On September 22, 2020, the U.S. Department of Labor (DOL) released its first-ever proposed rule outlining a test for when a worker is an employee or independent contractor under the Fair Labor Standards Act (FLSA).

In its proposed rule, the DOL has created a new framework for the well-established “economic reality” independent contractor test. This test is used to determine whether the individual is truly in business for themselves (an independent contractor) or is economically dependent on their employer for work (an employee).
Continue Reading To Be or Not to Be (An Independent Contractor): DOL Seeks to Clarify Independent Contractor Test in Landmark Proposed Rule

On August 24th, the Department of Labor issued a Field Assistance Bulletin (“FAB”), available here, regarding “Employers’ obligation to exercise reasonable diligence in tracking teleworking employees’ hours of work.” While FABs are not legally binding authority, they provide guidance on the WHD’s enforcement positions and policies. This recent FAB is useful in suggesting best practices for those charged with ensuring that employees are paid for all hours worked—a task that has been made much more difficult by the current remote work environment.
Continue Reading Working Hard for The Money: Department of Labor Issues Guidance on Tracking and Paying for Remote Work Hours

Guidance Focuses on Concurrent Leave Issues, Hours to be Paid During Leaves, and Regular Rates of Pay Applicable

Now that covered employers are providing paid leaves under the Families First Coronavirus Act (the “FFCRA”), more questions about the FFCRA’s nuances are surfacing. In an effort to further guide employers who are trying to navigate the new law, the Department of Labor has added to its growing list of FAQs about the FFCRA, which includes clarification of some of its earlier answers. The substantive changes are contained in FAQs 80 through 88, in which the DOL focuses on the calculation of available leave time and regular rates of pay to be used for FFCRA paid leaves. The following will highlight these new guidance topics.
Continue Reading DOL Issues More FFCRA Compliance Guidance on Paid Leaves

The United States Department of Justice (DOJ) and the Federal Trade Commission (FTC) have made it clear that they will act to protect employees on the front lines of the battle against COVID-19. On the one hand, as we explained in a prior client alert, they previously announced pre-clearance procedures and other guidelines intended to make it easier for companies to collaborate in legitimate, pro-competitive ways. In their latest announcement, the DOJ and FTC warned that they would not hesitate to protect all employees from companies that use COVID-19 as an excuse to collude in fixing wages, benefits, hours worked, or other aspects of employment. Given the government’s prior focus on antitrust issues in the labor market, including their prior indication that they will pursue criminal remedies where appropriate, employers must be more careful than ever to ensure that they do not run afoul of antitrust laws in this area.
Continue Reading Employers Beware: COVID-19 Will Not Excuse Wage or Labor Fixing Agreements

On April 1, the DOL provided employers with further clarity on the FFCRA by publishing temporary regulations. These regulations will be effective from April 1, 2020, until December 31, 2020—the same effective period of the FFCRA. Also relevant to employers, the IRS issued guidance regarding the FFCRA tax credit. As with our other alerts on the FFCRA, the following highlights key aspects of the new regulations:
Continue Reading In the Nick of Time: Department of Labor Issues Temporary Regulations Interpreting the Families First Coronavirus Response Act