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By: Noah Finkel, Camille Olson, Scott Mallery, Andrew McKinley and Kevin Young

Seyfarth Synopsis:  Today the U.S. Department of Labor issued its draft new interpretive regulation (or NPRM) attempting to define employee versus independent contractor status under the Fair Labor Standards Act.  The NPRM jettisons an earlier attempt under the prior Administration to modernize and simplify how…

Continue Reading Meet the New Interpretation, (Pretty Much the) Same as the Old Interpretation: the DOL Proposes Its Own Independent Contractor Definition for the FLSA

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Continue Reading California Supreme Court Hears Oral Argument to Define “Independent Contractor”

Authored by Robert Whitman

Seyfarth Synopsis: The Department of Labor has scrapped its 2010 Fact Sheet on internship status and adopted the more flexible and employer-friendly test devised by Second Circuit.

In a decision that surprised no one who has followed the litigation of wage hour claims by interns, the US Department of Labor has abandoned its ill-fated six-part test…
Continue Reading DOL Bids Adieu to Six-Factor Internship Test

Co-authored by Cheryl Luce, Kyla Miller, and Noah Finkel

Seyfarth Synopsis: A recent decision highlights why the FLSA is not always the remedial statute created to protect low-income workers by holding that four commission-based sales representatives, each earning six figures, were not exempt from the overtime requirements because they were not paid on a salary basis.

Our readers…
Continue Reading Big Commissions & FLSA Omissions: How Employers Could Be Required to Pay Six-Figure Earners Overtime Wages

Co-authored by Steve Shardonofsky and Kevin A. Fritz

Seyfarth Synopsis: As employers begin to pick up the pieces following Hurricane Harvey, management will likely encounter questions about employee pay, benefits, and leaves of absence during and after this disaster, and may also have questions about how to help their workers get by during this difficult time. After making sure your …
Continue Reading Practical Advice for Weathering Pay and Leave Issues Following Hurricane Harvey

Co-authored by John Giovannone, Kyle Petersen, and Noah Finkel

Seyfarth Synopsis: Earlier this month, the Ninth Circuit chose to side with the Second Circuit, and not the Sixth Circuit, to opine that mortgage underwriters fail to meet the FLSA’s administrative exemption from overtime test because underwriting duties “go to the heart of… marketplace offerings, not to the internal …
Continue Reading Making A Mountain Of The Administrative/Production Dichotomy Molehill

Authored by Alex Passantino

Seyfarth Synopsis: On July 26, 2017, the U.S. Department of Labor will publish its anticipated Request for Information on the White-Collar Overtime Exemption in the Federal Register. The RFI will give the regulated community 60 days to provide its comments in response.

The RFI seeks input on a wide variety of topics, many of which involve…
Continue Reading DOL Seeks Comment on Overtime Rule

Co-authored by Robert J. Carty, Jr., John Phillips, and Alex Passantino

Seyfarth Synopsis: On June 30, the Department of Labor filed its reply brief to support its appeal from a preliminary injunction that enjoined the DOL from implementing its 2016 revisions to the salary-level tests for determining applicability of the FLSA’s executive, administrative, and professional exemptions. …
Continue Reading Finally Briefed: Appellate Experts’ Perspective on the Fully Briefed 5th Circuit EAP Exemption Appeal

iStock-513046321Authored by John P. Phillips

Seyfarth Synopsis: Recently the Ninth Circuit doubled down on its decision that service advisers at car dealerships are not exempt from the FLSA, despite being overturned once by the U.S. Supreme Court. This case gives the Supreme Court an excellent opportunity to address the proper construction of FLSA exemptions and allow the plain and common …
Continue Reading The Ninth Circuit Goes All In. Will the Supreme Court Call?

Co-authored by Rachel M. Hoffer and John Phillips

Seyfarth Synopsis: Vampire Weekend crassly and rhetorically asked us, “Who gives a f*** about an Oxford comma?” As it turns out, lots of people: First Circuit judges, dairy farmers in Maine, truck drivers, your authors—the list goes on.

And when lists go on—as a Maine dairy company recently learned the hard…
Continue Reading Comma, Comma, Comma, Comma, Comma Chameleon: Liability Comes and Goes with Oxford Comma