The Labor Department (DOL) is in the news at the beginning of 2017.
DOL files legal brief regarding delay in new OT rule.
The Labor Department filed a Brief on December 15, 2016 stating the the Texas court acted in error in delaying the implementation of the new OT rules that increased the wage cap for those salaried employees subject to OT at $47,476.
The DOL challenged the court’s claim that the FLSA does not allow the use of a salary test for white collar overtime exemption stating that previous court rulings had upheld the position. The DOL noted that the court also did not identify a plausible basis to overturn the final rules salary level. The DOL noted that the court’s nationwide delay caused serious harm to the millions of employees that were to be affected by the new rule.
The DOL’s request for an expedited hearing to remove the injunction was granted. All briefs in the case are to be filed by Jan. 31, 2017. Oral arguments will occur soon after, after which the court will rule on the appeal.
All this may be moot as the Obama administration chose to implement the new rule by executive order. It is thought that President Trump can choose to cancel the order upon taking office on Jan 20, 2017.
DOL delays decision on employee use of electronic devices.
The Labor Department continues to push back the time line for making authoritative comments on employee’s use of portable electronic devices to check on work related items while not at their work place. As noted in a recent Advi$or on Technology and the new OT rule, many employers are looking for clarification on whether an hourly employee needs to be paid when they check company email away from work, say late at night or while out with friends. This issue became especially concerning to employers when millions of salary employees were to fall under the FLSA with the Dec 1, 2016 implementation of the new salary exempt levels in determining who will have to be paid OT. The DOL noted that it is still looking for pubic input on the topic and that it has moved the topic to its long-term agenda and thus does not expect to publish any comments on the subject for at least another 9 months. The topic has been under review at the DOL since at least May 2015.
DOL unveils new campaign on worker misclassification
The DOL Labor’s Wage and Hour Division is working with the IRS and many states to combat employee misclassification and to ensure that workers get the wages, benefits, and protections to which they are entitled. They have entered into partnerships with 36 states to work together on this issue in a variety of ways – through, for example, information sharing and coordinated enforcement – to ensure that they are all using their resources most strategically, effectively and efficiently to address this significant problem. In some cases, these agreements include the cooperation of the Employee Benefits Security Administration, Occupational Safety and Health Administration, Office of Federal Contract Compliance Programs, and the Office of the Solicitor.
The Dept noted that this collaboration is making a difference. In 2015, Labor Dept investigations resulted in more than $74 million in back wages for more than 102,000 workers in industries such as the janitorial, temporary help, food service, day care, hospitality and garment industries. The Labor Dept noted that they will continue to aggressively enforce accurate classification of workers.
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