Wage & Hour Counsel : Wage & Hour Lawyer & Attorney : Littler Mendelson Law Firm : Employment Law, Labor Relations

The Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) has released a proposed rule amending the hours of service requirements for drivers of property-carrying commercial motor vehicles (CMVs). As discussed in a news release, the proposal would keep the “34-hour restart” provision allowing drivers to restart the clock on their weekly 60 or 70 hours by taking at least 34 consecutive hours off-duty, but that period would have to include two consecutive off-duty periods from midnight to 6:00 a.m. Drivers would be allowed to use this restart only once during a seven-day period. To learn more about the proposed rule and its implications for employers, please continue reading at Littler's D.C. Employment Law Update blog.

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In a significant victory for Massachusetts healthcare employers, on December 20, 2010, the Massachusetts federal court applied the state overtime exemption available to hospitals, nursing homes, and certain other healthcare employers, and dismissed all 13 state wage-law claims in Cavallaro v.UMass Memorial Health Care. Plaintiffs in the case, a class action filed on behalf of 13,000 current and former employees of UMass Healthcare and its subsidiaries, claimed the hospital did not compensate them for time worked: (1) during meal breaks that were automatically deducted from wages; (2) before and after scheduled shifts; and (3) time spent in training sessions. To learn more about the Cavallaro decision and its implications for employers, please continue reading at Littler's Healthcare Employment Counsel blog.

Photo credit: MSRPhoto

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New York law has long prohibited employers from paying workers less than the minimum wage or failing to pay proper overtime. This newly enacted piece of legislation, the Wage Theft Prevention Act, now adds strict new penalties for failure to comply with minimum wage and overtime laws. The new law also amends current wage notification requirements for employers.

Under the Wage Theft Prevention Act, in the event of a wage payment violation, an employer may be liable for up to twice the amount that was due as wages as well as other penalties and legal fees. The law also prohibits retaliation against employees who exercise their rights under the statute.

Additionally, the new law requires notifications to be provided to employees in their native language at the time of hire and on or before each February 1st. Previously the law required such a notification to include the rate of pay and regular paydays. The new law adds several additional requirements to the contents of the notification, including more detail on the basis of pay (i.e., whether the employee is paid on a salary, hourly, piece or commission basis, etc.) and information regarding the employer, such as its address and phone number. There are also new detailed requirements concerning the acknowledgment of the required notification, and a new records retention requirement of 6 years.

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The long-awaited revisions to New York's hospitality industry wage regulations have finally become official. They go into effect January 1, 2011, but full compliance is not required until March 1, 2011. Here are some highlights:

Minimum and Overtime Wage: The tip credit rate for food service workers is increased from $4.65 to $5.00 per hour. The new overtime rate for tipped food service workers will be $8.63. All nonexempt employees who work in the hospitality industry, including office workers employed by a hotel or restaurant, must be paid by the hour: shift pay, weekly salary or other non-hourly rate bases will no longer be permitted.

Spread of Hours: All nonexempt employees are eligible for spread of hours pay (i.e., an additional hour of pay at the minimum wage) if the time between the beginning and end of their workday exceeds ten hours.

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Puerto Rico is a unique jurisdiction from a payroll tax perspective because Puerto Rico private sector employees are not subject to federal income tax withholding. Puerto Rico employees generally owe personal income tax on employment wages earned and are subject to withholdings required by the Federal Insurance Contributions Act (FICA) and the Federal Unemployment Tax Act (FUTA).

As part of the tax reform recently proposed by the Governor of Puerto Rico, the Puerto Rico Secretary of the Treasury issued Administrative Determination No. 10-09 (AD 10-09), which exempts employers from their obligation to withhold Puerto Rico income tax from wages paid in December 2010 and from the 2010 Christmas Bonus. (Note: this is not a discretionary bonus.) AD 10-09 exempts employers and withholding agents from their obligation to withhold income tax at source from wages paid in daily, weekly, biweekly, bimonthly, and monthly payroll periods in December 2010. The Administrative Determination also exempts employers from the requirement to withhold income tax from the 2010 Christmas Bonus.

Any income that is not considered wages or designated as the statutory Christmas bonus is subject to Puerto Rico income tax withholding. Employers should continue making the withholdings required by federal law, including the FICA and FUTA taxes, and other applicable local and employee voluntary deductions.

This entry was written by Niza Motola.

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The U.S. Department of Labor informed Congress today that the President intends to nominate Leon Rodriguez as Administrator of the Wage and Hour Division.

The top job at DOL’s Wage & Hour Division has been vacant during the Obama Administration. The President’s first nominee, Lorelei Boylan, withdrew from the confirmation process in October 2009. Ms. Boylan’s confirmation was stalled because of the controversy over the nomination of Solicitor of Labor Patricia Smith (confirmed on February 4, 2010); Ms. Boylan worked for Ms. Smith at the New York Department of Labor.

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Beginning on December 13, 2010, the U.S. Department of Labor’s Wage and Hour Division will begin assisting employees to find attorneys, and providing employees and their attorneys with information and documents gathered during investigations.

In the past, the Department of Labor (DOL) has fought tenaciously to limit the information and documents it was required to disclose to the public – often through Freedom of Information Act (FOIA) litigation. The DOL often refused requests by employers for information and documents in investigation files. The DOL’s policy was to refuse disclosure of any information or documents until an investigation was closed. Even after an investigation was closed, the DOL would release investigation files only in response to a FOIA request and only as required by the FOIA. The DOL would withhold and refuse to release, for example, any information or documents that could reveal the identity of the complaining employee or any employee providing a witness statement. The DOL would also protect company confidential and proprietary information from disclosure.

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Pennsylvania’s Minimum Wage law requires that employees who work in excess of 40 hours in a workweek be paid overtime at the rate of 1½ times the worker’s regular rate of pay. The law exempts “ [d]omestic services in or about the private home of the employer” from the minimum wage and overtime requirements. According to regulations enacted by the PA Department of Labor and Industry (“DOLI”), however, the exemption applies only to the services of aides who are hired directly by the householder, not to the services of aides who work for a third party agency. On November 17, 2010, in Bayada Nurses, Inc v. Department of Labor and Industry, the Pennsylvania Supreme Court unanimously upheld DOLI regulations as consistent with the intent of state law and held that a home health agency cannot rely on the “domestic services” exemption to avoid paying overtime to its home health aides because it is a third party agency employer.

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