DOL Reverses Policy Limits On Liquidated Damages For Wage Violations In Pre-Litigation Settlements

Bernadette Hunton
Bernadette Hunton
04/12/2021
On April 9, 2021, the Department of Labor issued revised guidance on the agency’s use of liquidated damages to settle wage violations, rescinding limits imposed by the Trump administration less than a year ago. Under the Fair Labor Standards Act (FLSA), employers who violate certain provisions of the Act pertaining to minimum wage, overtime, and tipped employees, are liable for unpaid wages plus an additional equal amount as liquidated damages. ...
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Biden DOL Revokes Three Eleventh-Hour Trump DOL Opinion Letters

Randi Klein Hyatt
Randi Klein Hyatt
01/27/2021
In its final days under the Trump administration, the Department of Labor (DOL) had advanced three opinion letters on independent contracting and tip-pooling rules.  On Tuesday, the DOL's Wage and Hour Division revoked the letters under the Biden administration's regulatory review freeze.  The independent contracting rule would have permitted a simpler legal standard for classifying workers as independent contractors rather than employees covered...
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DOL Issues Four New Wage & Hour Opinion Letters

Clifford Geiger
Clifford Geiger
01/20/2021
The U.S. Department  of Labor issued four new opinion letters on January 19, 2021: FLSA2021-6 A trade association of staffing firms asked for an opinion on whether the Fair Labor Standards Act’s (FLSA) “retail or service establishment” exemption applies to staffing firms that recruit, hire, and place employees on temporary assignments with clients.     Qualifying for the exemption would mean there is no overtime requirement under the...
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Two New Wage & Hour Opinion Letters from DOL

Darrell VanDeusen
Darrell VanDeusen
01/12/2021
In the final weeks of the Trump administration, the Department of Labor has been busy putting out guidance on wage and hour matters.   Let’s put aside last week’s Final Rule on independent contractors, issued January 6, 2021.  That rule is expected to face substantial challenge in court, so while it is an interesting change in approach by the DOL, all should recognize the uncertainty of its lasting effect. Please turn instead to two Wage...
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DOL Issues Guidance For Tracking Employee Telework Hours

Bernadette Hunton
Bernadette Hunton
08/27/2020
In response to the increase in pandemic-generated remote work, the DOL has issued a Field Assistance Bulletin (No. 2020-5) that offers guidance (applicable to both COVID and non-COVID telework arrangements) on how businesses should manage pay for such work. The guidance emphasizes that remote workers must be paid for all work that an employer knows or “has reason to believe” was performed, and applies a “reasonable diligence” standard to...
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DOL Will No Longer Seek Liquidated Damages As A Default Policy In Wage And Hour Cases

Vincent Jackson
Vincent Jackson
06/25/2020
The Department of  Labor has pulled back from its policy of seeking liquidated damages – or “double” damages – against employers in wage and hour investigations.  On June 24, 2020, the DOL issued a field assistance bulletin which stated that it will no longer apply the default policy of seeking pre-litigation liquidated damages from employers who are found to owe back wages to workers.  Specifically, the Department will not assess...
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4th Circuit Holds That IBM Can’t Have Their Cake and Eat It Too

Kollman & Saucier
Kollman & Saucier
06/08/2020
Justin Fessler, a sales information specialist, brought suit in Alexandria, Virginia against IBM for allegedly capping his sales commission on several large transactions. Fessler claimed that IBM represented to him orally, through PowerPoint presentations, and in practice, that his sales would not be capped.   In Fessler v. IBM, the United States Court of Appeals for the Fourth Circuit reversed a lower court’s decision granting IBM’s...
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DOL Issues New Final Rule on Retail or Service Establishment Overtime Exemption

Eric Paltell
Eric Paltell
05/19/2020
On May 19, 2020, the United States Department of Labor issued a new final rule that overhauls its 60-year old regulatory guidance on the types of industries that fall within the "retail or service establishment" overtime exemption.  The change may result in more employers being able to take advantage of this exemption. Under Section 207(i) of the FLSA, an employer who mets the definition of a retail or service establishment  is excused...
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And Now for Something Completely Different: Non-Covid DOL Opinion Letters

Darrell VanDeusen
Darrell VanDeusen
04/01/2020
The NLRB is shuttered.  Everyone at the EEOC is teleworking.  In the midst of all that is going on around us it is somewhat comforting I guess to know that there is still business as usual at the Department of Labor.  Last week, the DOL Wage and Hour Administrator Cheryl Stanton issued three new Opinion Letters interpreting the Fair Labor Standards Act (FLSA).  You can find all FLSA DOL Opinion Letters at...
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DOL Issues New Guidance On Joint Employment

Vincent Jackson
Vincent Jackson
01/21/2020
On January 16, 2020, the U.S. Department of Labor (DOL) issued a final rule that will significantly revise its longstanding interpretation of joint employer status under the Fair Labor Standards Act (FLSA).  This update marks the first substantive change to the federal regulation concerning joint employer status (29 CFR Part 791) in over 60 years, and provides a new framework for assessing joint employer status when an employee performs work for...
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