On January 15, 2025, the United States Supreme Court issued a unanimous decision in E.M.D. Sales, Inc. v. Carrera, holding that the “preponderance of the evidence” is the applicable standard courts must use to analyze whether an exemption is proper under the Fair Labor Standards Act (FLSA). In practical terms, this means employers must
FLSA
What to Know About Recent Non-Compete and Salary Basis Changes in Light of Expected Legal Challenges
Two administrative agencies within the federal government have been busy lately publishing new rules that govern important aspects of employers’ relationships with their employees. Read more below for further updates.
DOL Rolls Out Final Rule Increasing Minimum Salary For Exempt Employees
The U.S. Department of Labor (“DOL”) has rolled out its long-awaited update to the…
U.S. Department of Labor Repeals Trump-Era Rule Favoring Independent Contractor Status, as Expected
As expected, the U.S. Department of Labor (DOL) has repealed the Trump-era rule regarding classification of independent contractors. As we discussed here, the Trump-era rule codified the “economic realities test” for use when analyzing whether a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA).
Labor advocates criticized…
DOL Announces Plans To Rescind FLSA Joint Employment Rule, Withdraw FLSA Independent Contractor Rule
Late last week, the U.S. Department of Labor (“DOL”) announced that it plans to rescind the Trump DOL rule that tightened the standards by which two or more companies could be deemed a joint employer for purposes of the Fair Labor Standards Act (“FLSA”). The same day, the DOL announced its plans to withdraw the…
Ninth Circuit Rules That Per Diem Payments Must Be Included in Regular Rate Under the FLSA
It’s common knowledge that an employee’s overtime rate is “time and a half” the regular rate of pay. But that truism begs the question: what exactly is the regular rate of pay? Earlier this week, the Ninth Circuit analyzed whether the Fair Labor Standards Act (“FLSA”) required a company to include per diem payments that…
DOL Publishes Final Independent Contractor Rule to Take Effect in March
The U.S. Department of Labor (“DOL”) published a final rule addressing independent contractor status under the Fair Labor Standards Act (“FLSA”). Independent contractor status is a critical question under the FLSA because eligible employees are entitled to the law’s protections (for example, minimum wage and overtime for non-exempt employees) but independent contractors are not. Incorrectly…
Department of Labor Publishes Final Rule Regarding Tip Pools and Tip Credits
After a lengthy and contentious rulemaking process, the Department of Labor (“DOL”) published its final rule revising its tipped-employee regulations under the Fair Labor Standards Act (“FLSA”) last week. The new rules take effect 60 days from their publication in the Federal Register, which will occur shortly. Here is a summary of the new rules’…
Department of Labor Announces Expanded Overtime Protection for over 1 Million Workers Beginning January 1, 2020
The U.S. Department of Labor announced today that an estimated 1.3 million workers will soon be eligible to receive overtime or be in line for a raise. Effective January 1, 2020, the minimum salary threshold for the “white-collar” exemptions under the Fair Labor Standards Act will be $684 per week or $35,568 per year, an…
Are Employers Required to Pay Interns?
Spring is in the air and summer is around the corner. You can see the signs everywhere. Flowers. Chirping birds. Increasing temperatures. And summer intern resumes. Experienced HR professionals know they will soon receive many resumes from eager students or recent graduates hoping to work as interns in order to gain valuable experience and networking opportunities. Often, intern candidates offer to work for free in exchange for the chance to gain experience in a job or industry.
Of course the idea, however enticing, of free labor should raise red flags. Many “for profit” business have run into trouble by failing to pay minimum wage and overtime pay to “unpaid interns” who the courts concluded were actually employees.
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Department of Labor Proposes Rule to Make More Employees Eligible for Overtime
On March 22, the Department of Labor (“DOL”) published a new proposed rule that would make several changes to current overtime law. The proposed rule, which is not yet in effect, would require that:
- Employees make at least $679 per week ($35,308 annually) to potentially be exempt from overtime. (The current requirement, which has been in place since 2004, is at least $455 per week or $23,660 annually.)
- Employers be allowed to use nondiscretionary bonuses and incentive payments such as commissions that are paid at least annually to satisfy up to 10 percent of the salary threshold.
- “Highly compensated employees” make at least $147,414 per year (compared with $100,000 under current law).
- Going forward, the DOL commit to periodically reviewing and updating the minimum salary threshold (after a public notice and comment period).
Continue Reading Department of Labor Proposes Rule to Make More Employees Eligible for Overtime