Martha Zackin

DOL Expands Industries Eligible for Overtime Exemption for Commissioned Employees

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By Alexandra D. Thaler

On May 18, 2020, the federal Department of Labor, Wage and Hour Division issued a final rule that expands the types of industries that may be able to take advantage of the overtime pay exemption for certain employees paid primarily on a commission basis.  Specifically, the Fair Labor Standards Act (FLSA) includes an exemption from the obligation to pay overtime to employees who work more than 40 hours in a workweek if they work for a “retail or service establishment,” are paid at least 1.5 times the applicable minimum wage, and receive more than half of their total earnings for a representative period in the form of commissions.  The term “retail or service establishment” is defined to mean establishments 75% of whose annual dollar volume of sales of goods or services (or of both) is not for resale and which are recognized as retail sales or services in the particular industry.[1]  Under long-standing Division regulations, some industries were identified as having “no retail concept” (29 CFR § 779.317), and this list was considered in determining which industries could not claim the exemption, while the WHD deemed that others “may be recognized as retail” (29 CFR § 779.320), and therefore could avail themselves of the exemption if the other requirements were established.  Now that the DOL has withdrawn both lists, employers in a wide variety of industries—from accounting firms to laboratory equipment dealers to sign-painting shops to those selling window displays—should consider whether they may fit the definition of “retail or service establishment” and therefore can take advantage of a newfound flexibility in compensation for certain employees.

Over the last eight months, the DOL has issued several new final rules interpreting the FLSA, including:

  • Updating guidance for determining joint employer status (January 16, 2020, available here);
  • Changes to the calculation of the “regular rate” so that certain kinds of compensation no longer have to be factored into an employee’s rate for purposes of determining their overtime rate of pay (December 16, 2019, available here); and
  • And, as we previously explained, updating the earnings thresholds for employees exempt under the administrative, executive, learned professional and “highly compensated employee” exemptions (issued September 24, 2019, effective January 1, 2020, available here).

Of note, the withdrawal made public on May 18th has immediate effect, without any notice and comment period or other delay.

[1] Certain retail or service establishments may be exempt from the FLSA altogether if they do not meet minimum thresholds for sale of goods or services in interstate commerce. 209 U.S.C. § 203(s), 29 CFR § 779.337.

Martha Zackin

DOL Issues Misclassification Guidance Broadly Defining “Employee”

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By Martha J. Zackin

On July 15, 2015, the Wage and Hour Division of the Department of Labor issued guidance aimed at clarifying the distinction between “employees” and “independent contractors.”   Published as an Administrator’s Interpretation, the DOL states that in its view, “most workers are employees under the Fair Labor Standards Act” (FLSA).  The Administrator’s Interpretation also states that its analysis and the broad definition of employee it espouses also applies to certain other federal laws, specifically referencing the Family and Medical Leave Act.   Importantly, the DOL announced a “misclassification initiative,” pursuant to which it has entered into numerous memorandum of understanding with states and the IRS to combat what it perceives as a significant, nation-wide problem of misclassification that deprives workers of important protections such as minimum wage, overtime compensation, unemployment insurance, and workers’ compensation. Read more →

Martha Zackin

DOL Issues Proposed Updates to FLSA White Collar Exemptions

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By Alexandra D. Thaler

On June 30, 2015, the Department of Labor issued its anticipated update to the so-called “white collar exemptions” to the Fair Labor Standards Act (FLSA).   The proposed rule more than doubles the minimum weekly salary threshold for the application of the Executive, Administrative, Professional, and Computer Employee overtime exemptions, and ties the rate to annual data on national wages for full-time salaried employees.  The rule would increase the minimum salary for exempt employees from the current $455 per week, or $23,660 annually, to an estimated $970 per week, or $50,440 annually when the final rule issues, likely in 2016.  The proposed rule would also increase the minimum compensation required to qualify for the Highly Compensated Employee exemption, from $100,000 to $122,148 annually based on current data, also tethered to annual wage rates.  The regulations do not change the optional hourly payment method for qualifying computer employees, which would remain at $27.63 per hour and would not be tied to changes in national wage data.

While the proposed rule does not currently include changes to the duties tests that also must be met for each exemption, in its 285-page statement accompanying the draft rule, the DOL advises that it is considering possible changes to the duties tests, and invites comments on these and other aspects of the exemptions.  For example, the DOL seeks comment on whether the duties tests “are working as intended to screen out employees who are not bona fide” exempt employees, specifically, whether employees should be required to spend a minimum amount of time performing “primary duty” work, whether the single standard duties test for each category is appropriate, and whether the “concurrent duties” regulation should be modified to prevent exempt-classification of otherwise nonexempt employees.  The Department also seeks comments on various other issues relating to the exemptions, including whether the national wage data methodology is appropriate, whether employers should be permitted to credit certain payments, such as non-discretionary bonuses and commissions, toward the salary requirement, and whether any additional occupational titles or categories should be included in the regulations regarding computer and information technology sectors.

In the short term, the rule is expected to affect nearly 5 million workers who currently make less than the proposed $50,440 annual salary threshold.  Still more will be impacted by the increase in the Highly Compensated Employee salary level.  The ultimate impact of the new rule remains unclear, with some economists predicting that workers’ hours, and ultimately wages, will go down to compensate for the changes.   The DOL will accept the public’s comments on the proposed rules, which can be submitted in writing or online until September 4, 2015.  All comments are made available online at http://www.regulations.gov.

Martha Zackin

New Beginning

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I discovered the joys of blogging in 2009, when I helped launch an employment law-related blog at another firm.  I recently joined Bello/Welsh, LLP, a boutique labor and employment law firm, where I am excited to be launching our new blog.

Our primary goal here at WorkLawBlog (worklawblog.net) is to educate you about interesting developments in labor and employment law (and our firm).  If we can entertain you along the way, all the better.

On to business… much has happened recently.

  • The Department of Labor issued a final rule extending the Fair Labor Standard Act’s minimum wage and overtime protections to direct care workers who provide home care assistance to elderly people and people with illnesses, injuries or disabilities.   Companionship workers, or individual workers who are employed only by the person receiving services or that person’s family or household and engaged primarily in fellowship and protection and care incidental to such activities, will still be considered exempt from the FLSA’s minimum wage and overtime protections.  You can access the DOL’s press release here.
  • The National Labor Relations Board launched its first mobile app, available free to iPhone and Android users.  According to the NLRB’s press release, the app provides information for employees, unions and employers- whether unionized or not- with information about their rights and obligations under the National Labor Relations Act.  The NLRB joins the DOL’s Wage and Hour Division and the Occupational Safety & Health Administration, both of which have already launched apps.  Click here for the WHD timesheet app and here for OSHA’s heat index for outdoor workers safety app.

And last (for now), but certainly not least…

  •  A NY federal court judge has ruled that Lady Gaga’s former personal assistant is entitled to have a jury decide her claim for unpaid overtime.  According to the former assistant, she was required to be on-call 24/7 and should be paid nearly $400,000 for 7,000 of overtime hours, worked over the course of 13 months.