On July 29, the Department of Labor (DOL) announced a final rule rescinding the Trump Administration’s Joint Employer rule. This move clearly reestablishes the DOL’s quest to broaden the scope of potential liability for businesses under the Fair Labor Standards Act (FLSA) for the wrongs of their subcontractors, franchisees and other entities. This move is consistent with the Biden Administration’s trend to reinstate the measures taken under the FLSA by the Obama Administration, including those taken to broaden the scope of who could be deemed joint employers under the FLSA. The rule promulgated by the Trump Administration had replaced an Administrator’s Guidance issued by the Wage and Hour Administrator of the Obama Administration, David Weil. Consistent with this trend, David Weil has been nominated to serve the current administration in the same role he held during the Obama Administration.

Continue Reading DOL Rescinds Trump-Era Joint Employer Rule: Employers Beware!

The Problem

The Biden DOL is primed to aggressively pursue errors made with respect to the payment of overtime compensation as required by the Fair Labor Standards Act (FLSA). While doing so, it’s also primed to assert claims for liquidated damages whenever it finds errors, even for errors that were inadvertent, and even for those that may seem nominal. These liquidated damages are equal to the amount of unpaid overtime its investigators deem due.

Continue Reading Lessening Liability for Unpaid Overtime Pay Claims: The Best Defense is a Good Offense

In today’s Insights & Updates chat, Robert Boonin, from Dykema’s Labor & Employment Group, and James Brandell, a Government Policy Advisor from Dykema’s Washington, D.C., office, discuss what is on the Biden Administration’s agenda in terms of redirecting wage and hour law.

Continue Reading Insights & Updates — Minimum Wage and Overtime

In this episode of Insights & Updates, Robert Boonin, from Dykema’s Labor & Employment Group, and James Brandell, a Government Policy Advisor in Dykema’s Washington, D.C., office, discuss the evolving legal standards for determining who are “independent contractors” versus “employees” in the eyes of the courts, the Department of Labor (DOL), and the National Labor Relations Board (NLRB). This is critical due to the Biden Administration’s apparent view being that many independent contractors are really misclassified employees, and such misclassifications expose employers to substantial liability.

Continue Reading Insights & Updates – Independent Contractor Changes

On July 9, 2021, President Biden issued the Executive Order on Promoting Competition in the American Economy (the “Order”). This sweeping Order affirms that it is the policy of the President’s Administration to enforce the antitrust laws to combat concentration and abuses of economic power in a number of markets, including: labor, agriculture, healthcare (including i.e., hospitals, insurance, hearing aids and prescription drugs), repair, real estate brokerage, alcoholic beverage distribution, cable, internet, air travel, financial services, rail transport, and ocean shipping. This Order, among other things, mandates and/or encourages cabinet members and agency officials, including Federal Trade Commission (FTC) officials, to conduct studies, issue reports, and consider rulemaking to ramp up enforcement of antitrust and related laws in these sectors of the American economy. The Order also reaffirms the authority of the Department of Justice (DOJ) and FTC to challenge previously consummated mergers in all industries, including those that received clearance under the Hart-Scott-Rodino Act, and to review, and likely strengthen, the Horizontal and Vertical Merger Guidelines.

Continue Reading All Employers May Be Impacted by President Biden’s Executive Order on Promoting Competition in the American Economy

Today’s Insights & Updates chat highlights critical issues both unionized and non-unionized employers need to understand. In this episode, Robert Boonin, from Dykema’s Labor & Employment group, along with James Brandell, who is a Government Policy Advisor in Dykema’s Washington, D.C., office, discuss all things related to how the National Labor Relations Board (NLRB) is priming itself to dramatically change current labor law principles, as well as how the Protecting the Rights to Organize Act (PRO Act) would redesign the longstanding rules and processes under the National Labor Relations Act (NLRA) to make it easier for unions to organize employees.

Continue Reading Insights & Updates—National Labor Relations Board & PRO Act Legislation

In today’s Five Minute Matters chat, Robert Boonin, from Dykema’s Labor & Employment group, discusses paid leave with James Brandell, who is a Government Policy Advisor in Dykema’s Washington, D.C., office. Rob and Jim address the following aspects of paid family leave:

Continue Reading Five Minute Matters – Paid Leave

The landscape regarding non-competition and non-solicitation agreements in Illinois is expected to change dramatically due to a bill recently passed by the Illinois Legislature and which is expected to be signed by Governor Pritzker.  The amendments to the Illinois Freedom to Work Act (“IFWA”) apply to Non-Competition and Non-Solicitation agreements signed on or after January 1, 2022, but would not apply retroactively.

Continue Reading Illinois Freedom to Work Act Amendments Aim to Reshape Employee Non-Compete and Non-Solicitation Agreements

The California state rules, which became effective June 15, 2021 (California’s “reopening”), eliminate capacity restrictions and social distancing and also permit fully vaccinated individuals to stop wearing masks in most situations.

Continue Reading California Return to Work: Finally, New Revisions to the COVID-19 Prevention Emergency Temporary Standards

As most Texas employers are aware, prohibitions on discrimination (which includes harassment) and retaliation are imposed by the Texas Labor Code only on those employers with 15 or more employees. These prohibitions mirror, for the most part, similar prohibitions imposed by various federal laws. As the Texas legislative session drew to a close, however, two significant but curious amendments to the Labor Code were passed and subsequently signed into law by Governor Abbott, which amendments go into effect on September 1, 2021.

Continue Reading Texas Law Expands Liability for Sexual Harassment