Seyfarth Synopsis: In the December 16, 2019, Federal Register, the U.S. Department of Labor’s Wage & Hour Division (WHD) published its final rule clarifying and updating the regulations governing the regular rate requirements under the Fair Labor Standards Act (FLSA).

Generally, the FLSA requires overtime to be paid at a rate that is at least one and one-half times the
Continue Reading WHD Finalizes Regular Rate Regulations

Authored by Cheryl Luce

Seyfarth Synopsis:  If it becomes law, a new bill will expand the FLSA’s tip provisions into areas traditionally regulated by state law and create new areas of ambiguity that could be a breeding ground for yet more wage-hour litigation.

We have been covering the saga of a controversial 2011 DOL regulation that gave employees the right
Continue Reading Introducing the Tip Income Protection Act: Congress’s Misguided Attempt to Turn the FLSA Into a Wage Payment Law

‘Twas the week before Christmas, and the WH-L-PG

Contemplated the wage-hour year lyrically;

We considered the issues our readers would most like to savor

And decided the tastiest one was class waiver.

“Employers and employees,” begins the debate,

“Are free to agree that they shall arbitrate.”

But a critical question remains–it is whether

Employees can be stopped from
Continue Reading Here We Come a Waiver-ing: 2017 Year in Review

Authored by Alexander J. Passantino

Earlier this week, the Office of Management and Budget’s Office of Information and Regulatory Affairs completed its review of the Wage and Hour Division’s Final Rule titled “Amendments to the Fair Labor Standards Act.” Assuming there were no significant issues with the draft regulation, this means we should see publication of the Final Rule in

Continue Reading White House Completes Review of Regulatory Package Containing Tip and Fluctuating Workweek Issues

Co-authored by Alex Passantino and Leon Sequeira

Late last year, the U.S. Department of Labor released its long-awaited Fall 2010 Semi-Annual Regulatory Agenda.  The Semi-Annual Regulatory Agenda (the “reg agenda”) gives the public a preview of the regulatory activity the DOL expects to undertake in the coming months (and years).  The reg agenda contains brief descriptions and target dates for DOL’s regulatory initiatives, including Notices of Proposed Rulemaking (in which the Department will propose new or revised regulations and allow the public a period of time — usually 60 to 90 days — to provide its input through comments) and Final Rules (in which the Department, after considering the comments provided through the process described above, issues the rules by which the regulatory community will be bound).

Among the many regulatory activities described in the reg agenda are a number of initiatives by the Department’s Wage & Hour Division.  Among the items identified by WHD are proposed rules increasing employer recordkeeping obligations under the Fair Labor Standards Act  and implementing amendments to the Family and Medical Leave Act, as well as final rules addressing amendments to the FLSA (and a number of other issues) and the nondisplacement of qualified workers under the Service Contract Act.

“Right to Know Under the Fair Labor Standards Act”

In this proposed rulemaking, DOL “proposes to update the recordkeeping regulations under the Fair Labor Standards Act in order to enhance the transparency and disclosure to workers of their status as the employer’s employee or some other status, such as an independent contractor, and if an employee, how their pay is computed.”  This proposed rulemaking already has garnered significant attention.  Originally identified by the Department early last years as “Records to be Kept by Employers Under the Fair Labor Standards Act,” this proposal immediately drew the concern of employer community when it was reported that it would require employers to, among other things, prepare a written analysis of an employee’s exempt status under the FLSA, provide a copy of that analysis to the employee, and maintain a copy of that analysis for review by a WHD investigator.  The fact sheet released by the Department along with the reg agenda and the rebranding of the proposal does little to alleviate this concern.

The proposal was originally slated for publication in August 2010, but now has a target proposal date of April 2011.  Given the significance of the issues implicated by this rulemaking, we will continue to monitor its progress and fully anticipate submitting comments for the regulatory record at the appropriate time.

Continue Reading Obama Administration Announces Wage & Hour Regulatory Initiatives