On June 3, 2019, the Supreme Court held that filing a charge of discrimination is not a “jurisdictional” prerequisite to filing suit under Title VII of the Civil Rights Act of 1964. See Fort Bend County v. Davis, Slip Op. No. 18-525 (June 3, 2019). Although this case deals with what sounds like an obscure legal issue, it is of great practical importance to employers. In short, it means that employers defending against claims of discrimination under Title VII must diligently assert all procedural defenses they may have as early as possible. Otherwise, a failure to assert a defense may allow the plaintiff-employee’s claim to go forward, even if the employee has not technically complied with Title VII’s mandatory charge-filing procedures.
On April 1, 2019, the Department of Labor (“DOL”) published its third proposal in 30 days to revise regulations interpreting the Fair Labor Standards Act (“FLSA”). The April 1 proposed rule would revise and clarify the test for when multiple employers (known as “joint employment”) can be held responsible for wages under the FLSA. The notice and full text of the rule can be found here.
Under the Fair Labor Standards Act (FLSA), employers must generally pay non-exempt employees overtime at a rate of one and one half times the “regular rate” of pay when they work more than forty hours in a workweek. Overtime cannot be properly calculated unless the employer knows what to include in the regular rate. As benefits, bonuses, reimbursements and other elements of compensation have evolved, greater ambiguity has developed in determining what is included in and excluded from the regular rate. On March 29, 2019, the Department of Labor (“DOL”) published a proposal (found here) to clarify and update several regulations that interpret the regular rate of pay requirement.
On March 14, 2019, the U.S. Department of Labor/Wage and Hour Division continued its practice under the Trump Administration of issuing Opinion letters by releasing three new ones – its first Opinion letters of 2019. One of the newly-released Opinion letters relates to the Family and Medical Leave Act (“FMLA”), and two of them involve the Fair Labor Standards Act (“FLSA”).