Labor Law

  • December 1, 2016
    Guest Post

    by Ruben J. Garcia, Professor of Law, University of Nevada Las Vegas William S. Boyd School of Law

    Today, Dec. 1, was the day that the Obama Administration’s revision to the overtime rules would have gone into effect, were it not for a nationwide injunction issued by a federal court last week. The revised rule aimed to increase the amount under which employees would be automatically eligible for overtime pay for hours worked over 40 in a week. The rule required all employees earning below $47,476 to be paid time and a half for hours worked over 40 in a work week. Now, those employees will only be eligible for overtime if they also meet the tests for exempt duties as promulgated by the U.S. Department of Labor (DOL), a subject of frequent litigation because of the inherently subjective elements the exempt duties tests.

    On Nov. 22, a federal court in the Eastern District of Texas enjoined the DOL’s revision of the Rule which determine when an employee is “exempt” from the overtime pay requirements. Business groups complained primarily about the Rule’s index which would automatically keep the salary threshold in line with increases in cost of living—the absence of which has kept the minimum salary at a stagnant level for decades. States sued to block the rule principally on a federalism challenge, which was turned away by the federal court in short order based on Supreme Court precedents. 

    But the Court accepted the challenge of the states and the private plaintiffs under the Administrative Procedure Act, finding that the DOL went beyond its authority in setting the salary minimum at $47,476. On this theory, the DOL has a minimal role in filling out congressional intent about the extent of the overtime exemption for “bona fide executive, administrative, and professional” exemption from overtime requirements under the Fair Labor Standards Act of 1938. For decades, the DOL has set a presumptive salary threshold, beneath which workers are eligible for overtime regardless of their duties. Over that threshold, workers might be exempt if they perform sufficient duties. The revised rule did not affect the duties standards most recently revised in 2004 during the Bush administration. The 2016 revision, however, raised the salary threshold from $23,660 to $47,476. This doubling of the threshold beneath which employees are automatically entitled to overtime pay brought loud protests from the business community about how the increase would decrease the flexibility of employers and workers. Nonetheless, many employers increased employee salaries to ensure that workers would still be over the salary limit for the overtime exemption. Although the court expressly stated it was not challenging the authority of the DOL to set any threshold, the court did not say what salary level would have been reasonable.

  • November 28, 2016

    *This piece was originally posted on Medium

    by Adam Shah, Senior Policy Analyst at Jobs With Justice

    On Nov. 22, a Texas federal blocked the U.S. Department of Labor from implementing its revised regulations governing overtime pay. The updated rules were set to go into effect on Dec. 1 and would have helped millions of people either get paid for their extra work or earn more of their time back.

    The Obama administration sought to significantly raise the maximum wage at which workers would still be eligible to receive overtime pay. The update was long overdue, as the original overtime rules had eroded due to inflation and corporations’ increasing attempts to misclassify workers to exempt them from overtime protection. The rule would have directly impacted at least 4.2 million working people, many of whom work in jobs that once would have had overtime protection but no longer do, for the reasons stated above.

    The judge’s decision also calls into question more than seven decades of Department of Labor regulations, which have consistently stated that “working people who receive a weekly salary below a certain threshold are not considered executive, administrative, or professional employees, no matter how a corporation classifies them.”

    The Obama administration does have the option of filing an emergency appeal of the decision in its short time remaining in office, but that court may not be very open to the administration’s arguments.

  • August 17, 2016

    By Kevin Battersby Witenoff

    In The Hill, Melissa Boteach and Rebecca Vallas advocate to reform TANF and expound upon the necessity to improve other social welfare programs.

    The ACLU has filed a lawsuit against the Florida Department of Corrections on behalf of transgender woman, Reiyn Keohane. The ACLU and Keohane are alleging the DOC has infringed upon her Eighth Amendment rights by disallowing hormone therapy treatment, reports Andrew V. Pestano of UPI.

    The Huffington Post published an op-ed by Jason Steed in which he explains why it may be in Republican Senators' best interest to reconsider a hearing for Supreme Court nominee Merrick Garland.

    Annalyn Kurtz in The New York Times highlights the challenges faced by new mothers in a male-dominated field that are representative of the struggles females encounter in the workplace across the country.  

  • May 20, 2016
    Guest Post

    by Herman N. (Rusty) Johnson, Jr., Associate Professor of Law, Samford University Cumberland School of Law

    May 18, 2016, is a momentous day for U.S. workers. The U.S. Department of Labor released new overtime rules that restore the New Deal-era promise of the Fair Labor Standards Act (FLSA) by increasing the salary level required to exempt certain employees from overtime pay. The new rules will be a boon for working and middle class Americans, as it will increase their pay, provide them more time to spend with their families, lead to improvements in health and productivity, and create jobs.

    The FLSA, originally enacted in 1938, assures overtime premium pay of time-and-a-half for employees who work more than 40 hours per week. However, the FLSA exempts some types of employees from the overtime protection, in particular white collar workers classified as executive, administrative, professional, outside sales, and computer employees. Congress delegated authority to the Secretary of Labor to define the exemptions, and generally, employers must satisfy three requirements to properly classify employees as exempt pursuant to a white collar category: 1) the employees must be paid a fixed salary, 2) the employees must be paid at least a specific salary amount, and 3) the employees’ primary duties must involve one of the enumerated exemptions.

    Currently, the DOL’s regulations set the salary level at $455 per week, which is $23,660 on an annual basis. The rigors of inflation and inattention have eroded the FLSA’s overtime protection at this level. The designated amount is less than the poverty line for a family of four and only 1.6 times the federal minimum wage of $7.25. Furthermore, at present, a mere seven percent of salaried workers receive overtime protection, whereas 62 percent did so in 1975.

    The new DOL regulations increase the salary level required to trigger the white collar exemptions. The revised rule, which takes effect December 1 of this year, sets the salary level at $913 per week, or $47,476 annually, which equates to the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census region (currently the South). The new rule also creates an updating mechanism which benchmarks the salary level every three years to the same metric.

  • May 19, 2016

    by Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service Law, The George Washington University Law School

    The founders of Uber had a great idea. We know that because millions of Americans use its service daily. We also know it because hundreds of thousands of individuals have signed up to drive for Uber, and many of them love the opportunities it presents: make a little extra cash, control your working hours, and make money from a car that sits idle much of the time.

    On the negative side, Uber treats drivers as independent contractors, not employees, and that means that the drivers pay the employer’s as well as the worker’s share of Social Security and Medicare taxes, they get no vacation or sick pay, and if they are thinking about saving for retirement, they have to kick in 100 percent. In addition, some drivers are unhappy because Uber is able to unilaterally change the conditions under which its drivers work, generally to the detriment of the driver. Some drivers have taken Uber to court or to the National Labor Relations Board, claiming that they are being improperly classified as independent contractors, not employees under state and federal laws. Some of those cases may result in favorable rulings several years from now, but given the fact that many drivers work for Uber only a few hours a week or no more than half time, there is a real likelihood that many of them will be found to be properly classified as independent contractors.

    The leadership in Teamster Local 117 in Seattle had a different idea. They decided to seek legislation that would entitle Uber drivers (and others working for other companies, including taxi companies) to engage in collective bargaining as a means of gaining some leverage with Uber. Under current law, the right to engage in collective bargaining is limited to “employees,” and the idea was to create a comparable right for Uber drivers. The union convinced the Seattle City Council, led by Mike O’Brien, to enact such a law. There was considerable opposition to the law from Uber and its competitors, as well as the business community generally. Mayor Ed Murray declined to sign the law because of his concerns of the burdens that it would place on the City to implement it, but he did not veto it, and so the law became effective on December 23, 2015.