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The Department of Labor Wage and Hour Division and the National Labor Relations Board released a Memo of Understanding announcing that the two agencies will be collaborating “to strengthen the agencies’ partnership through greater coordination in information sharing, joint investigations and enforcement activity, training, education, and outreach.” The MOU took effect upon both agencies’ approval in early December and will remain in effect for five years.
Continue Reading DOL, NLRB Will Collaborate on Investigations, Share Information

On November 10, 2021, three federal agencies tasked with enforcing workplace laws announced a joint initiative to combat retaliation in the workplace.  As a refresher, the EEOC protects a worker’s right under Title VII and other non-discrimination laws to enjoy a workplace free from harassment and discrimination.  The DOL enforces federal labor standards per the Fair Labor Standards Act, as well as health and safety regulations through OSHA.  The NLRB generally protects a worker’s right to organize to improve working conditions, among other rights guaranteed by National Labor Relations Act. …
Continue Reading EEOC, DOL, and NLRB Announce Joint Initiative to Protect Workers from Retaliation for Exercising their Rights in the Workplace

In December of 2020, the DOL under President Trump issued a final rule dispensing with the longstanding “80/20” tip credit rule—whereby an employer was only required to pay a tipped-employee the full minimum wage rate for non-tip producing work if the employee spent in excess of 20% of their workweek performing such work. In early 2021, the DOL under President Biden delayed the effective date of the Trump-era rule (initially until April 30, 2021, then again until December 31, 2021).
Continue Reading DOL Resurrects 80/20 Tip Rule; Now With More Bite

On August 13, 2021, the U.S. Department of Labor’s (“DOL”) Occupational Safety and Health Administration (“OSHA”) updated its guidance for employers in an effort to further protect workers from SARS-CoV-2, the virus that causes COVID-19 (“COVID”).  This update (the “Guidance”) reflects recent COVID developments, including the increased spread of the Delta variant and the July 27, 2021 Centers for Disease Control and Prevention’s (“CDC”) updated guidance, and is intended to help employers protect workers who are:  unvaccinated or partially vaccinated, otherwise at-risk, and/or fully vaccinated but located in areas of substantial or high community transmission.
Continue Reading The U.S. Department of Labor Updates its Workplace COVID-19 Guidance to Protect Unvaccinated and Other At-Risk Workers

The legal landscape for defining “employers,” “employees,” and “independent contractors” can be quite dynamic, as this past year has illustrated. In January 2021, the Department of Labor issued an employer-friendly independent contractor rule that would have departed from the agency’s typical balancing test, but it formally withdrew this rule in early May with the change in administration. The DOL’s independent contractor rule is intended to provide guidance to employers when determining whether a worker is an employee or an independent contractor. For employers, this is an important distinction because the FLSA’s overtime and minimum wage protections apply only to employees, not independent contractors. Because courts and employers sometimes struggle to find this line using the economic realities test and its iterations, the Trump-era independent contractor rule aimed to provide a clearer definition of “employee,” as opposed to “contractor.” The DOL has not yet proposed a new independent contractor test, but employers should be mindful that the Biden administration may potentially announce a new rule on this topic.
Continue Reading Recent Shifts In The Independent Contractor v. Employee Classification Rules

On March 22, 2021, Marty Walsh, the two-term Boston mayor, was confirmed as the Labor Secretary by the United States Senate in a 68-29 vote.  He becomes the first union leader to run the Department of Labor in over four decades. Workplace safety will be one area that we can expect to undergo significant change under Walsh. …
Continue Reading DOL and OSHA: Agency Updates

Previously, we wrote about a final rule issued by the Department of Labor (DOL) during the last days of the Trump administration addressing the appropriate test for classifying independent contractors under the FLSA. We noted that the future of the rule was in question because it was not set to go into effect until March 8, 2021. This delayed implementation provided an opportunity for the incoming Biden administration to freeze or withdraw the rule.
Continue Reading DOL Freezes Rule on Independent Contractor Classification Test under the FLSA and Withdraws Several Opinion Letters

In the last weeks of the Trump Administration, the Department of Labor published its final rule for determining whether an individual is an employee or independent contractor under the Fair Labor Standards Act. The distinction between an employee and independent contractor is of critical importance because independent contractors are not entitled to the benefits of the FLSA, namely minimum wage and overtime.
Continue Reading DOL Issues Final Rule on Independent Contractor Classification Test under the FLSA