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Ronald L. Fano

Partner

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T 303.839.3820
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rfano@spencerfane.com

DOL Publishes Proposal Interpreting Joint Employer Status

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.

DOL Publishes Proposals Interpreting “Regular Rate of Pay” in Overtime Regulations

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.

New FMLA and FLSA Opinion Letters Issued by DOL on Key Topics

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”).

DOL Publishes Proposal on New White-Collar Exemption Regulations

On March 7, 2019, the Department of Labor (“DOL”) published a long-awaited proposal for revising the regulations relating to the white-collar exemptions from overtime and minimum wage under the Fair Labor Standards Act (“FLSA”). In the Notice of Proposed Rulemaking (“NPRM”), DOL has proposed increasing the threshold salary amount for certain white-collar exemptions from its current $455 per week (or $23,660 per year) to $679 per week, or ($35,308 per year). In 2015, DOL had proposed increasing this threshold to over $47,000 per year ($913 per week). As we reported here, that proposal was blocked by a federal court in Texas in late 2016.

The Masterpiece Cakeshop Decision – Bakery Owner Wins, But on Narrow Grounds

On June 4, 2018, the Supreme Court of the United States issued its highly anticipated decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Case No. 16-111. In its opinion, found here, the Court vacated an administrative order entered by the Colorado Civil Rights Commission (“CCRC” or the “Commission”) against the bakery, which had refused to sell custom wedding cakes to same-sex couples on the grounds that doing so would violate the owner’s sincerely held religious beliefs. The Court made it clear that judges and administrative officials violate a litigant’s constitutional rights if they engage in conduct that displays hostility toward a particular set of religious beliefs. But the majority opinion left many questions unanswered. It remains to be seen if a business owner may refuse to do business with a prospective customer because of the customer’s sexual orientation when the refusal is based on a sincerely held religious belief.

Employee Class Action Waivers Held Enforceable

On May 21st, the United States Supreme Court held that the National Labor Relations Act (“NLRA”) does not prohibit employers from requiring workers to agree, as a term and condition of their employment, that they waive the right to bring class or collective actions, and will individually arbitrate employment-related legal claims.  Epic Sys. Corp. v. Lewis, U.S., Case No. 16-285 (Slip Opinion, May 21, 2018). This decision resolves a high profile conflict, in which the National Labor Relations Board and some federal courts had found that the NLRA prohibits enforcement of arbitration agreements containing class action waivers. The Court’s decision makes clear that the NLRA does not prevent the enforcement of an arbitration agreement that is otherwise valid under the Federal Arbitration Act (“FAA”). 

New Age Harassment: When Will the Next Shoe Drop? What to Do When You Learn One of YOUR Employees Might Be on the Naughty List.

Who will be next? After Matt Lauer, Garrison Keiller, and Russell Simmons each faced assertions of inappropriate conduct in the last week, the “who’s next” question predominates pop culture and the daily news cycle. In the wake of numerous sexual harassment accusations unfolding across Hollywood and corporate America, sexual harassment has become one of the hottest topics in today’s news. While claims of sexual harassment in the workplace are nothing new, the almost daily media coverage of so many high-profile claims will likely result in an increase in reports of sexual harassment allegations for many employers in the immediate future.

Right to Work Enacted in Missouri

Governor Greitens signed the Missouri Right to Work Bill on February 6, 2017. See Missouri Senate Bill 19. It becomes effective on August 28, 2017 and applies to any new collective bargaining agreements or renewals, extensions, amendments, or modifications after the effective date.

Court Halts New Overtime Rules on Nationwide Basis

Just as employers across the nation were bracing for the new rules governing white-collar exemptions to the overtime laws (“the New OT Rules”), a federal district court in Texas blocked the Department of Labor from implementing them. The New OT Rules—which drastically increased the minimum salary threshold for employees classified as exempt under the executive, administrative and professional employee exemptions—were set to take effect on December 1, 2016.

DOL’s Persuader Rule Permanently Enjoined on a Nation-wide Basis by Texas District Court – May Be Sign of Things to Come for Other DOL Regulations

On November 16, 2016, the United States District Court for the Northern District of Texas (Lubbock Division) entered an order holding that the Department of Labor’s Persuader Advice Exemption Rule is unlawful and should be set aside pursuant to 5 U.S.C. § 706(2). The Persuader Rule regulations are now subject to a permanent nation-wide injunction and the DOL will be prohibited from enforcing the regulations unless and until the district court’s order is revised or reversed on appeal.

Getting Ready for the Presidential Election – Voting Leave Law

With the Presidential Election just days away, employers need to be ready to accommodate workers who may want or need to leave during the workday to cast their votes. The purpose of this blog post is to help employers prepare for the anticipated surge of political activity by providing a summary of the voting leave laws for the states of Arkansas, Colorado, Illinois, Iowa, Kansas, Missouri, Oklahoma and Texas.

EEOC Seeks Additional Pay Information from Large Employers

In a nutshell – Last week, the EEOC unveiled its proposal to seek increased amounts of data from large employers in a stated effort to “combat the persistent gender gap in employee compensation.” Practically, the proposal revises the EEO-1 form. The EEOC’s proposed changes to the EEO-1 form will require all employers with 100 or more employees to submit the new EEO-1 form and provide substantial information regarding pay ranges and hours worked as well as salary data by race, gender and ethnicity.

Use-It-Or-Lose-It Vacation Policies in Colorado – The Colorado Department of Labor’s New Stance

Historically in Colorado, employers could safely implement use-it-or-lose-it vacation policies without fear of consequences from the Colorado Department of Labor (“CDOL”). Those days are officially over. Effective January 1, 2015, the CDOL assumed new enforcement authority with respect to claim for nonpayment of wages or compensation. Pursuant to that authority, the CDOL issued limited guidance this week with respect to use-it-or-lose-it vacation policies. That guidance indicates that employers can no longer implement use-it-or-lose-it vacation policies without consequences.

Fano Authors ‘Tips to Avoid Discrimination Lawsuits’ in Bloomberg BNA

Spencer Fane Partner Ron Fano recently authored an article in the June 12th edition of Bloomberg BNA’s Corporate Law & Accountability Report this past week, offering advice on the prevention of discrimination lawsuits, which can be both costly and damaging to a company’s reputation.

Clarity for Colorado Employers: Colorado Supreme Court Decides that Marijuana Use is Not a “Lawful” Off-Duty Activity in Colorado

The Colorado Supreme Court has now heard and decided a case (Coats v. Dish Network) critical to Colorado employers in terms of whether the legalization of marijuana in Colorado mandates an exception to zero tolerance drug policies. The Court decided in favor of the employer, ruling that marijuana use, at least for medicinal purposes, is not a lawful off-duty activity for purposes of receiving protection under Colorado’s lawful activities statute even though state law has legalized the use of marijuana for medicinal and recreational purposes. As a result, employers may continue to maintain and enforce zero tolerance policies that include marijuana within their scope.