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

The Department of Labor’s Wage and Hour Division has issued three new fact sheets on unlawful retaliation. One fact sheet discusses retaliation under the Fair Labor Standards Act (FLSA). The FLSA makes it a violation for any person to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.” To learn more about the FLSA fact sheet and its implications for employers, please continue reading at Littler's Washington D.C. Employment Law Update.

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On December 15, 2011, the Department of Labor’s Wage and Hour Division (WHD) issued its much-anticipated proposed rule that could make more than a million domestic caregivers eligible to receive minimum wage and overtime pay under the Fair Labor Standards Act (FLSA). According to the WHD, the home healthcare industry has changed since the FLSA regulations governing home care employees were enacted more than 35 years ago. To that end, the proposal seeks to revise the FLSA’s companionship and live-in worker regulations to limit the types of duties that render a home caregiver exempt from FLSA requirements, clarify the type of activities and duties that may be considered “incidental” to the provision of companionship services, amend the recordkeeping requirements for live-in domestic workers, and specify that the exemption is limited to care givers employed by the individual, family or household using the services only. Third-party employers, including in-home staffing agencies, would not be entitled to claim the exemption even if the worker is jointly employed by the third party and the family/household. To learn more about the proposed rule and its implications for employers, please continue reading at Littler's Washington D.C. Employment Law Update.

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By Josh Kirkpatrick

On May 9, 2011, the U.S. Department of Labor announced the launch of its first smartphone application, an electronic timesheet employees can use to track their hours of work, including breaks. According to a DOL press release, the information tracked through this application “could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.” The app, currently available in English and Spanish and only for iPhone, iPad and iPod Touch devices, allows users to input their hourly rate of pay and calculates the amount of wages due to the worker. Additionally, through the app, users can add comments related to their work hours; view a summary of work hours in a daily, weekly and monthly format; and email the summary of work hours and gross pay as an attachment. A glossary, limited information regarding wage and hour laws, and contact information for the DOL are accessible through the app. The agency stated it will pursue the development of updates that allow employees to track their tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest, among other pay information.
 

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By Kimberly Yates

On April 5, 2011, the Wage and Hour Division of the U.S. Department of Labor published its final amendments to regulations interpreting the Fair Labor Standards Act of 1938 (FLSA) and the Portal-to-Portal Act of 1947.

The new regulations provide specific guidance pertaining to ownership of employee tips, a description of permissible tip pooling arrangements, and clarification of the required notice to a tipped employee concerning an employer’s intent to utilize the FLSA’s tip credit. The DOL explains the amendments were driven by a need to revise regulations that are out of date as a result of “subsequent legislation.” The final amendments to the regulations, which differ in some significant respects from those the DOL originally proposed in 2008, will be effective May 5, 2011.

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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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The Department of Labor (DOL) recently released its Final Strategic Plan for the next five-year period. Although this document merely outlines the agency’s general goals, it does provide some insight as to what the agency deems most important and where it will focus its resources, enforcement efforts and regulatory activity in the upcoming years. The Plan is organized around five strategic goals. To learn more about this development, please continue reading at Littler's D.C. Employment Law Update blog.

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The Department of Labor’s Wage and Hour Division (WHD) has released a fact sheet to help employers comply with the lactation break time obligations established by the new health care law. The Patient Protection and Affordable Care Act (“Affordable Care Act”) amends section 7 of the Fair Labor Standards Act (FLSA) to require employers to provide rest breaks and suitable space for employees who are nursing mothers to express breast milk for up to one year after the child’s birth. To learn more about the fact sheet, please continue reading at Littler's Washington D.C. Employment Law Update blog.

Photo credit: camilla wisbauer
 

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On July 19, 2010, in Jackson v. Alpharma Inc., the United States District Court for the District of New Jersey held that Alpharma, Inc.’s pharmaceutical sales representatives qualify as exempt administrative employees under the Fair Labor Standards Act (“FLSA”). The court’s unpublished opinion relies in part on the Third Circuit’s holding in Smith v. Johnson & Johnson, 593 F.3d 280 (3d Cir. 2010).

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On May 19, 2010, the U.S. Department of Labor announced the publication of final regulations concerning child labor. Included in the regulations are increased penalties for child labor violations.

The maximum penalty for repeatedly or willfully violating the Fair Labor Standard Act’s minimum wage and maximum hours provisions, relating to wages, increased from $1,000 to $1,100 per violation.

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In April 2010, the U.S. Department of Labor (DOL) issued a new Fact Sheet discussing the circumstances under which “interns must be paid the minimum wage and overtime under the Fair Labor Standards Act (FLSA) for services that they provide to ‘for-profit’ private sector employers.” At the same time, California’s Division of Labor Standards Enforcement (DLSE) stated in an opinion letter that it will apply the same rules that the DOL has applied in the past and will continue to apply as described in the Fact Sheet.

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In its first Administrator Interpretation Letter, the Wage and Hour Division of the U.S. Department of Labor (DOL) announced today that mortgage loan officers do not qualify as bona fide administrative employees under section 13(a)(1) of the Fair Labor Standards Act (FLSA). In reversing its prior stance on the issue, the DOL withdrew two opinion letters issued on September 8, 2006 and February 16, 2001, in which it previously had found that loan officers were exempt administrative employees.

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Employers beware! This is the message emanating loud and clear from the Obama Administration's Department of Labor. Secretary of Labor Hilda Solis recently announced that the Department is dramatically increasing its enforcement of federal employment laws with an additional 250 new wage and hour investigators. This influx of new investigators boosts the departmental investigative staff by a full one third.

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