The Employer’s Wage and Hour Advisor

On October 24, 2019, Governor Gretchen Whitmer directed the Michigan Department of Labor and Economic Opportunity to begin the rulemaking process to potentially raise the salary level for overtime exempt classifications in Michigan.  The Governor’s press release did not indicate what salary level should be proposed in the rulemaking.   

The U.S. Department of Labor (“DOL”) has released new regulations governing the exempt status of executive, administrative and professional employees under the Fair Labor Standards Act (“FLSA”), also known as the “white collar” exemptions. Under the FLSA, an employee is exempt from overtime pay only if he or she performs certain duties and earns at least a set minimum salary.

For the first time in over 50 years, the U.S. Department of Labor (DOL) has proposed updates to the Fair Labor Standards Act’s (FLSA) “regular rate of pay” regulations. Specifically, the DOL published a proposed rule that clarifies the types of pay and benefits employers must include when determining a nonexempt employee’s overtime pay rate. While this proposed rule has not become final or effective as of yet, if implemented, the update could provide employers with significant relief from inadvertent overtime miscalculations. 

The wait is over. Yesterday, the U.S. Department of Labor (“DOL”) released its proposed rule that would amend the regulations governing the exempt status of executive, administrative and professional employees under the Fair Labor Standards Act (“FLSA”), also known as the “white collar” exemptions.

The holiday season is the perfect time to reflect on the prior year and plan for the upcoming one.  In 2018, a spotlight was directed at sexual harassment issues, leading to significant upcoming changes in some states’ employment laws.  Likewise, mandatory paid sick leave became a major 2018 issue that has led to changes for many employers.

On Friday, December 14, 2018, Governor Rick Snyder signed legislation revising the Earned Sick Time Act, which the Michigan legislature adopted in response to a ballot initiative. Governor Snyder also signed a bill softening planned increases to the state’s minimum wage. We previously reported on the original versions of these bills here.

Once again, the California Supreme Court has held that California’s wage and hours laws do not always follow well-established rules applicable to claims under the federal Fair Labor Standards Act (the FLSA).  More specifically, on July 26, 2018, in Troester v. Starbucks Corp., the California Supreme Court rejected Starbucks’ argument that the FLSA’s de minimis exception to compensable working time applied to wage claims brought under California wage and hour laws.  Instead, the court ruled that California employees must be paid for every minute (and possibly every second) of working time.

On May 21, 2018, the Supreme Court upheld the use of class action waivers in employment arbitration agreements, which is one of the few options employers have to limit costly “bet the business” class actions.  Prior to this decision, the National Labor Relations Board (NLRB) and a few appellate courts had held that these waivers were invalid because they conflicted with the National Labor Relations Act (NLRA), the federal law governing collective bargaining and other labor union issues. In its recent decision, Epic Systems Corp. v. Lewis, the high court rejected that conclusion and reinstated the practice of using class action waivers nationwide.  In light of this ruling, employers should consider revising their policies or adopting new arbitration agreements.

The Department of Labor (DOL) surprised many observers by announcing it would issue a new proposed rule on calculating the “regular rate of pay” for determining overtime wages in its recently issued 2018 regulatory agenda. The DOL has only stated that it intends to “clarify, update, and define regular rate requirements” for the Fair Labor Standards Act, and that the proposed rule will be issued in September 2018.

The Department of Labor (DOL) recently issued its first set of opinion letters since 2010, when the Obama administration suspended the practice of issuing such guidance. The return of opinion letters is welcome news for employers. Among other things, obtaining the DOL’s informal opinion on a wage and hour compliance question may help avoid costly disputes and, in certain circumstances, provide affirmative defenses to liability in the event of litigation.