A recent US Court of Appeals for the Tenth Circuit ruling determined that a pipeline inspector’s Fair Labor Standards Act (FLSA) lawsuit against an energy company could not be adjudicated without involving the subcontractor that paid his wages. According to this Law360 article, the Tenth Circuit ruled that the inspector was trying to play “fast and loose with the courts” and using his subcontractor contract “to his advantage when it suits him and disavow it when it does not.” McDermott Partner Rachel Cowen represented the subcontractor.
The Protecting the Right to Organize (PRO) Act, union neutrality and changes to wages and enforcement of health and safety regulations are part of the legislative plan on its way to Congress. Of these proposals, the PRO Act, which has already passed the US House of Representatives, may face the most opposition in the Senate.
In a recent article by the Society for Human Resource Management, McDermott partner Ron Holland examines the potential impact of President Biden’s infrastructure package on the American workforce and economy.
Aspiring employment lawyers ask questions of their mentors. Try this one: Did you ever go to trial on a wage and hour class action?
The answers—ranging from “no” to “almost but …” and “rarely” to “once”—reveal an important truth: Employment lawyers handling class actions better know the inner workings of getting class settlements approved.
Writing for Law360, McDermott partner Christopher Braham examines how approval triggers play a role in employment class actions.
Hurry Up and Wait: Department of Labor Delays Implementation of New Worker Classification Regulations
Businesses strive to draw the line correctly on who is an employee versus who is an independent contractor. New regulations issued by the Department of Labor (DOL) in early January promised to help. See, 29 CFR §§795.100. But by late January, those regulations under the Fair Labor Standards Act (FLSA) were frozen.
Unlike laws passed by Congress, administrative regulations are far more easily altered when a new president takes office. The regulations published by President Trump’s DOL in January had an effective date of March 8, 2021. Now, President Biden’s DOL will have an additional 60 days beyond that effective date to announce what will happen next.
Those new regulations provided a much simpler test for classifying workers. While including five factors, the results turned on two of those factors: (1) the nature and degree of the worker’s control over the work and (2) the worker’s opportunity for profit/loss based on personal initiative or investment. Most significantly, those regulations focused on the actual practices, rather than what may be possible.
This same issue may also arise under other federal statutes as well as state laws, including those governing on whom unemployment insurance taxes must be paid. With multiple statutes (each with its own distinctive test), drawing the line between independent contractors and employees correctly turns not only on meeting whatever the ultimate FLSA test turns out to be.
The most difficult is the so-called ABC test:
- The worker is free from the control and direction of the hiring entity in connection with the work’s performance, both under the contract for the performance of the work and in fact.
- The worker performs work that is outside the usual course of the hiring entity’s business.
- The worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed.
That is the test that is embedded in proposed federal legislation: the Protecting the Right to Organize (PRO) Act. That is also now the official test for most jobs under most California laws.
Joe Biden’s ascendance to the presidency not only spells doom for many of the Trump administration’s business-friendly employment policies; it also may place established tenets of federal labor law on the chopping block. Biden may bring with him to the White House an ambitious pro-labor platform aimed at giving workers and unions a leg up after four years in which the Trump administration moved the legal needle sharply in employers’ direction.
A recent article in Law360, featuring McDermott partner Ron Holland, outlines four areas that labor and employment lawyers should watch after the Biden transition.
Employers must use reasonable diligence in tracking nonexempt telecommuters’ work hours and may do this by providing a reporting procedure for unscheduled time, the US Department of Labor (DOL) stated in August 24 guidance. The workers then must be compensated for all reported work hours, even those not requested by the employer.
In a recent article by the Society of Human Resource Management, McDermott partner Ellen Bronchetti explained that employers should have policies that prohibit working off the clock. “If an employer has an expectation that an employee was working from 8:00 am to 4:00 pm and the employee works later at night responding to emails, that could lead to wage and hour liability.”
Beginning January 15, 2020, new, more employer-friendly regulations determine how overtime pay is calculated under the Fair Labor Standards Act. We identified the top 10 things you should know about what is being changed or clarified.
In today’s high-stakes environment, in-house counsel and HR professionals are often on the frontlines, responding to headlines that threaten business and reputational objectives.
Join McDermott Will & Emery’s Employment and Employee Benefits practice groups at a half-day forum in our Chicago office on Oct. 10. This forward-looking program is designed to drive conversation around emerging trends to help employers craft their own narrative, instead of being held captive by it.
Proposed regulations will alter which white-collar employees remain overtime exempt. Staying vigilant on Fair Labor Standards Act compliance is critical; read on to learn more on proposed increases to the minimum salary necessary to qualify for the executive, administrative or professional exemptions.
When California’s Dynamex decision rolled out the “ABC test”, it placed the burden on the employer to prove independent contractor (IC) status. In a presentation at the Employment and Employee Benefits Forum in California, McDermott’s lawyers discussed the implications of Dynamex, as it applies to various types of employers as well as those using staffing companies. Additionally, they cover Dynamex’s impact on worker classification and employee benefits plans, particularly under ERISA.
Lastly, they provide best practices that employers can do now to prevent litigation.