- Written by: John E. Falcone
The proposed rule previously issued by the U.S. Department of Labor (DOL) to clarify who qualifies as an independent contractor under the federal wage and hour law was issued as a final rule today, January 9. The rule will take effect on March 11. The federal rule concerning independent contractors has been confusing in recent years because it has periodically been revised depending upon whether a Democratic or Republican presidential administration has been in power. The new rule will make it more difficult to classify workers as independent contractors.
- Written by: John E. Falcone
A few months ago, we notified you about the U.S. Department of Labor‘s proposed new rule to increase the salary level for an employee to be exempt from overtime pay. The salary level is one of the requirements that must be met for an employee to be exempt. The proposed new rule would raise the required salary level to $1,059 per week ($55,068 per year for a full-time worker). The increase reflects the 35th percentile of weekly earnings of full-time salaried workers in the lowest-wage census region (currently the South). The DOL has now announced that it anticipates finalizing the rule in April, 2024.
- Written by: John E. Falcone
The National Labor Relations Board (NLRB) recently released a final rule that expands the standard for determining when two employers that conduct business together are considered to be joint employers, thus being liable for each other’s unfair labor practices and labor law violations. Under the old rule, an employer could be considered a joint employer if it had “direct and immediate control” over the essential terms and conditions of employment, such as wages, benefits, work hours, hiring, firing, discipline, direction and supervision. The new rule provides that two entities are considered joint employers if they share or co-determine an employee’s essential terms and conditions of employment.
- Written by: John E. Falcone
The Fair Labor Standards Act (FLSA) requires employers to pay overtime compensation when nonexempt employees work more than forty hours in a week. Longstanding regulations interpreting the FLSA permit employers to "round" an employee's clocked start and end times for ease in calculating time worked. Time clocks are not required, but when time clocks or an automated system are used, rounding time must not result in systematic or routine underpayment "over a period of time" for work performed.
The actual regulation is 29 C.F.R. § 785.48(b):
(b) “Rounding practices.” It has been found that in some industries, particularly where time clocks are used, there has been the practice for many years of recording the employees' starting time and stopping time to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour. Presumably, this arrangement averages out so that the employees are fully compensated for all the time they actually work. For enforcement purposes this practice of computing working time will be accepted, provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.
An example of a rounding practice from a recent case involved an automated timekeeping system in which employees clock in and out at the beginning and end of their shifts. The system records the exact times in and out, and then applies a rounding policy. Clocked times within 6 minutes of a shift’s scheduled start or end are rounded to the scheduled time for compensation purposes. For example, an employee who clocks in at 8:56 a.m. for a 9:00 a.m. shift would not be paid for those four minutes. Likewise, an employee who clocks out early at 4:54 p.m. for a shift ending at 5:00 p.m. would still be paid for those unworked six minutes.
The regulations do not define precisely what constitutes “over a period of time”, and courts that have examined this issue also have not adopted a precise standard. Many of the cases examine a contested rounding practice over the period of one year, and some apply even longer periods.
A facially neutral timekeeping system that rounds employee time up or down is permissible as long as it does not result in undercompensation over the long run. It is the long-term average that counts.
John Falcone and Luke Malloy handle employment law matters at PLDR Law. Feel free to contact us if you have questions about this matter.
- Written by: John E. Falcone
Political and religious discussions in the workplace are increasingly causing problems for employers in these contentious times. Employees often have strong opinions about those topics, and expressing those opinions can cause workplace discord.
- Written by: John E. Falcone
The U.S. Department of Labor (DOL) has issued its anticipated proposed new rule to increase the salary level for an employee to be exempt from overtime pay. In order for an employee to be exempt, the employee currently must be paid a salary of at least $684 per week, and must meet certain duties tests. The most common exemption categories are known as the “white collar” exemptions: executive, administrative and professional. The exempt duties generally fall within those categories, and each category has different criteria. The new rule would raise the required salary level to $1,059 per week ($55,068 per year for a full-time worker).
- Written by: John E. Falcone
Last month we alerted you to the change in policy by the U.S. Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security (DHS), which announced that virtual review of I-9 employment forms will no longer be allowed effective July 31, with a grace period extending to August 30. This will resume the pre-Covid policy of requiring employers to conduct an in-person physical inspection of a new hire’s documents for the I-9 verifications.
- Written by: John E. Falcone
Are Virginia employers required to provide employees with rest periods and meal breaks? Contrary to popular belief, the answer is “No”. Although most employers voluntarily provide their full-time employees meal breaks and rest periods, neither Virginia nor federal law requires them. One exception is Virginia’s child labor law, which prohibits an employer from requiring or permitting a child under 16 years of age to work for more than five hours continuously without a lunch period of at least 30 minutes.
- Written by: John E. Falcone
On June 29, the U.S. Supreme Court issued a decision in Groff v. DeJoy that made it more difficult for employers to deny religious accommodations requested by employees.
- Written by: John E. Falcone
All employers are required to verify the employment eligibility of new hires by completing the federal I-9 form for each hire. The form is available on the U.S. Citizenship and Immigration Services website at USCIS Form I-9. Both the employer and employee must complete the form. Prior to the pandemic, employers were required to conduct an in-person physical inspection of the new hire’s documents, but that rule was relaxed during the pandemic to allow virtual review for employees working remotely. The U.S. Immigration and Customs Enforcement (ICE) has now announced that virtual review will no longer be allowed effective July 31, with a grace period extending to August 30.
This resumption of the old rule requiring in-person inspection will cause headaches for many employers who hire remote workers. The new hires will either be required to come to the employer’s facility to complete the process, or the employer will be required to hire an immigration consultant in the location where the employee lives. For new hires who live a great distance form the employer’s facility, this will involve the added expense of either paying for the employee’s travel costs, or paying for the immigration consultant.
Except in California, employers can authorize anyone as a third-party to review and sign the form on behalf of the employer. Employers, however, often struggle with identifying who can serve as an I-9 representative. Many employers prefer to designate representatives trained in I-9 compliance practice and procedures because this can reduce risk and lessen the burden on the employer for reviewing and correcting I-9s after the fact. Using a third-party that is not trained in I-9 compliance can be risky because liability for incorrectly administering the I-9 is high, with large potential fines.
Many employer organizations have requested ICE to reconsider and extend the remote review process. Unless ICE changes its policy, employers will need to comply with the previous in-person verification requirement effective August 30.
John Falcone and Luke Malloy handle employment law matters at PLDR Law. Feel free to contact us if you have questions about this matter.
- Written by: John E. Falcone
On May 30, the National Labor Relations Board (NLRB) General Counsel issued a memorandum announcing that many noncompete agreements violate the National Labor Relations Act. This memo comes in the wake of the Federal Trade Commission’s (FTC) proposed new rule that would ban noncompete agreements nationwide.
The NLRB’s opinion is based on the conclusion that noncompete agreements can chill employees from exercising their rights under the National Labor Relations Act, which protects employees’ rights to take collective action to improve their working conditions. The FTC’s rationale is that noncompetes are an unfair method of competition, and thus violate the Federal Trade Commission Act.
Unlike the FTC’s proposed rule which would apply to virtually all workers, the NLRB’s opinion would not apply to managerial, supervisory staff, because the National Labor Relations Act does not apply to those higher-level employees. It is the higher-level employees who are the most likely to have noncompetes.
Keep in mind that Virginia already has restrictions on noncompete agreements for “low wage” employees. See Va. Code § 40.1-28.7:8. Covenants not to compete prohibited as to low-wage employees; civil penalty (virginia.gov). The Virginia law, however, did not take effect until July 1, 2020 and is not retroactive, unlike the FTC’s proposal.
We are waiting for the final version of the FTC’s proposed rule, and anticipate that the rule will be challenged in court. Some experts believe that the FTC has exceeded its authority in proposing the new rule. Court challenges to the NLRB’s new opinion are also likely. It will be interesting to see whether courts will agree with the NLRB’s interpretation of the law.
John Falcone and Luke Malloy handle employment law matters at PLDR Law. Feel free to contact us if you have questions about this matter.