies for fundraising or other charitable purposes. For example, the local Rotary Club might request that its members serve as your restaurant’s wait staff for a night with all tips and donations going to a charity of its choosing; or a charitable organization may offer to assemble your company’s mass mailings in exchange for a donation.  For-profit organizations must, however, carefully consider the Fair Labor Standards Act prior to using volunteers. Because, if a court or the Department of Labor (“DOL”) deems that a volunteer actually performed the services of an employee, that person must be paid at least the minimum wage and overtime if applicable under the FLSA. (more…)

The Department of Labor’s (“DOL”) six-factor test has long been the incontrovertible standard for determining whether employers are required to pay an intern under the Fair Labor Standards Act. That may no longer be the case after the Second Court of Appeals’ decision earlier this month in Glatt v. Fox Searchligh Pictures, Inc., Nos. 13-4478-cv, 13-4481-cv (2d Cir. July 2, 2015). In Glatt, three graduate students alleged the film company violated the FLSA by not paying them minimum wage or overtime when it allowed them to work as unpaid interns. (more…)

Three and a half years ago, litigation began in the Southern District of New York (“S.D.N.Y.”) challenging the long-held assumption that interns were not “employees” under the law. These cases alleged that interns who were not paid were nevertheless entitled to minimum wage and overtime under the FLSA. Because these lawsuits enjoyed some initial success, and because unpaid internship programs were commonplace throughout the country, several copycat lawsuits were filed thereafter, establishing a significant new trend in wage & hour litigation. This tidal wave of new cases has subsided in the last three years, as most of the intervening lawsuits have been settled. But the original cases from the S.D.N.Y. are still being litigated and are currently on appeal to the Second Circuit. The lead cases have been consolidated and a decision is expected shortly. Whatever the outcome may be, that decision will likely bring clarity to the proper classification of interns. There is already a split among the Circuit Courts of Appeal, which mean the United States Supreme Court may take up this issue next term. Until then, employers should take preventative measures to avoid liability for unpaid interns. (more…)