Wage and Hour Law and Practice

On March 31, 2017, the United States Civilian Board of Contract Appeals (CBCA) dismissed a contractor’s claims against the Department of Veterans Affairs (VA) for a lack of jurisdiction, stating that the contractor should have secured a final decision from the General Services Administration (GSA) prior to filing its claim. According to the CBCA, since the dispute was over the terms of a GSA Schedule contract and not over contract performance, proper procedures call for a decision from the GSA Schedule contracting officer before the CBCA can weigh in on the dispute.

Continue Reading Agency First! – CBCA Refuses Jurisdiction over Contractor’s Challenge of Wage Rate Adjustments Despite Final Decision from Contracting Officer

As we previously reported, Congress has taken its final steps in repealing Obama’s Fair Pay & Safe Workplaces rule, one of the most controversial rules enacted by the Federal Acquisition Regulatory (FAR) Council under President Obama. On February 6, the Senate gave the final vote of approval of the House Resolution overturning the rule, and on March 27, President Trump, unsurprisingly, signed the Resolution into law. At the same time, he also signed legislation overturning three other rules, including the U.S. Bureau of Land Management’s land use planning rule and two rules issued by the U.S. Department of Education.  Though much of the Fair Pay rule had never been implemented due to a court injunction, this legislation formally revokes the rule and ensures that the FAR Council cannot enact a similar rule without Congressional approval.

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Bass, Berry & Sims attorney Doug Dahl provided insight for an article in InsuranceNewsNet on the impact to employee benefits based on future regulatory shifts in a Trump administration, especially surrounding the Affordable Care Act, the final Department of Labor (DOL) fiduciary rule and the DOL overtime rule. “This expansionary trend for the DOL is likely to be significantly restricted under the Trump presidency, taking a back seat to agencies more aligned with Trump’s agenda,” Doug noted. “Trump’s presidency makes the viability of repealing or at least delaying these rules much more likely.”

The full article, “Regulation Reversal the Ultimate Trump Card?” was published by InsuranceNewsNet on January 19, 2017, and is available online.

In an online article published by Quick-Service Restaurant (QSR) magazine, Bass, Berry & Sims attorney Tim Garrett discussed options that employers have in the wake of the injunction placed on the Department of Labor’s (DOL) overtime rule and the subsequent appeal filed by the DOL. The timing of the rule has put many employers in a tough spot, with many having prepared for a December 1, 2016, effective date, only to have an injunction placed on the rule on November 22. Employers now face the decision of whether to undo implemented changes with the hope that the rule will not go into effect in the next few months, or to keep changes in place. “It’s been our consistent advice that those who have already announced and implemented changes either in salaries or in classifications, should probably stick with those and not attempt to undo them, which would likely be more disruptive,” said Tim. “The savvy employers know that this is not just a budget issues, but a morale issue.”

The full article, “What is the Future of the Overtime Rule?” was published on January 6, 2017, by QSR magazine and is available online.

In an article published by The Corporate Counselor, published by ALM’s Law Journal Newsletters, Tim Garrett discussed the latest developments and next steps surrounding the Department of Labor’s (DOL) overtime rule. The November 22, 2016, injunction of the rule and subsequent appeal by the DOL have created uncertainty for employers, with some having prepared for the rule to go into effect in December 2016 only to have the rule challenged and stalled. President-elect Trump’s appointment of Andrew Puzder as labor secretary, a known advocate of deregulation, has caused speculation that the salary level rule will be changed before implementation. “The ruling does provide the new administration with an opportunity to stop, or modify, the new salary level,” Tim said. “The legal landscape has provided significant opportunity for change through the political landscape.”

The full article, “Injunction of the DOL’s Overtime Rule and its Appeal,” was published in the January 2017 issue of The Corporate Counselor and is available online or the PDF below.

Download Document – The Corporate Counselor (January 2017)

Just one month after the U.S. District Court for the Eastern District of Texas shut down a Fair Pay and Safe Workplaces final rule, the District Court has enjoined the implementation of the Department of Labor’s (DOL) final rule updating its Fair Labor Standard Act (FLSA) exemptions. Had these gone into effect, they would have had a significant impact on government contractors’ labor costs.

In 2014, President Obama directed DOL to update and modernize its overtime regulations to be consistent with the intent of the FLSA. The FLSA provides for minimum wage and overtime pay protections for those covered by the Act. Exempted employees generally fall into the executive, administrative and professional (EAP) categories, and DOL has used the following three tests to determine whether an exemption applied: salary basis test, salary level test and duties test. “Exempt” employees are not eligible for overtime pay (time and a half) for hours worked over 40 in a work week.

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In an article published by Government Executive, Bass, Berry & Sims attorney Richard Arnholt provided insight on the state of the Fair Pay, Safe Workplaces rule following a preliminary injunction issued by a Texas district judge in October blocking parts of the rule. Richard argues that the president and agencies went around Congress in a quest for efficiency and cost savings, but provided no reliable data to prove the need for the rule, while forcing contractors to provide detailed reporting on non-final decisions and determinations of alleged labor law violations that could end up denying them a contract without due process.

Continue Reading Obama’s ‘Fair Pay, Safe Workplaces’ Rule for Federal Contractors Appears Endangered

In a ruling announced yesterday, a federal judge in Texas has halted nationwide the effectiveness of the new salary level required to be paid by employers to those employees who are exempt from overtime.  This alert will discuss briefly the ruling, its impact, and what employers should do in response.

Continue Reading Update: Judge Halts Implementation of DOL Overtime Rule

Bass, Berry & Sims attorney Tim Garrett provided insight for an article outlining the case brought by 21 states challenging the Department of Labor (DOL) related to the new overtime regulations set to take effect December 1, 2016. Although the challenge is under review, Tim still is advising “that employers continue to plan to comply with the new rule effective Dec. 1, unless the court does impose a nationwide injunction. The risks of failing to comply are simply too great and can lead to immediate legal exposure.”

Continue Reading Court’s Decision on Overtime Rule Expected Soon

Bass, Berry & Sims attorney Tim Garrett provided insight for an article outlining the emergency motion filed by 21 states to bar the Fair Labor Standards Act (FLSA) overtime rule, set to take effect December 1, 2016. The new rule will more than double the salary level for those employees classified as exempt from overtime pay from the current level of $23,660 to the new level of $47,476, or $913 per week. In the motion filed this week, the 21 states are challenging the FLSA’s new salary-level test. In the article, Tim states “I do not anticipate that the motion to delay the new salary level will be successful, other than perhaps in a manner specific to the state-plaintiffs.”

Continue Reading 21 States File Emergency Motion to Bar FLSA Overtime Rule