Rojgar Job News

Three years ago, I floated the idea that perhaps an agency could come up with a modest “amnesty” program that would give employers a chance to get into compliance with FLSA laws, without facing the draconian consequences such an admission might entail. Now, late yesterday, the United States Department of Labor announced its own pilot program doing exactly this.  It’s being called the “PAID” program (Payroll Audit Independent Determination), and is designed to expedite “resolution of inadvertent overtime and minimum wage violations under the FLSA.” According to a press release: Employees will receive 100 percent of the back wages paid, without having to pay any litigation expenses, attorneys’ fees, or other costs that may be applicable to private actions. The PAID program facilitates resolution of potential violations, without litigation, and ensures employees promptly receive the wages they are owed.  Under this program, the Wage...

Summer feels really far away right now.  It’s just been brutally cold here in the Northeast. (How cold? Too cold for skiing.  That’s brutal by any stretch.) But summer WILL eventually come. So we’re told. So the news late Friday that the U.S. Department of Labor was scrapping the test it had released just a few years ago about interns probably went a bit unnoticed. At first blush, it might look like a big deal. But, in reality, not so much because the federal courts here (including New York as well) had already adopted the new test that the USDOL announced on Friday. I’ve covered both before, but the TL;DR version is this: The DOL is going to the “primary benefit” or “primary beneficiary” standard that had been outlined in 2015 by the Second Circuit. Law360 summarized it pretty well here: Under the [Second Circuit] test, courts have analyzed the “economic reality” of interns’ relationship with their employer to ...

Late yesterday, various press reports signaled what could be the beginning of the end for 2011 Department of Labor guidance that had greatly expanded legal claims against restaurants. The 2011 rule barred businesses (mainly restaurants) from including nontipped workers in their tip pools.  That practice – if done involuntarily – then entitles the servers or waitstaff who have contributed those tips to the tip pool to minimum wage for their hours (not the tip-credit minimum wage.) As of this morning, the DOL had not released its’ rule publicly, but according to a Law 360 report the description “suggests it would roll back the DOL’s 2011 rule amending its interpretation of the Fair Labor Standards Act to blog businesses from giving a portion of service employees’ tips to traditionally nontipped workers, such as kitchen staff.” The attack on this 2011 guidance is also making its way through the courts.  The U.S. Supreme Court is expected ...

Update: Governor Lamont vetoed this bill on July 12, 2019.   Bear with me because this is a story about how a little provision slipped in at the last minute and buried deep in a innocuously-titled bill will have big implications for the restaurant industry in Connecticut. You might have missed House Bill 5001 (now Public Act 19-198) titled “AN ACT ESTABLISHING A TASK FORCE TO STUDY WORKFORCE TRAINING NEEDS IN THE STATE.” There was no legal analysis of the bill by the the Office of Legislative Research because “it does not analyze Special Acts.”  This must just be a bill about a task force, right? Well not exactly. Through an amendment that was adopted and passed by the House unanimously at 7:07p on the last day of the General Assembly session, two little noticed sections — Section 5 and 7 — were added to this bill.  Three hours later, the Senate also passed it unanimously. These provisions don’t have anything to do with a stu...

A hearing is set for Thursday on draft legislation to “fix” a bill that had been earlier vetoed and that I discussed in a post earlier this week.  CTNewsJunkie.com was first to report on the details earlier Wednesday. The bill comes at an interesting crossroads in restaurant wage/hour law. Earlier this week, the U.S. Department of Labor released proposed guidance that would give restaurants far greater latitude in deciding on tip pools and the application of the tip credit. Indeed, the proposed federal regulation would permit a tip credit to be taken  regardless of the percentage of servers’ time that’s spent on so-called “non-service” duties, provided this side work is done during, just before, or a reasonable time after regular “service” time. The proposed Connecticut bill can be found here and would require the CTDOL to write regulations that employers can then, in good faith, rely upon. The bill would also try to limit ...

The United States Department of Labor today released new regulations that dramatically change the existing rules on when two businesses are “joint employers” under federal wage and hour laws. I’ve previously discussed the changing rules in some prior posts here and here, so you should catch up there first if this is the first time you’re hearing about it. The new rules impact so-called “horizontal” and “vertical” joint employment situations, although the DOL has changed the use of the terminology a bit. In the horizontal situation, as now outlined by the USDOL rule, the employee has an employer but another person simultaneously benefits from that work. The other person is the employee’s joint employer “only if that person is acting directly or indirectly in the interest of the employer in relation to the employee. How do you know? The USDOL has set forth four factors on whether this other person: Hires or fires the employe...

This pandemic is exhausting. There’s obviously the personal: The “work from home” novelty has worn off and now comes to tough part of trying to find the boundaries of work and home.  Each day feels like it is 16 hours long (maybe because it is sometimes). Then there’s the professional: We’ve continued to see clients with issues that they never thought they’d have to face.  Layoffs, furloughs, reduced pay & hours, and even shutdowns.  Everything has happened in just in a few weeks, it’s hard to remember the issues that seemed important even a month ago. And there’s the laws, regulations and guidances: I cannot recall another time where the law has changed so dramatically and swiftly over such a short period of time.  For lawyers who like to think through issues, it’s been a massive undertaking. I’ve have multiple calls with my peers at Shipman & Goodwin every day working through issues such as whethe...

Before I talk about some developments, I wanted to share a story about David Lat – the founder of the Above The Law blog. He remains hospitalized in serious condition according to a report, still fighting COVID-19 and battling for his life.  (Saturday Update: He’s out of ICU!) He’s just 44 years old with a 2 year old son. I had one of my first encounters with the Above the Law blog way back in December 2007.  It was, frankly, exciting that my little employment law blog that I had just started a few months prior — got a shoutout.  My traffic spiked and I felt strangely validated.  I had other cites too over the years – and David couldn’t be more kind about it. Since that time, our paths have crossed multiple times. Five years ago, I had the opportunity to do a panel discussion with David on technology and the law. And he was as kind in person as you would hope. He had taken a train from NY to attend and shared his stories.  It...

The flood of information being produced by the government on the pandemic continues. Last night, the U.S. Department of Labor published a second round of guidance that is designed to help employers manage Paid Sick Leave and paid FMLA leave (EPSL and FMLA+).  (H/T FMLA Insights for the summary.) This is  different than the initial guidance that came out earlier this week because it answers some important questions that had been left unresolved. Here’s some of the items to know about: Just like FMLA, employees can be required to submit documentation to support the need for leave. Employees must generally take the leave in full-day increments. The DOL has clarified that intermittent leave  can be taken for child care reasons but only with the employer consent. Importantly, resolving an issue that I discussed on this blog before, an employee is not eligible for paid leave during a furlough or temporary layoff. Employees are also not allowed to “top off” ...

The United States Department of Labor recently updated its guidance on the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (FMLA+). My colleagues at Shipman & Goodwin recapped the new guidance here. One of the key takeaways from is that under the USDOL’s prior guidance and regulations, it was not clear if an employer could require an employee to use accrued leave during the 10-week period of FMLA+. In its recently issued guidance, the USDOL clarified that an employer can require employees to use accrued paid leave under the employer’s policies to cover absences under the FMLA+. The practical effect is that an employer might be able to require employees to use up their accrued leave while out on FMLA+, potentially exhausting their leave balances. Once employees exhaust their accrued leave, then they still will be able to receive 2/3 pay for the remainder of the FMLA+ leave. Sounds clear, right? Well, not exactly. The regulations ...