FLSA and Belo Plans
In 1938, Franklin D. Roosevelt signed into law the Fair Labor Standards Act (FLSA). The FLS set the minimum wage, introduced the forty-hour work week, restricted child labor, and set overtime pay regulation. But, as employers soon realized, the overtime provision requiring time-and-a-half to be paid often creates complicated bookkeeping. To remedy this, employers were permitted to institute a Belo plan. This plan allows employers to pay employees who work unpredictable schedules a fixed salary. Employers like the simplicity, and employees enjoy the steady paycheck. To qualify as a Belo plan under the FLSA, though, four requirements must be met: The employee
Upcoming Department of Labor Rule Change Clamps Down on Independent Contractors
Soon, a new Department of Labor rule will make it more difficult for someone to qualify as an independent contractor. On January 10, 2024, the Department of Labor announced a rule that provides updated guidance on whether an individual is an employee or independent contractor under the Fair Labor Standards Act (“FLSA”). The rule, which will go into effect on March 11, 2024, replaces a rule promulgated under the Trump administration that made it easier for individuals to qualify as independent contractors. In its press release, the Department of Labor argued that the old rule caused a “misclassification of employees as
NLRB Cracks Down on Employer Handbook Rulemaking
On August 2, 2023, the National Labor Relations Board (“NLRB” or the “Board”) published its long-anticipated decision in Stericycle on how employer rules would be interpreted.[1] This ruling overruled the prior standard, Boeing,[2] and returned to a version of the rule announced in Luther Heritage Village-Livonia.[3] While the Boeing decision was more permissive of broad employer rules, the Stericycle decision creates a burden-shifting test that will force employers to be more cautious in their rulemaking. Under Stericycle, it must first be shown that “a challenged rule has a reasonable tendency to chill employees from exercising their Section 7 rights.”[4] The Board
Stericycle Summary
On August 2, 2023, The National Labor Relations Board (“NLRB”) overruled the prior decisions in Boeing Co. and LA Specialty Produce Co. because they permitted employers to adopt “overbroad work rules” that chill employees’ exercise of their rights under Section 7 of the National Labor Relations Act. The NLRB found that the former standard failed to account for the economic dependency of employees on their employers, gives too little weight to the burden a work rule could impose, gives too much weight to employer interests, and does not require the employer to make rules only to promote legitimate and substantial
NLRB Joint Employer Status Rule Change
On October 26, 2023, the National Labor Relations Board (NLRB) issued its Final Rule broadening what entities can be considered “joint employers” under the National Labor Relations Act. If considered a joint employer, a business can be held liable for the actions of the other employer it allegedly has control over and must engage in collective bargaining relating to the “essential terms and conditions of employment” over which it has control. Under the previous 2020 rule, an employer had to ‘“possess and exercise . . . substantial direct and immediate control’ over essential terms and conditions of employment.” 1 The NLRB
EEOC Proposes Updates to Workplace Harassment Guidelines for First Time in 25 Years
By a 3-2 vote, the Equal Employment Opportunity Commission (EEOC) published and invited public comment on draft guidelines on responding to workplace harassment. The amended guidelines have the potential to be the first amendments made to the EEOC’s workplace harassment guidelines in almost 25 years. Similar efforts to amend the guidelines stalled under the Trump administration in 2017. The Commission lists its two goals as, “preventing and remedying systemic harassment, and protecting vulnerable workers and people from underserved communities from harassment.”1 The proposed guidelines reflect and sometimes build upon recent changes in law. For example, in Bostock v. Clayton County, the U.S. Supreme Court held that held that
DOL Reverts to Old Ideas for New Construction Worker Wages
On August 8, 2023, the Department of Labor (DOL) announced their final rule (Final Rule) revising the Davis-Bacon Act (DBA) and Davis-Bacon Related Acts (Related Acts). The DBA and Related Acts require contractors and subcontractors that perform work on federal and federally funded construction projects to pay a government-determined prevailing wage and benefit rate on an hourly basis to on-site construction workers. While the Final Rule makes several changes to the DBA and Related Acts, (the list is too exhaustive to cover in a single blurb such as this) it’s the change regarding how the prevailing wages are determined that is
NLRB ELECTION RULE CHANGES
NLRB Overturns 2019 Trump-era Election Procedures in Two Recent Rulings This August, the National Labor Relations Board (“NLRB”) issued two rulings that will have important implications for nonunion employers. On August 25, 2023, the NLRB issued its decision in Cemex Construction Materials Pacific, LLC, where the NLRB partially returned to a decades-old test from Joy Silk Mills, Inc, changing how and when unionizing elections can be held. Under the prior Linden Lumber rule, an employer had the right to a secret ballot election before unionization would be permitted. However, under the new Cemex rule, it is easy for the employer to lose
5TH CIRCUIT EMPLOYMENT DECISION
Nine female detention service officers triggered one of the most significant developments in employment discrimination laws in recent memory when they sued the Dallas County Sheriff’s Department for not allowing them to take weekends off. Hamilton v. Dallas County, No. 21-10133, 2023 WL 5316716 (5th Cir. Aug. 18, 2023). The Sheriff’s Department had instituted an admittedly sex-based policy that allowed male officers to take both weekend days off, while only allowing female officers to take two weekdays off or one weekend day and one weekday off. The 5th Circuit commented, “Bottom line: Female officers never get a full weekend off.” The
New Standard for Workplace Rules and Policies
On August 2, 2023, The National Labor Relations Board (“NLRB”) overruled the prior decisions in Boeing Co. and LA Specialty Produce Co. because they permitted employers to adopt “overbroad work rules” that chill employees’ exercise of their rights under Section 7 of the National Labor Relations Act. The NLRB found that the former standard failed to account for the economic dependency of employees on their employers, gives too little weight to the burden a work rule could impose, gives too much weight to employer interests, and does not require the employer to make rules only to promote legitimate and substantial