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The Modern Workplace

Posts in Wage & Hour.

The new federal administration continues to put its stamp on the development and enforcement of wage and hour laws under the Fair Labor Standards Act (FLSA). Recently, the Department of Labor (DOL) issued a new Field Assistance Bulletin (Bulletin 2021), revoking a Trump administration policy relating to the practice of seeking liquidated damages in pre-litigation settlement discussions.

Employers who violate the FLSA provisions relating to minimum wage, overtime compensation, and protections for tipped employees, are liable for the unpaid wages or tips as well as an equal ...

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As we predicted in a blog post earlier this year, the Biden administration has placed a 60-day hold on the U.S. Department of Labors (DOL) final rule on determining when a worker is an employee or independent contractor under the Fair Labor Standards Act (FLSA) which was expected to take effect March 8, 2021. The Biden Administration issued a memorandum to various executive agencies, including the DOL, asking that they: (1) not propose or issue any rules until a department or agency head appointed or designated by the Biden Administration reviews and approves the rule; (2) withdraw any ...
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On January 7, 2021, the U.S. Department of Labor (DOL) published its final rule (Final Rule) setting new standards for determining when a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). The Final Rule takes effect sixty days from its publication in the Federal Register and is, therefore, scheduled to take effect on March 8, 2021. The DOL notes that the Final Rule reaffirms the economic reality test; however, the new test changes the analysis to be used when applying the test.

New Test
The Final Rule implements a five-factor economic reality ...
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Posted in Wage & Hour
A basic tenant of the Fair Labor Standards Act (FLSA) is that employers are required to pay their non-exempt employees for all hours worked. While this seems simple enough, sometimes employees do not record all of their work time. Under the FLSA, employers must pay for time worked if they know or have reason to believe that the work was performed. In other words, employers have a duty to make sure that work is not performed when they do not want it to be performed. Recently, in light of the pandemic, the U.S. Department of Labor issued a Field Assistance Bulletin (FAB) highlighting the ...
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On May 18, 2020, the United States Department of Labor (DOL) implemented a final rule arguably giving employers more flexibility in the retail and service industries to exempt certain employees from overtime pay requirements. 

Generally, the Fair Labor Standards Act (FLSA) requires that employers pay employees at an overtime rate for time worked in excess of 40 hours in a workweek, unless the employees are exempt under Sections 7 or 13 of the statute. One of these exemptions applies to employees who work for a retail or service establishment if: (i) the employees regular rate of pay ...

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We know that we are all feeling a bit overwhelmed by the fast-pace of information being circulated about employment related COVID-19 issues and laws. In an effort to help you organize and retain COVID-19 information in a concise way, you will find links below to each of the Employment Alerts, Blog Posts, and Webinars by Lathrop GPM on COVID-19 employment issues. We will continue to keep you up to date with Alerts and blog posts as the various federal and state agencies issues new laws, regulations, and answers to the questions posed by employers. Please check here on the Modern Workplace ...
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Posted in Wage & Hour

Last week, the Minnesota Supreme Court issued a ruling that upheld the City of Minneapoliss $15 per hour minimum wage ordinance. Graco, Inc. sued the City over the ordinance back in 2017, arguing that the state of Minnesotas lower minimum wage law preempted the Minneapolis ordinance and seeking a permanent injunction against the ordinances enforcement. In a unanimous decision issued last Wednesday, the Minnesota Supreme Court held that the state legislature did not intend to occupy the field of minimum-wage rates. The Court also held that the City ordinance was valid, because it ...
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On January 12, 2020, the U.S. Department of Labor (DOL) published its final rule regarding joint-employer status under the Fair Labor Standards Act (FLSA), the federal wage and hour law. This final rule provides a more employer-friendly joint employer liability standard than previous guidance issued by the DOL under the Obama administration.


In recent years, many employment lawsuits have been brought against entities that do not technically employ the workers bringing the employment-related claims, but may exert some level of control or influence over their employment (such as ...
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Posted in Wage & Hour

Employers should be aware that the start of the New Year ushered in changes to federal, state and local government wage and hour laws. Some of those changes include the following:

  • The minimum salary for executive, administrative and professional employees who are exempt from the overtime requirements of the federal Fair Labor Standards Act (FLSA) has increased from $455 to $684 per week ($35,568 per year). 
  • The annual compensation now required to meet the exemption under the FLSA for highly compensated employees has been raised to $107,432.
  • Several states increased the state ...
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As Thanksgiving and the holiday season approaches, companies often look for ways to contribute to charitable causes within their communities. One way they might accomplish this worthwhile endeavor is by creating and encouraging their employees to participate in formal volunteer opportunities. This is a great way for companies to give back and for individual employees to take a break from the rigors of everyday business life and focus on helping others. Whether employees should be compensated for participating in these volunteer activities, however, is not always clear, and if ...
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Posted in Wage & Hour
Employers should be aware that an amendment to the Federal Fair Labor Standards Act (FLSA) will increase the salary level threshold for the white-collar employee exemption from overtime pay commencing January 1, 2020. The white-collar exemption generally applies to executive, administrative, and professional job positions, as defined under the FLSA. A final rule was issued by the federal Department of Labor (DOL) on September 24, 2019, which increases the white-collar exemption salary level from the current level of $455.00 per week to $684.00 per week (which computes to ...
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A note of caution to Minnesota-based employers federal enforcement of the Fair Labor Standards Act (FLSA) should not be your only concern when drafting employee compensation plans; the Minnesota Department of Labor and Industry is actively auditing employers in search of those avoiding their overtime requirements under the Minnesota Fair Labor Standards Act (MFLSA). This past Wednesday, the Minnesota Supreme Court upheld a million dollar compliance order issued by the Department against an employer utilizing split-day compensation plans. The court heldthat an employer must ...
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Posted in Wage & Hour

As part of its ongoing efforts to assist employers in understanding their responsibilities under federal employment law, the Wage and Hour Division of the U.S. Department of Labor recently added publically available presentations to its website.  The presentationscover topics under the Fair Labor Standards Act, such as wage and hour requirements, child labor requirements, and an employers responsibilities to provide rest breaks and proper facilities for nursing mothers.


During the past year the Department of Labor has added other content to its online materials including the ...
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Posted in Leave, Wage & Hour

The Minneapolis City Council adopted a new Wage Theft ordinance on August 8 that adds requirements on top of those in the new Minnesota Wage Theft law that became effective July 1. The city ordinance will be effective January 1, 2020, and will require employers to satisfy the citys wage theft requirements for all employees who work at least 80 hours in a year within the geographical boundaries of Minneapolis, regardless of the location of the employer. Violations of the ordinance subject an employer to a variety of damages, costs, and penalties.

New Information Requirements for ...
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As we discussed in prior posts (MinnesotasNew Wage Theft Law: Are You Prepared? and Minneapolis Wants a Piece of the Wage Theft Pie), Minnesotas 2019 legislature passed expansive new wage theft protections for employees. Most of the new laws provisions became effective July 1. The new criminal penalties for intentional wage theft are effective August 1. While the new law contains numerous significant changes to wage-related notice and recordkeeping requirements, payment of commissions and bonuses is also affected and deserves an employers close attention to achieve compliance ...
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Posted in Wage & Hour

On the heels of the new Minnesota state wage theft law, which went into effect on July 1st, the Minneapolis City Council has proposed a city wage theft ordinance. The proposed Minneapolis ordinance mirrors the new state law in many respects, but includes some additional requirements. The Citys ordinance would require employers to put all pay agreements in writing and provide regular written or electronic earnings statements to workers. The proposal also includes a streamlined resolution process for wage disputes that does not require an employee to have an attorney and creates a ...
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Posted in Wage & Hour

Governor Tim Walz recently signed into law expansive new wage theft protections for employees that will go into effect on July 1. The new law significantly changes a number of employer wage-related requirements. It also includes increased civil enforcement penalties, as well as new criminal penalties for intentional wage theft. The major requirements of the law are summarized below:


Earning Statements


The law requires that employers include additional information in the earning statements provided to employees at the end of each pay period. Employers must now include 1) the rate ...
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Although the recently completed 2019 regular session of the Minnesota Legislature included a significant number of bills on various employment-related topics, in the end, the Legislature passed very few such bills. The future fates of those bills are quite unclear at this time. As of the close of the regular legislative session, numerous employment-related bills were still active, in either one or both legislative bodies, touching on a variety of significant topics, including:

  • Paid leave (generally).
  • Medical leave.
  • Family leave.
  • Work shift scheduling requirements.
  • Wage theft ...
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Two recent developments have occurred in the seemingly constant struggle regarding the classification of independent contractors versus employees. The developments are examples of two very divergent paths that are being taken by various governmental entities and administrations. Some are tightening the requirements for independent contractor status. Others, however, are creating a more business-friendly loosened standard.


On Monday, April 29, 2019, the Wage and Hour Division of the United States Department of Labor (DOL) issued an opinion letter (Opinion Letter ...
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Posted in Wage & Hour
On March 7, 2019, the U.S. Department of Labor issued its new proposed rule on the white-collar exemptions under the federal Fair Labor Standards Act. The proposed rule (New Rule) sets new proposed parameters for the white-collar exemption salary requirements and would replace the final rule issued in 2016, which was blocked after a Texas court issued a permanent injunction. The New Rule would set the minimum white-collar salary at $679 per week ($35,308 annually) and is expected to become effective in January of 2020. For more information about the proposed New Rule, read our client ...
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Posted in Wage & Hour

If you have been following the attempts to change the exempt employee salary rule under the Fair Labor Standards Act (FLSA), you know that it has been a long, involved story that includes a series of court decisions and moves that have changed the trajectory of the story. In other words: a saga. We now have word that the saga is continuing.


The final ruleadopted by the U.S. Department of Labor (DOL) in 2016 would have increased the minimum salary level required for employees to qualify for the executive, administrative, and professional exemptions under the FLSA from $455 per week ($23,660 ...
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There is never a shortage of changes in employment law.  By now, Minnesota employers should be aware that Minnesotas minimum-wage rates changed on January 1, 2019.  For 2019, the states minimum wage is $9.86 an hour for large employers and $8.04 an hour for smaller employers.  As you may recall, large employers are those with annual gross revenues of $500,000 or more. 

Remember, also, that your Minnesota posting needs to be updated. The revised poster pack can be found online at 
www.dli.mn.gov/sites/default/files/pdf/mn_poster_pack.pdfand printed. For federal government ...
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Posted in Wage & Hour

To make sure that the most wonderful time of the year stays that way, here is a quick refresher on how employers can sidestep certain employment law minefields that are common to the holiday season.


Religious Issues


December is home to Hanukah, Christmas, Kwanzaa, and Winter Solstice celebrations, among others. For this reason, a host of religious-related obligations can arise for employers under federal and state laws that prohibit religious discrimination and require reasonable religious accommodations.


Requests for Time Off


December is a popular time for religious ...
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Posted in Wage & Hour

After significant debate and discussion over a period of several months, the St. Paul City Council approved a new wage ordinance this week that will require a $15 minimum wage within the city of St. Paul for covered nonexempt workers. The City Council voted unanimously in favor of the wage change and St. Paul Mayor Melvin Carter signed it into law soon after.  


Covered Employers and Phase-In Requirements


Similar to the Minneapolis $15 minimum wage ordinance, the St. Paul ordinance will phase in the $15 minimum wage increase over time, and the wage requirement will apply to all time ...
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Posted in Leave, Wage & Hour

I have been watching the weather carefully, because my family will be doing some tree trimming this weekend. As you can imagine, I was a bit concerned when I heard about potential snowfall. The threat of snow reminded me that inclement weather often results in questions from employers about how to address the related wage and hour issues that arise when they shut down their business for weather or employees are unable to get to work. In preparation for the upcoming winter snowstorm season, I offer the following guidelines:
  • What to Do When You Shut Down Your Business Due to Inclement ...
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The U.S. Department of Labor (DOL) has been busy. It recently issuedsix new opinion letters on various compliance issues. As described below, four of the letters involve the federal Fair Labor Standards Act (FLSA) and two of the letters involve the federal Family and Medical Leave Act (FMLA). While DOL opinion letters are issued in response to a particular employers submission of a question to the DOL, employers that rely on a DOL opinion letter in setting their practices have a legal safe harbor defense if faced with, as applicable, a FLSA or FMLA legal challenge. That being said, courts ...
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In the #MeToo Era, employers who are focused on proactive sexual harassment prevention and response measures should also be mindful of other aspects of gender equity, such as pay equity. The Wall Street Journal recently reportedthat the U.S. Equal Employment Opportunity Commission (EEOC) is investigating Uber for potential gender discrimination in hiring and in its pay practices. The investigation is in line with the EEOCs 2017-2021 Strategic Enforcement Plan, which included a focus on equal pay protections as a strategic priority.


Uber is just one of a number of companies facing ...
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Posted in Wage & Hour

Employers that have operations or contractors working in California, beware. On April 30, 2018, the California Supreme Court issued an opinion establishing a new pro-employee standard in worker misclassification cases arising under California state wage and hour law. The opinion overturned three decades of precedent and will likely lead to more rulings that independent contractors have been misclassified and are actually employees.


California courts had long applied what is known as the Borello test for determining whether an individual is a contractor or employee under ...
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Tip pooling in the hospitality industry has been affected by a recent act of Congress and a Minnesota class action that have garnered significant attention. The Congressional act will have limited impact on Minnesota employers because they continue to be subject to substantial restrictions on tip pooling under state law. Tip pooling is the practice of sharing tips between front-of-house staff and back-of-house staff. On March 23, 2018, Congress passed a budget reconciliation bill that included a rider amending the federal Fair Labor Standards Act (FLSA) and related tip pooling ...
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Defending a wage and hour class or collective action is one of the most difficult employment law challenges facing companies today. Penalties are steep, attorneys fees are significant, and liability can be hard to avoid. Employers should be mindful, however, that they may also face liability under the National Labor Relations Act (NLRA) if they do not properly respond to collective employee concerns raised in wage and hour lawsuits. A recent case, Village Red Restaurant Corp. d/b/a Waverly Restaurant, 366 NLRB No. 42 (2018), exemplifies the additional liability that employers may ...
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On March 6, 2018, the U.S. Department of Labor (DOL) announced a new pilot program, the Payroll Audit Independent Determination (PAID) program. The PAID program encourages employers to self-report inadvertent overtime and minimum wage violations under the Fair Labor Standards Act (FLSA). According to the DOL, the program's primary objectives are to resolve such claims expeditiously and without litigation, to improve employers' compliance with overtime and minimum wage obligations, and to ensure that more employees receive the back wages they are owedfaster.


The estimated ...
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With many laws protecting workers classified as employees and not offering protection for those classified as independent contractors, a workers classification has broad implications for the worker and for the company using the workers services. In the rise of the sharing economy, companies like Uber Technologies, Inc. and Grubhub, Inc. have classified their drivers as independent contractors; and workers have turned to the courts to challenge that classification. 


In the first federal court decision on this issue, a federal magistrate judge in California ruled on February 8 ...
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Last week, in Boswell v. Panera Bread Co., the Eighth Circuit Court of Appeals held that Panera Bread illegally imposed caps on amounts paid to managers under its bonus program. In order to recruit and retain managers, Panera had created a program under which managers were eligible to receive a one-time bonus to be paid five years after the managers signed at-will employment agreements containing the bonus program. In order to receive the bonus, the manager had to be employed as a manager at the time of payment.

However, after a downturn in profits, Panera decided to place a $100,000 cap on ...
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The saga of a 2016 Obama administration federal rule, issued under the Fair Labor Standards Act (FLSA), has taken a somewhat surprising turn. The 2016 rule, which was scheduled to be effective December 1, 2016, would have greatly increased the weekly salary threshold for white collar overtime pay exemptions. The federal Department of Labor (DOL) recently filed an appeal in a Texas federal court lawsuit, challenging an August decision by the district court judge that effectively invalidated the Obama administration rule.
We have previously posted several times about the 2016 ...
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As previously reported, a Hennepin County district court judge ruled earlier this fall in a class action case against Surly Brewingthat an employee tip-pooling agreement made with employer coercion or participation violates Minnesota's wage and hour law. Now, the Minnesota Supreme Court has found that Minnesota's wage and hour law expressly permits a private cause of action for an employee who is discharged for refusing to share gratuities.
 
The Minnesota Supreme Courts ruling was issued this week in Burt v. Rackner, Inc. d/b/a/ Bunnys Bar & Grill. The plaintiff, Todd Burt, alleged ...
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Posted in Wage & Hour
 

The last quarter of the calendar year is often a time when companies are busy with planning and budgeting for the following year. Minnesota employers doing budget planning for 2018 need to keep in mind that the state minimum wage rates will be adjusted as of January 1, 2018.

 
Under Minnesota law, the commissioner of the Department of Labor and Industry is required to determine and announce the inflation-adjusted minimum-wage rate each year by August 31. This year, the change in the price deflator is an increase of 1.56 percent.
 

The new state law rates as of January 1, 2018 will be as follows:
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    Last Thursday, August 31, 2017, a federal district court judge in Texas struck down the Obama administrations long-embattled federal overtime pay rule. The rule would have more than doubled the minimum weekly salary required to qualify for the federal Fair Labor Standards Acts (FLSA) white collar exemptions (from $455 per week to $913 per week). The rule was originally scheduled to go into effect on December 1, 2016, but the same Texas-based judge enjoined its implementation late last year.
    As a quick refresher, the FLSA requires non-exempt employees to receive no less than the ...
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    Hurricane Harvey has caused unprecedented damage in Texas, resulting in thousands of companies temporarily (or perhaps even permanently) closing down operations. While the main focus is and should be the safety of everyone affected by Harvey, this natural disaster brings with it a host of legal and practical issues for employers. Even if a company is not in the storms path, it should consider using Harvey as an opportunity to think through some of the preparations that can make disasters a bit easier to manage. Below are a few common questions employers may be faced with in an emergency.
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    A high-profile Minnesota employer, Surly Brewing Company, has been found liable in a state court class action for violations of Minnesota's wage and hour statute governing the pooling of employee tips. The amount of damages has not yet been assessed but the class of employees who stand to receive payment from Surly under the ruling appears to number in the hundreds. Given the prevalence of various kinds of tip pooling in the hospitality industry, a great many Minnesota employers may be at risk for similar litigation under the tip pooling statute. At a minimum, an employer whose ...
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    On June 30, 2017, the U.S. Department of Labor (DOL) filed a brief with the federal Fifth Circuit Court of Appeals in support of its appeal of a lower court ruling that enjoined implementation of its 2016 overtime rule under the Fair Labor Standards Act (FLSA). Had the rule gone into effect when scheduled on December 1, 2016, it would have raised the minimum salary threshold for white collar exempt employees from $455 per week to $913 per week. Under the new Trump administration, the DOL informed the appellate court that it plans to revise the overtime rule that was issued during the Obama ...
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    Just days after withdrawing some of its guidance on joint employer and independent contractor issues, the U.S. Department of Labor (DOL) indicated it will soon reconsider the much maligned Persuader Rule and white-collar Overtime Rule that were both enjoined last fall. The DOL wants to rescind the Persuader Rule and plans to seek additional public comment on the white-collar salary thresholds set forth in the Overtime Rules.
    As a reminder, the Persuader Rule would have required employers to publicly disclose when they use consultants (including lawyers) to obtain labor relations ...
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    The U.S. Department of Labor (DOL) has withdrawn two informal regulatory interpretations, issued in 2015 and 2016, on the subjects of joint employer and independent contractor liability of employers. (See our previous blog posts about the related risks for employers, available here.)
     
    The DOLs announcement this week appears to signal a major course reversal in the wage and hour arena, particularly from 2016 when its Wage & Hour Division had made joint employment a major focus. This is likely true even though the DOL said, in announcing the withdrawal: Removal of the two administrator ...
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    While most of the nation has been focused on the potential repeal of the Affordable Care Act, the U.S. House of Representatives passed a bill this week that could, depending on its progression, drastically affect overtime pay practices in the private sector. The bill, dubbed the Working Families Flexibility Act, would allow private employers to offer paid time off instead of overtime pay to compensate non-exempt workers for overtime hours. Public employers already have the legal right to offer such comp time as a form of overtime pay, but private employers do not.
     

    Not surprisingly ...

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    On Thursday of last week, the U.S. Senate confirmed Alexander Acosta as the 27th Secretary of Labor, filling the final open seat in President Donald Trumps cabinet. With its secretary in place, the U.S. Department of Labor (DOL) will now be able to move forward with decisions on two major rule-making issues.

    The most widely watched decision to be made by the DOL is whether to defend or abandon the Obama Administrations FLSA rule that would, if effective, significantly increase the minimum salary required for white collar exempt employees. As we reported earlier, that rule was blocked by ...

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    Posted in Wage & Hour

    As we previously reported, on November 22, 2016, a federal district court judge in Texas issued a nationwide preliminary injunction enjoining the U.S. Department of Labor (DOL) from implementing and enforcing the new Fair Labor Standards Act (FLSA) overtime rules that were supposed to apply on December 1, 2016. The injunction essentially put the implementation of the new regulations on hold pending further litigation.

    After the injunction ruling, the DOL appealed to the Fifth Circuit Court of Appeals asking for an expedited appeal. The Fifth Circuit granted the DOLs request, but ...

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    Since the days of former President Franklin D. Roosevelt, the United States has closely tracked a new presidents first 100 days in office. Here at Gray Plant Mooty, our employment and labor law teams have been monitoring and will continue to track activity by the Trump administration in the employment and benefits law area. This alert is the first in what we intend to be a series of updates to our employer clients on key developments during the first 100 days.
     
    Department of Labor Developments
    When President Trump was elected in November 2016, the U.S. Department of Labor (DOL) was fighting ...
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    Posted in Wage & Hour

    Many employers round the time of arrival or departure for non-exempt employees to the nearest five minutes, tenth of an hour, or quarter of an hour. Many of those employers have rounded time for years without thinking about whether doing so is legal. Recently, a number of class action suits have been brought against employers based on their rounding practices. Those suits have highlighted the fact that, while the Fair Labor Standards Act (FLSA) does allow rounding of time, there are very specific requirements that must be met to do so.

    The FLSA requires that employers pay their workers ...

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    On Thursday, President Trump named Alexander Acosta as his nominee for U.S. Secretary of Labor following the withdrawal of his initial choice, Andrew Puzder. Mr. Puzder withdrew his name from consideration after he apparently lost support from several Republican senators necessary for his confirmation.

    Mr. Acosta is Trumps first Hispanic nominee and has previously been confirmed by the Senate for multiple federal government positions. Mr. Acosta has not been as outspoken on employment and labor issues as Mr. Puzder, making Mr. Acosta's confirmation less controversial and more ...

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    Well, what a year 2016 has been! As the retrospectives start pouring in, we want to get ahead of the curve and look back on some of the workplace and employment law developments of 2016.

    According to a recent Forbes article, innovations in the world of work this year have included Dutch desks that pull up to the ceiling at 5:30 pm, putting an exclamation point on the end of the workday, and desks in Greece that convert into beds for power naps or overnighters. We see the latter as especially rife with employment law risk. Overtime anyone? (Not to mention the potential for office romance gone awry ...

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    Posted in Wage & Hour

    The December holiday season is, in many ways, a wonderful time of year. To make sure it stays that way, here is a quick refresher for employers on how to sidestep the panoply of employment law minefields that can crop up during the holiday season.

    Religious Discrimination and Accommodations

    December is home to multiple religious holidays, including Hanukkah, Christmas, Kwanzaa, and the Winter Solstice, among others. For this reason, it is important to remember that federal law and many states prohibit religious discrimination in employment and require religious accommodations ...

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    For those in the employment law and human resources fields, there are lots of moving targets to track this holiday season. Two of those moving targets include the temporary block placed on the U.S. Department of Labors (DOL) new federal overtime rules and a pending legal challenge to a new OSHA rule.

    DOL Overtime Rule

    As discussed in our post last week, a federal district court in Texas has issued a nationwide injunction blocking implementation of the new DOL overtime rules that were set to go into effect on December 1st. Yesterday, the DOL appealed the district courts ruling to the U.S ...

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    As we let you know last week, legal challenges to the new federal overtime pay rules scheduled to go into effect on December 1, 2016, are pending in federal district court in Texas. On November 22, 2016, the Judge hearing the Texas cases issued a nationwide preliminary injunction enjoining the U.S. Department of Labor (DOL) from implementing and enforcing the new rules. As such, employers who were busily preparing to comply with those rules have a reprieve at least for now- from having to comply.

    In his decision, Texas Judge Mazzant concluded that the plaintiffs established a prima facie ...

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    In the aftermath of President-elect Trumps victory, many employers are wondering how the president-elects priorities will impact their employment and labor law obligations. One immediate question on employers minds is whether they still must comply with the Obama administrations new federal overtime pay rules set to go into effect on December 1, 2016. It is highly unlikely that there will be any activity related to these rules by President-elect Trump prior to the December 1 deadline, although a later retraction or retrenchment of the rules is certainly possible. Employers ...

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    The White House has detailed a broad series of new administrative steps in response to an earlier Executive Order calling for actions that enhance competition to benefit consumers, workers, and entrepreneurs. The White House described these steps as consistent with the continuing effort of the administration to find ways to increase job growth and reduce income inequality across the country. Although the new administrative steps do not include new prohibitions and generally do not require immediate action, the steps do raise the possibility of near-term legislative and ...

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    Last week, the Equal Employment Opportunity Commission (EEOC) announced the approval of the new EEO-1 report form by the White House Office of Management and Budget (OMB). Beginning in March 2018, the EEOC will use the revised EEO-1 report to collect summary employee pay data from certain employers. Specifically, private employers with 100 or more employees are required to fill out the revised EEO-1 report on an annual basis. Federal contractors and subcontractors with 50-99 employees will not have to submit summary pay data, but they will continue to report demographic data ...

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    On September 9, 2016, the National Labor Relations Board (NLRB) and the U.S. Justice Department filed a petition for certiorari in NLRB v. Murphy Oil, asking the U.S. Supreme Court to determine whether arbitration clauses requiring workers to arbitrate disputes individually and not on the basis of collective or class actions (class action waivers)are invalid under federal labor law. Given the clear split on this legal issue among the federal circuit courts, the Supreme Court appears likely to accept review.

    What's the Split and Where Does Minnesota Stand?

    Class Action Waivers Are ...

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    Posted in Wage & Hour
    The victory for proponents of a new $15 per hour minimum wage in Minneapolis turned out to be short-lived. Yesterday, the Minnesota Supreme Court issued an expedited ruling that struck down a lower court ruling that had required a ballot referendum to amend the Minneapolis City Charter to add the increased minimum wage for Minneapolis workers. We recently blogged about that campaign and the lower courts ruling.  The Supreme Court issued an abbreviated decision, due to the rapidly approaching date for printing ballots, with a more detailed decision to be issued later.


    The Minnesota ...

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    We have previously blogged (here and here) about the expanding risks of joint employer liability under various employment laws, most prominently the National Labor Relations Act and the Fair Labor Standards Act. Recent developments underline just how prominent these risks are becoming for many businesses, including traditional employers, staffing and temp agencies, and franchised companies.
    The U.S. Department of Labors (DOL) Wage and Hour Division recently announced it has obtained a federal court consent judgment and order of $1.4 million jointly against United Plastics ...
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    I may be getting older, but it seems like I just wrote last years post about changes in Minnesota's minimum wage law. However fast it seems to you, on Monday, Aug. 1, 2016, Minnesota's minimum wage will increase again to $9.50 per hour for large employers. The increase stems from significant changes to Minnesota's minimum wage statute in 2014, providing for higher minimum wage rates over time indexed to inflation. Employers should ensure they are prepared for the change and that they are also preparing for the substantial change in salary requirements for white collar exempt employees ...
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    *In honor of the Fair Labor Standard Acts 78th birthday and in light of the important changes to the DOL overtime regulations going into effect December 1, 2016, the Modern Workplace is running a special multipart series entitled FLSA Fundamentals. The series has covered some basics of this important law and includes a discussion of the DOLs new regulations. This is the fourth post in that series.*
     
    As discussed in previous posts, determining the proper FLSA classification of an employee can be taxing. In addition to the white collar exemptions (e.g. Executive Employees
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    The Minnesota Court of Appeals recently clarified that an employee who is fired for refusing to comply with an employers unlawful tip-sharing practice can sue for wrongful discharge under the Minnesota Fair Labor Standards Act (MFLSA) and seek monetary damages, including back pay. In Burt v. Rackner, an employee of Bunnys Bar & Grill (Bunnys) was told that he needed to give more of his tips to the bussers, and that there would be consequences if that did not happen. That did not happen and Bunnys fired the employee for not sharing his tips with other staff.
    The Court ruled that the ...
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    Posted in Wage & Hour
    As we reported last month, the U.S. Department of Labor (DOL) released the long-awaited Final Rule on white collar exemptions to the Fair Labor Standards Act (FLSA), which will go into effect on December 1, 2016. The Final Rule significantly increases the minimum weekly salary amounts required for the white collar exemptions. Many nonprofit employers are concerned about the impact the salary changes will have on their organizations.
    Neither the FLSA nor the regulations provide an exemption from the overtime requirements for nonprofit organizations. However, some nonprofit ...
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    Last week, the U.S. Department of Labor (DOL) released the long-awaited Final Rule on white collar exemptions which will go into effect December 1, 2016. The Final Rule significantly increases the minimum weekly salary amounts required for most exempt employee statuses and also increases the total annual compensation amount for the exempt category of highly compensated employees.
     
    While the Fair Labor Standards Act (FLSA) requires most employers to pay mandatory minimum wages and overtime pay to employees, certain employees are exempt. These exemptions generally require ...
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    *In honor of the Fair Labor Standard Acts 78th birthday and the highly anticipated changes to the DOL overtime regulations, the Modern Workplace is running a special multipart series entitled FLSA Fundamentals which will cover the basics of this important law and culminate in a discussion of the final changes to the regulation upon their release. This is the third post in that series.*
     
    Given the time-intensive and nuanced analysis involved in calculating hours worked by non-exempt employees, compensable and non-compensable working time, and the regular rate of pay, many employers ...
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    Posted in Wage & Hour
    *In honor of the Fair Labor Standard Acts 78th birthday and the highly anticipated changes to the DOL overtime regulations, the Modern Workplace is running a special multipart series entitled FLSA Fundamentals which will cover the basics of this important law and culminate in a discussion of the final changes to the regulation upon their release. This is our second post in that series.*
    Additional contributions by Dorrie Larison.
    As discussed in our previous FLSA blog post, it is crucial for an employer to accurately calculate a non-exempt employees regular rate of pay. If you missed ...
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    *In honor of the Fair Labor Standard Acts 78th birthday and the highly anticipated changes to the DOL overtime regulations, the Modern Workplace is running a special multipart series entitled FLSA Fundamentals which will cover the basics of this important law and end with a discussion of the final changes to the regulation upon their release.*
    As most employers are well aware, employees who are classified as non-exempt under the federal Fair Labor Standards Act (FLSA) must be paid overtime at a rate of one and one-half their regular hourly rate of pay for all hours worked in excess of 40 ...
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    *This is the first in a recurring series of You Cant Make This Stuff Up posts.  One fun part of working in the employment law or HR world is getting to track new and interesting employment law developments and navigate situations that sometimes are stranger than fiction. In our You Cant Make This Stuff Up posts, well bring to your attention some of the strange and sometimes unbelievable situations that employers and employees face.*
     
     
    In recent stranger than fiction news, a Mankato employer was raided Thursday by Minnesota drug agents because it allegedly gave its employees an unusual ...
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    On March 22, 2016, the United States Supreme Court issued an opinion making it clear that employees can establish commonality through the analysis of an expert, and application of his representative sample evidence, for purposes of class certification of state law claims, under Rule 23, and certifying FLSA claims as a collective action, under 29 U.S.C. 216. Tyson Foods, Inc. v. Bouaphakeo, __ S. Ct. __, No. 14-1146, 2016 WL 1092414 (March 22, 2016).

    The plaintiffs in Tyson Foods worked in the kill, cut, and retrim departments of a Tyson Foods pork processing plant in Iowa. To do their ...

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    The highly anticipated final white collar salary exemption rule (Final Rule) is one step closer to becoming reality. The proposed rule would raise the minimum weekly salary requirement for the FLSA white collar exemption from the current $455 per week amount ($23,660 annually) to $970 per week ($50,440 annually). You can read our earlier post about the proposed rule here.
    On Tuesday, March 15, the U.S. Department of Labor sent the Final Rule to the White House Office of Management and Budget (OMB) for review, ahead of the expected review and release schedule. The specific provisions of ...
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    Regardless of ones political views, the passing of a sitting United States Supreme Court Justice always has the potential to create major waves on the waterfront of federal law. But the recent death of Justice Antonin Scalia, in particular, could have significant implications for employers. There are currently several cases pending before the Supreme Court that raise important employment and labor law questions. The potential voting shifts that always follow a reconfiguration of the Supreme Court could impact the ultimate outcome of those cases.

    Just a few of the employment and ...
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    In furtherance of pay equality and greater pay transparency, new requirements for federal contractors took effect on January 11, 2016, making it unlawful to discriminate against a party who inquires about, discusses, or discloses pay or compensation. (See 41 C.F.R. Part 60-1.) The executive order is intended to promote pay transparency and openness by permitting workers and job applicants the freedom to share information about pay or compensation without the threat of subsequent discrimination.

    The executive order is one of the methods the Obama administration has chosen to ...

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    Wage and hour issues heated up earlier this year when the U.S. Department of Labor (DOL) released a proposed rule that would more than double the salary threshold for employees to be classified as exempt under the "white collar" exemptions to the federal overtime requirements. You can read our post from July of this year to learn more about the proposed rule, which would raise the minimum weekly salary requirement for the white collar exemptions from $455 per week to $970 per week.

    The increased salary issue was expected to reach the boiling point with the release of the final DOL rule in ...

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    The National Labor Relations Board (NLRB) has just approved a ruling that certain employees (in this instance, tugboat captains) are not supervisors within the meaning of the federal labor law (the National Labor Relations Act, or NLRA). The NLRB said it drew this conclusion because the employer did not show the employer held the captains accountable for the performance of the mates whom they directed. A dissenting NLRB member complained that the Boards conclusion in this case fails the test of common sense.

    The tugboat captains case makes painfully clear that identifying and ...
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    The holiday season picks up in full swing this week with the celebration of Thanksgiving. Along with the merriment of the holiday season, though, comes a dramatic drop in productivity and a rise in vacations, flu epidemics, religious celebrations, weather contingencies, employee reviews, and holiday party antics. Here are answers to some of the vexing employment law questions that typically become as ubiquitous at this time of year as snowflakes in Minnesota:

    • Are employees entitled to time-and-a-half pay for holidays worked?  No unless time worked on a holiday includes overtime ...
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    Posted in Wage & Hour
    In the midst of busy work days, it can be helpful to revisit important fundamentals. As most employers are well aware, employees who are classified as non-exempt under the federal Fair Labor Standards Act (FLSA) must be paid overtime at a rate of one and one-half their regular hourly rate of pay for all hours worked in excess of 40 hours in a workweek.
    An employees regular rate is, however, not necessarily the employees set hourly rate of pay. Instead, the regular rate of pay is the hourly rate that the employee has, in fact, received for each weeks work. Because overtime pay is normally ...
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    Posted in Leave, Wage & Hour
    The Star Tribune reported today that the Minneapolis mayor and city council have, at least for now, tabled a controversial proposal to require businesses to adopt predictable scheduling practices or face monetary penalties. As discussed in last weeks post, the City's earlier proposal would have penalized Minneapolis-based employers for failing to give substantial advance notice of work schedules or changing schedules on short notice. The proposal faced significant opposition from Minneapolis businesses and even some of the workers that the proposal was intended to help (see ...
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    Throughout the year, we've posted about efforts at the federal and Minnesota legislative level to enact paid sick leave laws.  So far, there's no federal or Minnesota state-wide law, but there is clearly a growing movement afoot around the country to pass such laws. And now, the Minneapolis City Council is getting in on the action. The City Council is considering an ordinance that has been referred to as one of the most far-reaching paid sick leave initiatives in the nation. The proposed ordinance, known as the Working Family Agenda, would require every business in the city of Minneapolis ...
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    Third party employers of home companionship or care workers may soon be required to pay those workers overtime pay under the federal Fair Labor Standards Act (FLSA). Last week, the United States Court of Appeals for the District of Columbia Circuit issued a ruling upholding the U.S. Department of Labors (DOL) Final Rule on the Application of the Fair Labor Standards Act to Domestic Service (the Final Rule). As a result, domestic service workers employed by third parties may soon be subject to FLSA overtime pay requirements.

    The Final Rule
     
    The DOLs Final Rule was issued some time ago and ...
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    Its that time of year again.  On Saturday, August 1, 2015, Minnesota's minimum wage will increase once more to $9 per hour for large employers.  Minnesota's minimum wage statute was changed significantly in 2014 resulting in new definitions of large and small employers, higher and changing minimum wage rates over time, and indexing to inflation.  Employers should ensure that they are prepared for the changes to come.

    Minnesota's minimum wage is based on the size of the employer as determined by gross sales, with large employers paying more than small employers.  Under the amended 2014 ...
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    The U.S. Department of Labor (DOL) yesterday issued Administrators Interpretation 2015-1, providing guidance on the classification of employees and independent contractors. The DOL identifies the misclassification of employees as independent contractors as a high priority enforcement issue, labeling it one of the most serious problems facing affected workers, employers, and the entire economy. The DOLs guidance is intended to help employers in classifying workers and to curtail misclassification.

    The fifteen page document outlines the familiar multi-factor economic ...
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    On July 6th, the federal Department of Labor initiated a rule-making process designed to significantly increase pay for white collar managers, administrators and professionals by more than doubling the salary an employer is required to pay to classify them as exempt from overtime requirements.  Estimates are that the change could result in employers being required to pay overtime to some 4.6 million workers who are currently classified as exempt from the overtime rule. The rule, as proposed, would also mean that employers would have to re-examine the overtime exemption for ...
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    As we all get started on our New Years resolutions, employers should add one more to their list revising any email policies. In the waning days of 2014, the National Labor Relations Board (NLRB) issued an important email ruling that affects all employers, whether unionized or not. In the Purple Communications case, the NLRB held that non-management employees with access to their employers email system have a presumptive right to use that system during non-working time to communicate about union organizing or about other topics related to improving their wages and working ...

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    Believe it or not, 2014 is drawing to a close and a new year is around the corner. As you prepare for 2015, here are some items on the U.S. Department of Labors regulatory agenda that you will want to track:


    We've been on the look-out for proposed revisions to the Fair Labor Standard Acts (FLSA) white collar exemptions from overtime and minimum wage requirements since March of 2014. That was when President Obama issued a directive for the Labor Secretary to modernize and streamline the existing regulations and increase the minimum salary for the white collar exemptions. The Department of ...

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    Unless you were unplugged, you probably saw all the high profile names that made legal headlines last week. Included in that list was David Letterman. In a quick whirlwind of activity, a CBS intern filed a wage and hour lawsuit against CBS News and Letterman's production company, Worldwide Pants, only to drop the suit a short time later with a public apology. In the lawsuit, the CBS intern claimed that unpaid Late Show student interns were employees and that the failure to pay them wages violated wage and hour laws. The suit, had it proceeded, would have sought to recover back wages ...
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    I was sitting by a campfire last night and, although it was a beautiful night, I could not help but notice that there are signs of fall everywhere. The leaves are beginning to change, the evening air had a slight nip, and darkness arrived much earlier in the evening. These reminders of fall mean that, because of Minnesota's participation in Daylight Savings Time, we need to think about the semi-annual ritual of the changing of the clocks. Each spring we Spring Ahead by moving the clocks forward one hour at 2:00 a.m. on a designated date. Each fall, when Daylight Savings Time ends, we Fall ...

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    Wage theft is becoming a popular phrase in the media. A New York Times article recently announced that More Workers Are Claiming Wage Theft. Other news outlets are using the phrase to describe lawsuits brought by workers of a wide mix of employers, ranging from Jimmy John's to NFL franchises. Wage theft even has its own website.

    At its core, wage theft is simply a catchphrase designed to draw attention to violations of wage and hour laws. The use of the term wage theft appears to be a relatively recent phenomenon. There were more references to wage theft in U.S. newspapers during the ...

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    As a follow up to our last Week in Review, wage and hour claims are still making headlines this week. Another technology company, SpaceX, has been sued for allegedly failing to provide employees with required breaks or to properly pay employees for off the clock work.  SpaceX also faces a separate lawsuit alleging that it failed to give former employees proper advance notice of their layoffs under California law.  Another big legal headline this week is the announcement that a federal judge has rejected a proposed $325 million settlement agreement between Apple, Google, Adobe, Intel and ...

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    Its been an interesting week on the wage and hour legal front. One of the big names in social networking, LinkedIn, made headlines this week when the U.S. Department of Labor announced a settlement of allegations that LinkedIn failed to properly record, account for, and pay certain employees for all of their hours worked. You can read the link below for lessons learned from this settlement. In other news, a federal judge ruled that critical federal government employees who worked during last year's government shutdown may be owed additional pay under the Fair Labor Standards Act ...

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    Apple is making the news this week in connection with its recently issued 'iTime' patent for a new smartwatch device and as anticipation grows for the soon-to-be released iPhone 6. The news on Apple isn't only technology related though. Apple is also fighting a class action lawsuit in California for allegedly denying lunch breaks and final paychecks to employees. The link below provides greater detail on this lawsuit, as well as other employment-related lawsuits Apple is currently defending. Be sure to add a review of your wage and hour practices to your to-do list this year.  And, for ...

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    On August 1, 2014, Minnesota's new minimum wage law takes effect. The new law changes the states minimum wage requirements in several ways, including new definitions of large and small employers, progressively increasing rates over time, and indexing to inflation.

    Minnesota sets its minimum wage based on the size of the employer as determined by gross sales. Under the new law, a large employer is one that has gross sales over $500,000 in annual business. Small employers are defined to have gross sales under $500,000 in annual business. Prior to the change, the gross sales ...

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    A new labor agreement reached in France requires employers in certain technology and consultancy sectors to take steps to ensure employees are not plugging into work on their free time. France has had a 35-hour workweek for several years, and many believed it was being intruded upon by frequent out of office distractions caused by email and other technology. To combat this, French employers in these sectors are required to take steps to make certain that employees completely disconnect outside of their working hours. 

    The invasion of work into personal lives is an international ...
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    The Star Tribune is reporting that Minnesota legislators have reached a deal that will increase Minnesota's minimum wage for most employers to $9.50 per hour by 2016. When the proposed law is passed and signed by Governor Dayton, Minnesota will join 21 other states and the District of Columbia in having a minimum wage that exceeds the current federal law minimum of $7.25 per hour. Currently, the state of Washington has the highest minimum wage, coming in at $9.32 per hour.  The U.S. Department of Labor provides a summary of state minimum wage rates on its website: 

    In addition to state wage ...

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    This weeks news included advice to employers on tackling mobile device issues in the workplace while, on other fronts, Division I football players tackled labor laws. On Wednesday, the Chicago regional office of the National Labor Relations Board ruled that Northwestern University football players are employees under federal labor law and, therefore, can unionize. Northwestern University has announced plans to appeal, and well be monitoring this legal development and its implications closely. Meanwhile, employers continue to struggle with employees using mobile devices ...
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    Earlier this month, President Obama directed the U.S. Department of Labor to update the federal overtime pay regulations by revising the salary component of the executive, administrative, and professional exemptions.  To qualify for these overtime pay exemptions (a.k.a. the white collar exemptions), employees must receive a minimum, guaranteed weekly salary of at least $455 and satisfy a duties test that requires them to primarily perform exempt-level tasks. The Presidents directive was aimed only at the salary component of the white collar exemptions. The currently ...

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    Overtime pay is a big theme this week following President Obamas directive that the U.S. Department of Labor work to update the existing federal regulations on overtime pay. The most prominent change that is expected is an increase in the $455 minimum weekly salary that must be paid for an employee to be exempt from overtime pay requirements under federal wage and hour law.  Before any overtime pay change can be finalized, the Department of Labor must complete a rule making process that could take a year or longer.  Speaking of overtime, March Madness has begun once again.  Check out the links ...

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    The Obama Administration announced this week that it will give employers with more than 50 but less than 100 employees one more year to comply with the Affordable Care Acts employer mandate. (But beware: You cant lay off workers to ensure that you fall below the 100 employee mark!) That means that these employers have until 2016 to provide insurance to full-time employees before being subject to any penalties for non-compliance.

    While employers covered by this extension may be breathing a sigh of relief, they shouldn't forestall putting in place one of the key action items for ACA ...
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    Brrrrrrrrrrrrrrrrr . . . it's cold out there! The recent cold snap that has swept the nation is affecting the workplace and technology. The cold weather serves as an important reminder for employers to have an up-to-date severe weather policy. In addition, before you email your employees from your smartphone at the bus stop to tell them that they don't have the day off work, check out NPR's reminder that your phone doesn't like the cold weather any more than you do. But don't worry; technology won't completely fail you this winter. We have a link to the top winter weather apps. Stay ...

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    The holiday season is a time for reflection, including reflection on our technology habits. Many individuals are aiming to be truly home for the Christmas holiday by engaging in digital detox plans and setting their smartphones and other mobile devices aside to spend time with family and friends. Disconnecting from workplace technology during non-work hours is also becoming a trend at other times of the year, and many employers are encouraging this trend. Another take-away from this holiday season may be to reflect on what your shopping habits can teach you about hiring ...

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    Posted in Wage & Hour

    I sleep with Siri, and I'm not alone. According to a Pew Internet and American Life Project study, 44% of Americans sleep with their cell phone, many of which contain a work email account. Like that critical mass, I want to be connected and to be able to respond to a client if they email at 11:59 p.m. Because attorneys are exempt under wage and hour law, they don't have to be paid extra above and beyond our salary for emailing in the wee hours. That's not, however, the case with non-exempt employees. For employers that don't have effective policies and policing of after-hours technology ...

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    Posted in Wage & Hour

    Many employers have implemented direct deposit payroll systems to reduce the transaction costs associated with paper payroll checks and the risks of the loss or theft of paper checks. A payroll card is an increasingly popular method used by employers to provide for the direct deposit of wages, particularly for employees without a deposit account at a financial institution. A payroll card is a debit or prepaid card onto which the employer loads an employees wages. The employee may then access those wages through withdrawals of cash at an ATM machine or by making purchases using the ...

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    Posted in Wage & Hour
    A settlement in the lawsuit against Lady Gaga by her former personal assistant, Jennifer Olsen, was announced this week, a month before the case was scheduled for trial. Ms. Olsen sued the pop star claiming that she was not exempt from wage and hour laws and entitled to additional compensation for her overtime work. How much overtime? Ms. Olsen claims she was at Lady Gaga's beck and call 24/7. Her suit alleged that she was often required to sleep in Lady Gaga's bed so that she could immediately respond to any assignments given throughout the night.


    The settlement may be good news to Lady Gaga ...

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    This week, as we celebrated National Boss Day, many people reflected on their relationship with their boss. Technology can sometimes challenge this relationship, for example, when employees have bosses that love email and refuse to communicate or manage an employee face-to-face. Another highly debated topic is whether bosses and subordinates should friend each other on social networking sites. Technology impacts these boss-subordinate relationships, but also the broader relationship between a company and its employees. For instance, recent court cases examined ...

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     Health Exchange Notice Due to Employees by October 1

    We all breathed a huge sigh of relief when the Obama Administration announced that the employer mandate under health care reform would be postponed until 2015.  (Although we cant help reminding employers that they need to be working toward compliance even now) Lately weve been hearing from employers wondering if they still have to provide exchange notices. Yes! The notice is still required, despite the delay in the employer mandate. Heres a refresher on what that entails.

    What is the exchange notice?

    The purpose of the notice ...
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    This week, Labor Day and National Payroll Week served as good reminders that our post-recession economy is different and the way people work within it is also different. Although the number of jobs has grown, part-time work is becoming the new normal, and virtual work meant that some labored even in the midst of their Labor Day barbecues. National Payroll Week celebrated wage earners and payroll professionals, while polls show that the payroll-to-population employment rate fell in August, and the number of households with union members continues to drop.
     
    This changing nature of the ...
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    Given a recent uptick in court rulings enforcing class action waivers, it may be time to revisit whether your company prefers to resolve disputes with employees in court or through arbitration. Class action waivers in arbitration agreements have been gaining in popularity with employers since the U.S. Supreme Court upheld an arbitration clause containing a class-action waiver in the AT&T Mobility v. Concepcion case in 2010 and again this year in the American Express Co. v. Italian Restaurants case. These Supreme Court cases involved consumer disputes, but numerous employers ...

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    As of July 1, 2013, the Federal Motor Carrier Safety Administrations Hours-of-Service Regulations relating to drivers of a commercial motor vehicle (CMV) are changing. These changes require some significant advance planning for employers of those who drive a CMV.

    Who is affected by these new rules? 
    First, the changes apply only to drivers of a CMV. A CMV is a vehicle that fits anyof the following descriptions:
           Weighs 10,001 pounds or more
           Has a gross vehicle weight rating or gross combination weight rating of 10,001 or more
           Is designed or used to transport 16 or more passengers ...
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    When I'm not lawyering, I like to spend time around horses. That sometimes means spending time observing the habits of horse barn owners and other operators of small agricultural facilities. For an employment lawyer, its scary out there on the farm. If you read the help wanted ads on horse industry list serves and web sites, or peruse the bulletin boards at feed stores, or talk to stable and farm owners, you'll quickly conclude that unlawful employment practices are common and that compliance is not a big concern.
    Agricultural workers and non-agricultural workers are treated ...
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    The 2013 U.S. Supreme Court term features several employment law cases important to employers and human resource professionals, including the following significant pending cases:


    Vance v. Ball State University: This case involves the definition of a supervisor for purposes of harassment claims under Title VII of the Civil Rights Act. Under current law, employers may be held strictly liable for the acts of supervisors but harassment by a co-worker will not create liability unless the employer knew or should have known about the harassment. This decision will clarify a ...

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     The Patient Protection and Affordable Care Act (PPACA) is now more than 3 years old and, like any 3-year-old, is beginning to assert itself in new and often clumsy ways. While the stated purpose of the PPACA is to broaden the pool of insured individuals, employers in many sectors are seeking ways to keep employees ineligible for health-care coverage. Institutions of higher education are the latest employers in the news for seeking ways to avoid having their adjunct faculty covered by health insurance. 

    A recent article in The Chronicle of Higher Education highlights the plight of ...
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    Is workplace flexibility a necessary casualty of difficult economic times?  When thinking about the innovations that make up the modern workplace for which this blog is named, employers embrace of flexible work hours and locations would be very near the top of the list.  Advances in technology particularly electronic connectivity have allowed employers to move away from traditional concepts of the workplace and the workday.  More employers permit telecommuting by their employees and allow flexible work hours. There are, however, signs in the business world that employees may have ...
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    Agencies employing personal care assistants (PCAs) might want to up their unemployment insurance coverage. For the second time in recent months, the Minnesota Court of Appeals has struck down a law that precludes family members who act as PCAs from obtaining certain benefits. In the case of Weir v. ACCRA Care, Inc., the court determined that a statutory prohibition preventing immediate-family-member PCAs from obtaining unemployment benefits is unconstitutional. The court made a similar ruling in December of 2012 in Healthstar Home Health, Inc. v. Jesson. In that case, a ...
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    Today is Presidents Day, or, as it is officially called, Washington's Birthday.  We also celebrate Black History Month each February, making this month a time for reflection on the long history behind our country's efforts towards achieving equality in the workplace.  In honor of both Presidents Day and Black History Month, I'm sharing the list below of Presidents who were in office when our country passed some of its landmark federal civil rights or employment laws, along with some interesting facts about each of the Presidents who played a role in the history behind our current ...
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    Recent Department of Labor statistics indicate that the majority of employers who have breached Fair Labor Standards Act ("FLSA") provisions related to breastfeeding mothers have failed to provide an appropriate space for new moms to express milk. The FLSA was amended by the 2010 Patient Affordable Care Act to require employers to provide reasonable break time and a private space for a nursing mother to express milk for one year after the child's birth. All employers are expected to comply with the law, but employers with fewer than 50 employees are not subject to the requirements if ...

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    Class action can be a scary term for any employer. During the past decade, the number of wage and hour class actions brought against employers by large groups of employees claiming violations of wage and hour laws under the Federal Labor Standards Act (FLSA) has increased dramatically. These cases, also known as collective actions are expensive and time consuming to defend. For more than two decades, employers have increasingly relied upon mandatory arbitration agreements in an effort to reduce the risk of class action claims. These agreements require employees to waive their ...
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    As we welcome 2013, its time to focus on New Years resolutions. With President Obamas re-election and governmental agencies announcing increased enforcement efforts in the employment area, 2013 is likely to be an active year for employers. Now is a good time to focus on what the year may bring and to position your company to minimize employment law risks. A few resolutions that should make your priority list include:
    1. Update Your Employee Handbook: 2012 brought a number of legal changes, including an aggressive focus by the National Labor Relations Board (NLRB) on the enforcement of ...
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    While employers should take steps to comply with all applicable legal obligations, it doesn't hurt to know those areas of compliance that are going to be given particular attention by enforcement agencies. Earlier this week, the EEOC announced its Strategic Enforcement Plan  (SEP) for Fiscal Years 2013 2016. The SEP gives employers a peek at the measures the EEOC believes are needed to achieve its goal of deterring discriminatory practices in the workplace.

    The SEP identifies the following six enforcement priorities:

    1. Eliminating Barriers in Recruitment and Hiring. The Commission ...
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    Usually, come year-end, you're hearing all kinds of suggestions about how to delay income until next year, so as to reduce the tax burden this year. This year is different. Yes, as the fiscal cliff talk reminds us daily income tax rates for those with high incomes may go up. But there's more, and its not dependent on what Congress does about the fiscal cliff or the deficit .... Starting in 2013, highly compensated employees have to pay an additional Medicare tax.
    Wages over $200,000 will be subject to an additional 0.9% Medicare tax. In addition, unearned income (such as ...
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    The United States Department of Labor recently announced the creation of a virtual workplace flexibility toolkit designed to provide employers, employees, policy makers, and others with information and resources about workplace flexibility.
    October is National Disability Employment Awareness Month, and the Toolkit is designed in part to assist employers of disabled workers who seek accommodations. The Toolkit web site makes clear, however, that it is intended to address all kinds of complex employment situations, including the circumstances of parents of young ...
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    Last month, my colleague Kathryn Nash wrote about the dangers when employers, particularly for-profit companies, offer unpaid internships.  This is a legal issue that has been around for quite some time, but for some reason maybe because the risks of getting caught had not seemed very high many companies continue to hire unpaid interns.  (For a funny take on unpaid internships, check out the "Stuff White People Like" blog entry #105.)


    Well, the stakes for companies using unpaid interns have just gotten higher.  Last Wednesday, an intern filed a wage and hour claim against Charlie Rose and ...

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    In Minnesota, a proposed bill is now working its way through the legislature that, if enacted, would make it significantly more difficult for a worker in the construction industry to qualify as an independent contractor, rather than an employee. The current version of this bill includes new, detailed, and restrictive criteria for qualification as an independent contractor.  The new criteria proposed include, among other things, that an independent contractor must maintain a separate business with an office, equipment, and materials, and must incur the main expenses ...

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    I was researching cupcake places for an upcoming trip to New Mexico (I have a thing for cupcakes) when I came across the following advertisement for an unpaid internship on a cupcake shops website:

    We're looking for interns! While these positions are unpaid, there is potential to lead to paid employment with [XYZ Bakery]. An internship with us is a great opportunity to learn all aspects of working in a scratch bakery, you'll have the opportunity to learn about cake batters, fillings, buttercream, fondant, gum paste, cake decorating and tiered cake construction.

    No, I wasn't thinking of ...

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    In Minnesota, we've known that employee handbooks can be contracts since the Pine River State Bank case in 1983. Since then, courts have continued to find that the policies and statements in employee handbooks to employees can, in fact, be the terms of an enforceable contract between employer and employee. Employees have been awarded significant damages for breach of contract when policies outlined in a handbook are not followed, or promises made in a handbook are not kept.

    Minnesota courts have held that employers can protect themselves from contractual liability by including ...

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    One of the most litigated issues in todays employment arena is the classification of employees under the overtime exemption provisions of the Fair Labor Standards Act (FLSA). Generally, under the FLSA, employees must be paid overtime for any time worked over forty (40) hours per week. However, the FLSA also classifies certain types of positions as exempt from the overtime requirements. In order to qualify for the exemption, the employee must meet the specific requirements of each exemption. Unfortunately, many employers wrongfully classify employees as exempt when, in fact, the ...
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    The U.S. Department of Labor has an app for that. On Monday, the DOL announced the launch of its DOL - Timesheet App, for iPhones (click here to download the app on iTunes). The application provides employees with an easy way to keep track of their working time. It also allows employees to add notes about time entries and easily export the entries. There's even a glossary with links to the DOL website, meant to educate employees about their rights under the Fair Labor Standards Act.

    Here's what the DOL says about the use of the DOL - Timesheet App:

    This new technology is significant because ...
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    It was another busy week in the world of technology and employment and labor law.  Mercifully, the Charlie Sheen uproar seems to have tapered off for the time being (although you can now watch his online rants on Ustream).  Perhaps even more shocking, Eric Meyer at The Employer Handbook reported on a sexting case that turned out surprisingly well for an unprepared employer (dont expect to be so lucky if you repeat their mistakes).  Other stories from the week include a great summary of some of the wage and hour issues associated with telecommuting, updates in the WikiLeaks/Bank of America ...
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    You may be wondering what cats have to do with employment law. Well, last week the U.S. Supreme Court recognized the cats paw theory of employment discrimination for the first time, making it easier for employees to prove discrimination and for employers to get burned by legal liability. The phrase cats paw stems from an Aesop fable in which a monkey uses flattery to induce a cat to retrieve roasting chestnuts from a hot fire and then absconds with the chestnuts after the cat has burned its paws. Based on the fable, cats paw refers to a person who is unwittingly used to accomplish another's ...

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