Wage and Hour Law and Practice

With the end of the year rapidly approaching, employers should ensure compliance with the Occupational Safety and Health Administration’s (OSHA) new electronic reporting requirements for injury and illness data. The deadline for compliance was December 15, 2017, but OSHA’s website states that they will be accepting submissions of Form 300A through December 31, 2017.

What is the purpose of the new OSHA reporting rule?

According to OSHA, “making injury information publicly available will ‘nudge’ employers to focus on safety.” OSHA will post the establishment-specific injury and illness data it collects under this recordkeeping rule on its public website (after removing personally identifiable information).

The final rule also prohibits retaliation against any employees for reporting injuries or illnesses and requires that employers notify employees of their right to report work-related injuries and illnesses free from retaliation.

Continue Reading OSHA Reporting Deadline Quickly Approaching on December 31 – Here’s What You Need to Know

On November 29, 2017, a California Superior Court judge ruled that employers that require employees to set aside time for a shift and have them call in to determine if they will indeed be working are required to pay employees “reporting time pay,” even if the employee never actually steps foot inside the business for a shift.  This ruling serves as a cautionary reminder to employers that California disfavors “on-call shifts,” and employers should expect to pay employees a premium to utilize such shifts.

Continue Reading Employers May Face Steep Reporting Time Pay Obligations for Requiring Workers to Be On Call

Several new minimum wage rates are slated to take effect on January 1, 2018 in various cities throughout California, as well as the state as a whole.  California employers should begin preparing now to adjust employee wages to ensure compliance with the new rates.

A summary of the new minimum wage rates for nonexempt employees is provided below:

Continue Reading California Employers Should Prepare for New Minimum Wage Laws: A Summary of New Minimum Wages Effective January 1, 2018

Although the Trump administration rescinded its guidance on worker misclassification earlier this year and appears to have otherwise taken a “softer approach” to misclassification enforcement, California employers should remain diligent in properly classifying their workers and should not allow lax federal enforcement to lead to similarly lax corporate policies.  California employers remain subject to strict laws governing worker misclassification.  California law presumes that all workers who render services for another are non-exempt employees unless employers prove that they are independent contractors or exempt employees. Cal. Lab. Code § 3357. Employers who willfully misclassify their workers can be subject to steep penalties.

Continue Reading California Employers Should Remain Cautious when Classifying their Workforce, Notwithstanding More Lenient Federal Policies

In an article for the October 2017 issue of The Corporate Counselor, Bass, Berry & Sims attorney Tim Garrett examined the latest ruling related to the Department of Labor’s (DOL) overtime rule following Texas Federal Judge Amos Mazzant’s final rule striking down the Obama-era rule. If implemented, the rule would more than double the minimum salary that employers would have to pay “white-collar” workers to meet overtime pay exemptions. Judge Mazzant’s final ruling cited that the DOL rule had made the salary level too high and that the exemption would inadvertently become based on pay and not duties of the position. Following the ruling, the DOL withdrew its appeal of the preliminary injunction and the Fifth Circuit granted the request.

Continue Reading Update: Stage Now Set for DOL to Adopt More Modest Salary Level for Overtime Exemptions

Texas Federal Judge Amos Mazzant has issued a final ruling striking down the overtime rule.  In the August 31 ruling, Judge Mazzant used essentially the same reasoning on which he based his temporary injunction ruling.  In light of this final decision, the appeal of his temporary injunction likely becomes moot.  In addition, Judge Mazzant made clear that he is not finding that the DOL is prevented from ever using a particular salary level, but rather is invalidating this particular rule as going “too far” in essentially eliminating those who perform exempt duties but make less than the high salary threshold.

Continue Reading Federal Judge Issues Final Ruling Striking Down Overtime Rule

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.