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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To Avoid Job and Wage Cuts CARES Act Funds Payrolls
In our March 27 E-lert, we explained important provisions of the CARES Act. One of them provides small businesses and nonprofits with forgivable loans to fund payroll and other costs incurred between February 15 and June 30, 2020 as an incentive to keep employees on the payroll. Under the “Paycheck Protection Program” the federal government will essentially give an employer 2.5 times its monthly payroll, to use for paying wages, rent, mortgage interest and utilities.
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Coronavirus Aid Relief and Economic Security Becomes Law
On March 27, President Trump signed the Coronavirus Aid Relief and Economic Security (CARES) Act, a $2 trillion bill that contains provisions that will provide relief to businesses and individuals negatively impacted by the recent pandemic.
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Department Of Labor Issues Final Rule On Regular Rate Exclusions From Overtime Calculations
On December 12, 2019, the U.S. Department of Labor (DOL) announced a revised interpretation listing payments that can be excluded from the “regular rate” used to compute overtime pay for non-exempt employees under the Fair Labor Standards Act. The DOL also issued a Fact Sheet and Highlights on this revised interpretation.
DOL Issues Final Overtime Rule, Increasing Required Salary Level for Exempt Employees
The Department of Labor issued, on September 24, 2019, its final rule revising the salary requirements for exemption from the Fair Labor Standards Act’s mandate to pay overtime for hours worked over 40 in a workweek. The new rule increases the salary required to meet the executive, professional and administrative exemptions to $684 per week (the equivalent of $35,568 per year). The required compensation for highly compensated employees is raised to $107,432.
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NLRB Expands Scope of Mandatory Arbitration Agreements
The National Labor Relations Board has now addressed the use of mandatory arbitration agreements following the U.S. Supreme Court’s 2018 decision in Epic Systems v. Lewis, which upheld the enforceability of arbitration agreements containing waivers of the right to bring class or collective actions over employment-related disputes, rejecting the NLRB’s then-position that such waivers violate the National Labor Relations Act (NLRA), as discussed in our prior E-lert.
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Court Finds DOL’s New Persuader Rule “Flawed”
The U.S. District Court in Minnesota ruled, on June 22, 2016, that the Department of Labor’s new interpretation of the advice exemption from the persuader rule is “untenable” and “flawed.” The Court did not issue an injunction against the new interpretation, which goes into effect July 1, 2016, but that was based on its finding that the DOL suspended the most objectionable reporting requirement after the lawsuit was filed. The challenge to the new interpretation was filed by Worklaw Network, a national alliance of labor and employment firms of which we are a member. Our firm, along with Seaton, Peters & Revnew, P.A. of Minneapolis, represented Worklaw, as we discussed in a prior post, “Shawe Rosenthal and Worklaw Just Sued the DOL.”
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NEW OVERTIME RULE
On May 17, 2016, the Department of Labor announced the release of its long-awaited revisions to its overtime exemption rule. The new rule doubles the salary requirement for white collar (executive, administrative and professional) employees from $23,660 per year ($455 per week) to $47,476 per year ($913 per week). The required minimum salary for the highly compensated employees’ exemption also has been raised from $100,000 to $134,004. These salary levels will be subject to automatic adjustments every three years. The new rule does not change the duties test for any of the exemptions. It will take effect on December 1, 2016. Our firm will be holding a complimentary webinar on Wednesday, May 25 to discuss the changes and offer practical suggestions on how to comply with the new rules.
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