In the latest salvo in the battle over the classification of workers as independent contractors or employees, the U.S. Department of Labor announced the publication of a new proposed interpretation. The final document set forth in Notice of Proposed Rulemaking will not be an actual rule or regulation, because the DOL has no statutory authority to define the distinction between independent contractors and employees in a way that is binding on courts. Rather, the interpretation is published as a guide as to how the Department will enforce the Fair Labor Standards Act, and in the hope that courts will defer to the DOL’s views on the subject.
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New Law Lets Sexual Harassment Claimants Get Out of Arbitration Agreements
A new federal law allows employees to avoid arbitration agreements with respect to sexual harassment or sexual assault claims. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 applies to pre-dispute arbitration agreements, such as those included in employment contracts or stand-alone arbitration agreements entered into at the time of hire. Many employers have adopted arbitration agreements because such agreements can contain enforceable waivers of the right to bring collective or class actions. They also avoid the risk of run-away jury verdicts.
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Do Employers Have to Pay For COVID-19 Testing Time?
As many employers implement a COVID-19 vaccination-or-weekly-testing mandate (soon to be required of all employers with 100+ employees, as we discussed here), a recurring issue is whether the time that employees spend getting that weekly test must be paid under federal and state wage and hours laws. And the answer is a lawyerly, “Well, it depends.” (Of course).
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Beyond Voluntary Paid Leave: What Are the Other Employment-Related Provisions of the Coronavirus Relief Act?
In addition to the voluntary extension of the Families First Coronavirus Response Act’s paid leave provisions, which we discussed in our December 22, 2020 E-lert, the Coronavirus Response and Relief Supplemental Appropriations Act (the Act), included in the massive (5593 page) stimulus bill signed into law on December 27, 2020, expands or extends relief benefits under the Coronavirus Aid Relief and Economic Security (CARES) Act, discussed in our March 27, 2020 and March 30, 2020 E-lerts. Specifically, the Act clarifies the tax treatment of Paycheck Protection Program (PPP) loans, permits second PPP loans to certain borrowers, expands eligibility for first PPP loans, adds to the list of forgivable expenses; expands the employee retention credit, and extends enhanced unemployment benefits.
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My Zoom Trial
My Zoom Trial
Last week I had my first Zoom trial in state court. It was a bench trial in a breach of contract case. I worked from my home office.
Treasury Department Provides Guidance on President Trump’s Deferral of Payroll Taxes
The U.S. Department of the Treasury issued, on August 28, 2020, a Notice concerning President Trump’s Presidential Memorandum concerning employers’ deferral of payroll taxes. Here are the key points:
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President Issues Memoranda on Payroll Taxes and Unemployment Insurance
President Trump issued, on August 8, 2020, Memoranda and Executive Orders concerning unemployment insurance, payroll tax withholding, evictions, and student loans. Below, we discuss the two employment-related Presidential Memoranda (which have been incorrectly designated Executive Orders in the media, although there is little technical distinction between the two). Neither requires immediate action by employers.
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Selecting Employees for Recall or Rehire
In the COVID-19 recession, many employers made reductions in force en masse, thus avoiding selection decisions that might be challenged as discriminatory. If the same employers recall or rehire employees en masse, they will continue to avoid such decisions. But what if the employer’s need to recall or rehire is partial or gradual, such that some employees are brought back before others? Such choices can give rise discrimination claims. To protect itself, an employer will need to apply and document a non-discriminatory method of choosing among employees.
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Salary Add-Ons Do Not Bar Fluctuating Workweek Overtime, U.S. DOL Rules
Bonuses, shift differentials, hazard pay, commissions and other add-ons do not preclude use of the fluctuating workweek method of computing overtime, according to a U.S. Department of Labor interpretive regulation issued May 20, 2020. 
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DOL Streamlines Its Regulation Interpreting Commission Sales Exemption from Overtime
Apparently inspired by the tidying up trend, the Department of Labor threw out two sections of its interpretation concerning the commission sales exemption from overtime that no longer gave it joy. The commission sales exemption covers sales employees who are primarily paid by commission. To come under the exemption, the employee must be employed in a “retail or service” establishment, must earn at least 1.5 times the minimum wage, and more than half the employee’s compensation for a representative period (not less than one month) must represent commissions.
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