Avid readers of this blog will recall three prior postings about a wage and hour dispute under the Fair Labor Standards Act (“FLSA”) between an off-shore tool-pusher, Michael Hewitt, and his prior employer, Helix Energy Solutions Group, Inc.
Continue Reading SCOTUS Weighs In On Day Rate Pay
In Hamilton v. Dallas County, 2020 U.S. Dist. LEXIS 223831, 2020 WL 7047055, at *2 (N.D. Tex. Dec. 1, 2020), a federal district court judge dismissed a lawsuit by female Dallas County detention officers alleging that a gender-based decision related to weekend work schedules violated Title VII of the Civil Rights Act of 1964. At the root of that case was the fact that, although male and female officers received the same number of days off during a workweek, only male officers were permitted to take both weekend days off. The female officers complained about the scheduling policy, but the County maintained the policy, citing safety concerns.
Continue Reading The Fifth Circuit Mulls “Ultimate Employment Decision” Rule Under Title VII
The Department of Labor’s Wage and Hour Division is expected to propose new rules on independent contractor classification and overtime entitlement requirements in the coming weeks. The proposals would alter the qualifications for certain employees to receive overtime payments under the Fair Labor Standards Act when they work in excess of 40 hours in one week.
Continue Reading Upcoming Proposed Changes to DOL’s Independent Contractor and Overtime Rules
Last Thursday, the U.S. Department of Labor (“DOL”) published in the Federal Register its newly-proposed rule regarding independent contractor vs. employee classification under the Fair Labor Standards Act (“FLSA” or the “Act”). Businesses have anticipated the release of this proposed rule from the Biden administration’s DOL since the DOL withdrew a more employer-friendly, Trump-era independent contractor rule in May 2021 that had not yet gone into effect.
Continue Reading DOL Proposes Updates to Independent Contractor Requirements
On March 14, 2022, the Equal Employment Opportunity Commission (“EEOC”) issued a technical assistance document providing guidance when it comes to claims of discrimination against employees and applicants with caregiving responsibilities in connection with the COVID-19 pandemic (“Guidelines”). The Guidelines, entitled “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws”, examine discrimination against employees and applicants based on pandemic caregiving responsibilities, noting that such discrimination may violate Title VII of the Civil Rights Act of 1964 (Title VII), Titles I and V of the Americans with Disabilities Act of 1990 (ADA) or Sections 501 and 505 of the Rehabilitation Act of 1973 (Rehabilitation Act), or other federal laws.
Continue Reading EEOC Provides New Guidance on COVID-19 Pandemic and Caregiver Discrimination
On September 9, 2021, the Fifth Circuit issued a 12-6 opinion in Hewitt v. Helix Energy Solutions Group, Inc., 15 F.4th 289 (5th Cir. 2021) that clarified the requirements for day rate workers to fall within one of the FLSA’s exemptions from overtime payment. This ruling was hotly-contested because it made clear that employers must take additional steps to properly classify their day rate workers as exempt employees, even when those employees clearly exceed the financial threshold of the highly compensated exemption. Many expect the decision to substantially affect the course of day rate FLSA litigation in the Fifth Circuit, especially misclassification disputes within the energy industry.
Continue Reading Cert Filed in Hope Supreme Court Will Reevaluate Fifth Circuit’s FLSA OT Ruling
On October 11, 2021, Governor of Texas, Greg Abbott, issued Executive Order GA-40, which proscribes entities from compelling individuals to receive the COVID-19 vaccine who object “for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.” Offending entities can be fined up to $1,000 for failing to comply with this order.
Continue Reading Governor Abbott Issues Executive Order Prohibiting Vaccine Mandates in Texas
In the first four months of 2021, Virginia, New Mexico, New York and New Jersey passed laws legalizing or decriminalizing, in some form, recreational marijuana. Exactly how these laws will affect employers in these states is still an open question, but for now, employers should understand the nuances of the laws so they can prepare for the emerging reality that is legal marijuana.
Continue Reading The Trend Towards Legal Recreational Cannabis: Considerations for Employers
Most employers know the Fair Labor Standards Act requires employees to be paid time-and-one-half for all hours worked over 40 in a workweek unless an exemption applies. But what some employers don’t realize is, for the most-commonly-used overtime exemptions to apply, employees must not only satisfy various “duties” tests, but they must also be paid on a “salary basis” at not less than $684 per week. Payment on a salary basis means an employee regularly receives a predetermined amount of compensation each pay period on a weekly, or less frequent, basis.
Continue Reading Upcoming Fifth Circuit Hearing to Address FLSA Day-Rate Issues
The U.S. Department of Labor recently issued guidance to state unemployment insurance agencies, expanding the categories of workers that are eligible for Pandemic Unemployment Assistance. The PUA program was created in March 2020 to provide payments to certain people affected by COVID-19, as well as independent contractors and gig workers who do not usually qualify for unemployment insurance. While funded by the federal government, states are responsible for administering it.
Continue Reading Department of Labor Expands Unemployment Insurance Eligibility To Include Workers Who Declined Work Due to Pandemic Safety Concerns