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Agency Developments at the Department of Labor: The Fair Labor Standards Act

In the summer of 2019, the Department of Labor (“DOL”) made headlines when Secretary of Labor Alexander Acosta resigned. President Trump then nominated Eugene Scalia for the position, and Mr. Scalia was sworn in as Secretary of Labor on September 30. In recent months, the Senate also confirmed Cheryl Stanton as Administrator of the Wage and Hour Division.

OSHA Announces Change to Process of Prioritizing and Evaluating Inspections

On October 1, 2019, OSHA implemented a new OSHA Weighting System to guide its prioritization and evaluation of workplace safety inspections for fiscal year 2020. Under OSHA’s outgoing enforcement weighting system, initiated in fiscal year 2015, OSHA heavily based its prioritization and evaluation of inspections on the time taken to complete an inspection.

IRS Finalizes Hardship Distribution Rules

The IRS has issued final regulations modifying and clarifying the rules for in-service hardship distributions from 401(k) and 403(b) plans.  The final regulations are substantially similar to the proposed regulations issued in November of 2018, but they contain a few changes of which plan sponsors should be aware.

DOL Releases Final New Overtime Rules – Effective January 1, 2020

On September 24, 2019, the Department of Labor (“DOL”) issued the final rule (the “New OT Rules”) that updates and revises the regulations which govern the exemptions from minimum wage and overtime pay requirements under the Fair Labor Standards Act (“FLSA”). Employers should carefully review the New OT Rules and the explanatory commentary. See Final Rule Announcement. The New OT Rules are set to become effective on January 1, 2020.

Considering a “Split-Day Plan” to Minimize Overtime Liability? Proceed With Caution.

A recent Minnesota Supreme Court opinion demonstrates why employers should proceed with caution if they are considering whether to implement “split-day plans” or any other complicated pay practices that are seemingly authorized by the federal wage and hour laws. See In re Minnesota Living Assistance, Inc. d/b/a Baywood Home Care, Case No. A17-1821, 2019 WL 4456081 (Minn. 2019). Specifically, the Minnesota Supreme Court concluded that the employer was liable for $1.1 million dollars in back pay and liquidated damages because it violated the Minnesota Fair Labor Standards Act (“MFLSA”) by failing to pay employees overtime following implementation of a split-day plan.

Implementing Individual Arbitration Agreements Does Not Violate NLRA, Even If Done After Collective Action is Filed

As previously discussed on Spencer Fane Human Resource Solutions, an employer can lawfully require its employees to sign individual arbitration agreements with class action waivers as a term and condition of their employment. See Employee Class Action Waivers Held Enforceable (May 22, 2018).  However, even if individual arbitration agreements with class action waivers are not, as a general rule, unlawful under the National Labor Relations Act (“NLRA”), can an employer require its employees to sign such an agreement after a collective or class action lawsuit has already been filed against it? The National Labor Relations Board (the “Board”) recently said yes in Cordúa Restaurants, Inc., Case 16-CA-160901 (August 14, 2019).

CCPA, It’s Not Just Alphabet Soup

Our previous article “Does the CCPA Apply to My Company?”[i] outlined some questions to help determine if your company is included in the definition of business for the CCPA. Here, we give a brief overview of the law and discuss both its potential effects and enforcement.

An Uncashed Check is Taxable

The IRS issued Revenue Ruling 2019-19 to describe the tax and reporting treatment of uncashed distribution checks from tax-qualified retirement plans.  The ruling describes a situation in which a plan is required to make a distribution and the participant receives the distribution check, but does not cash it.  The ruling makes clear that, regardless of why the participant does not cash the check (or even if the participant cashes the check in a later year), the distribution is subject to applicable tax withholding and reporting in the year in which the distribution is made.  In addition, the participant must include the distribution in his or her gross income for that same year.

EPA Proposes Restrictions to State Water Quality Certifications

A proposed rule issued August 9th appears to move in a different direction from the approach to cooperative federalism promoted by recent EPA initiatives.  EPA’s new Water Quality Certification rule seeks to restrict the authority of states and authorized tribal agencies – at least with respect to certain actions under the Clean Water Act. This is a rule to watch for utilities and businesses seeking licenses from the Federal Energy Regulatory Commission, and for developers who need Clean Water Act Section 404 permits from the Army Corps of Engineers.

Colorado Mining Operations Face Temporary Cessation Roadblock

Case of First Impression Overturns Mined Land Reclamation Board Ruling

On July 25, 2019, the Colorado Court of Appeals reversed a ruling of the Colorado Mined Land Reclamation Board (“MLRB” or “agency”) which had authorized a second period of temporary cessation for a uranium mine.  The Court in Information Network for Responsible Mining, Earthworks, and Sheep Mountain Alliance v. Colorado Mined Land Reclamation Board was asked to determine if the agency properly authorized a “second period of temporary cessation” which would allow the mining permit issued by the MLRB to remain in effect.

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