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In a recent change of position, the Department of Labor (“DOL”) has endorsed a new standard for determining when an unpaid intern is entitled to compensation as an employee under the Fair Labor Standards Act (“FLSA”).  We previously reported on an earlier DOL effort to tighten up the restrictions on the use of unpaid interns.  It looks like the DOL has decided to change course.

By way of further background, the United States Supreme Court has yet to address the issue, but several federal circuit and district courts have attempted to determine the proper standard to assess these situations.  Recognizing that internships are widely supported by the education community, these courts have sought to strike a balance between providing individuals with legitimate learning opportunities and the exploitation of unpaid interns.

In keeping with the rulings of the courts, the DOL, stated last Friday that “the Wage and Hour Division will update its enforcement policies to align with recent case law [and] eliminate unnecessary confusion among the regulated community…”

Accordingly, the DOL rescinded a 2010 Fact Sheet and adopted the primary beneficiary test, which considers the following factors to determine whether an intern or student is, in fact, an employee under the FLSA:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

No one factor is determinative and, therefore, the inquiry of whether an intern or student is an employee under the FLSA depends upon the unique circumstances of each case.  The Labor & Employment attorneys at McNees are ready to help employers with the analysis of whether the intern or the employer is the primary beneficiary of the relationship.

The United States Supreme Court will address again whether service advisors are exempt from overtime compensation requirements of the Fair Labor Standards Act (“FLSA”).

In a case involving several procedural twists and turns, the Supreme Court, for the second time, will hear Encino Motorcars, LLC v. Navarro.  That case involves five service advisors who were employed by a California Mercedes-Benz dealership.  In 2012, the employees sued the dealership, under the FLSA, after it refused to pay them overtime compensation.  The employees alleged, among other things, that as a part of their job duties, they were required to upsell customers for additional automobile services, but were not required to actually sell cars or perform auto repairs.  They further alleged that they were only paid by commission and were “mandated” to work from 7 a.m. to 6 p.m. at least five days a week.

The FLSA requires that employers pay employees overtime compensation equal to 1 and 1/2 times their regular rate for all hours worked in excess of forty per week, unless an exemption applies.  Section 213(b) of FLSA is at issue in this case and provides that overtime compensation is not required for an employee who is a “salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles…”

A California district court dismissed the case, but the Ninth Circuit Court of Appeals reversed that decision, finding that the service advisors were eligible for overtime compensation, as they did not fall within the meaning of a “salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles.”  The Ninth Circuit rested its decision on a Department of Labor regulation, issued in April 2011, which the Supreme Court later found invalid.

In its first time reviewing the case, instead of determining the issue of whether the service advisors were qualified for the Section 213(b) exemption, the Supreme Court kicked the question back to the Ninth Circuit for reconsideration, instructing the lower court to rule without considering the Department of Labor’s regulation.  Although the Supreme Court side stepped the issue in 2016, Justice Thomas in a dissenting opinion joined by Justice Alito projected how they would resolve the issue, opining that Section 213(b) covered the employees.

After reconsideration, the Ninth Circuit again found that service advisors do not fall with Section 213(b) of the FLSA.  The Ninth Circuit’s ruling is at odds, as it acknowledged, with several other courts, including the Fourth Circuit, Fifth Circuit, and the Supreme Court of Montana.  Given this discrepancy, the Supreme Court will hear the case yet again to hopefully put this topic to rest by issuing a final resolution.

In the meantime, there is a clear ambiguity in how auto dealers should classify employees in service advisor type roles.  Until this case is resolved, auto dealers who wish to classify service advisors as exempt from overtime should consider the applicability of Section 7(i) of the FLSA.  That section provides an overtime exemption applicable to employees who are employed by a retail or service establishment and are paid primarily on a commission basis.

The federal Fair Labor Standards Act (FLSA) establishes requirements for minimum wages and overtime pay.  The FLSA’s requirements can be complex, and employers can face significant liability for unpaid wages and liquidated damages by failing to ensure compliance with its myriad requirements.

The FLSA contains a somewhat unique quirk regarding its statute of limitations.  The statute of limitations for FLSA violations is two years.  However, if the plaintiff(s) can show that the violation was willful, the statute of limitations is extended to three years.  In other words, employers who commit willful violations face a potential additional year of damages (if the unpaid wages date back at least three years before the filing of the lawsuit).

In an FLSA case filed against Lackawanna County, the Third Circuit recently clarified what constitutes a willful violation to trigger the third year of liability under the FLSA.  In Souryavong v. Lackawanna County , the County failed to aggregate the hours worked by part-time employees who worked multiple jobs for the County.  For overtime pay purposes, all hours worked by a non-exempt employee for an employer must be recorded and counted.  If the total hours worked in any workweek exceeds 40, the employee is entitled to overtime pay, regardless of whether the hours were worked in one or multiple positions for the same employer.

Thus, it was undisputed that the County violated the FLSA by failing to aggregate weekly the hours worked for these part-time employees.  It also was undisputed that the County was liable for unpaid overtime pay and liquidated damages dating back two years from the date the lawsuit was filed.  What was in dispute was whether the County’s violation was willful, which would trigger a third year of damages.

The plaintiffs claimed that the violation was willful and pointed to testimony by the County’s chief financial officer and HR director that the County had been generally aware of its FLSA obligations since 2007.  The plaintiffs also identified an e-mail from the HR director to two other County officials regarding “wage and hour issues.”

The Third Circuit rejected the plaintiff’s willfulness argument.  Specifically, the Third Circuit found that the evidence did not establish that the County was aware of the specific overtime pay issue (i.e., aggregating hours worked by part-time employees who worked multiple jobs for the County) before or at the time that the FLSA violations occurred.  General awareness of the FLSA’s existence and its general requirements is not enough to prove a willful (i.e., intentional) violation of one of its specific requirements.

There are two important takeaways from the Third Circuit’s Souryavong decision:

  • To prove a willful FLSA violation and get that third year of potential damages, employees will need to prove that the employer actually knew of the specific FLSA requirement at issue at the time of the violation and intentionally did not comply with it. General FLSA awareness is not sufficient to prove a willful violation of a specific requirements.
  • Employers should keep this decision in perspective and understand what it means and what it does not.  Even with the Third Circuit’s favorable decision, the County still was liable for two years of unpaid wages for multiple employees, an equal amount in liquidated damages, an additional $56,000 for the plaintiffs’ attorneys’ fees, and an additional undisclosed amount for its own attorneys’ fees.  FLSA violations present significant potential liability for employers, and it is in every employer’s interest to audit its pay practices and ensure compliance before a lawsuit is filed or a Department of Labor investigation begins.  While this decision confirms that it can be hard to establish a willful violation, employees need to prove only a violation of the FLSA (regardless of whether the violation was intentional) to get two years of damages plus their attorneys’ fees paid by the employer.

On August 31, 2017, Judge Amos L. Mazzant III of the U.S. District Court for the Eastern District of Texas issued an order holding that the 2016 Fair Labor Standards Act white-collar overtime exemption regulations were invalid.  In November 2016, Judge Mazzant had issued a nationwide preliminary injunction blocking the new FLSA white-collar overtime exemption regulations from taking effect on December 1, 2016.  With the order issued on August 31, 2017, Judge Mazzant formally struck down the challenged regulations, granted summary judgment for the plaintiffs, and closed the case.

As you may recall, the 2016 regulations more than doubled the minimum weekly salary requirement for most white-collar overtime exemptions from $455 to $913.  The regulations contained a number of additional provisions, the vast majority of which were not viewed favorably by employers.

In his decision, Judge Mazzant clarified that the DOL has the legal authority to create a minimum salary requirement for the white-collar overtime exemptions, but in this case exceeded that authority by more than doubling the existing minimum salary requirement.  In a separate decision also issued on August 31, 2017, Judge Mazzant denied a motion to intervene in the case filed by the Texas AFL-CIO, finding that the motion was untimely and that the DOL adequately represented whatever interests the Texas union had.

On the same day that the Court issued its order granting summary judgment and closing the case, the DOL asked the appeals court that was set to hear the appeal of the November 2016 preliminary injunction decision to hold that appeal in abeyance “pending further discussions by the parties in an attempt to narrow the dispute and potentially eliminate the need for this appeal.”  It is unclear what the next steps for the parties in this matter will be, but the events of August 31, 2017 decrease significantly the likelihood of the 2016 regulations ever taking effect.

Where are we now and where to we go from here?

A future decision by an appeals court overturning Judge Mazzant’s decision appears unlikely, primarily because the Trump Administration’s DOL likely will not pursue such an appeal and Judge Mazzant denied the Texas AFL-CIO’s motion to intervene in the case.  Thus, the requirements for the white-collar overtime exemptions remain (and should remain for the near future) what they were before the 2016 regulations, with a minimum weekly salary requirement of $455.

The Trump DOL has indicated that it intends to issue new regulations that would revisit, and likely increase, the white-collar exemptions’ minimum salary requirement.  Unless and until those regulations are issued and take effect, $455 remains the minimum weekly salary requirement, and the existing regulations, which date back to 2004, remain in effect.

On April 27, 2017, the Senate confirmed R. Alexander Acosta as the Secretary of Labor.  More than four months after President Trump took office, the U.S. Department of Labor finally had a new leader.

In the ten weeks since Secretary Acosta took office, the DOL has been very busy, with a number of important actions that directly affect employers.

  • Withdrawal of Joint Employer and Independent Contractor Interpretations. On June 7, the DOL announced that it was withdrawing its 2016 and 2015 Administrator Interpretations on joint employment and independent contractors.  With this action, the Trump Administration DOL confirmed that it would walk back from the more expansive interpretations of joint employer status and employment status in independent contractor situations adopted by the Obama DOL.  This action does not mean that employers no longer face risk from possible joint employer or independent contractor situations.  Instead, the DOL has indicated that it will return to the more traditional interpretations of these concepts used by the DOL under prior Administrations.
  • Revising the Persuader Rule. On June 12, the DOL issued a notice of proposed rulemaking to rescind and revise the enjoined so-called Persuader Rule.  The Obama-era Persuader Rule would have greatly expanded the reporting and disclosure requirements imposed on employers and consultants (including lawyers) with respect to labor relations advice and services under the Labor-Management Reporting and Disclosure Act’s “persuader activity” regulations.  The Obama-era Persuader Rule was permanently enjoined in November 2016, and it appears that the Trump DOL will be taking action to formally rescind the blocked rule and perhaps issue new regulations that could further modify existing reporting and disclosure requirements.
  • Return of Opinion Letters. On June 27, the DOL announced that its Wage and Hour Division will reinstate the practice of issuing opinion letters to provide guidance to employers and employees on the laws it enforces.  The Obama DOL had ceased issuing opinion letters in 2010, and the return of opinion letters will be welcomed by employers as a useful tool when interpreting the requirements of the Fair Labor Standards Act and other federal wage and hour laws.
  • Compliance Date Pushed Back for Electronically Submitting Injury and Illness Reports to OSHA. Also on June 27, the DOL’s OSHA announced that it was delaying the compliance date for electronic reporting of injury and illness data set forth in its May 2016 regulations from July 1, 2017 until December 1, 2017.  Under the Obama DOL, OSHA intended to use the electronic submission of this data to post injury and illness data on its website from all workplaces with 20 or more employees and for those in certain high-risk industries, making the information publicly available for unions, plaintiffs’ attorneys, and others.  In its June 27 press release, OSHA indicated that it intends to revisit and further consider the controversial rule.
  • Clarification of Position on the FLSA Overtime Exemption Regulations. On June 30, the DOL filed its Reply Brief with the Fifth Circuit Court of Appeals in the pending appeal of the preliminary injunction blocking the 2016 salary-related changes to the FLSA white-collar overtime exemption regulations from taking effect.  As we have discussed at length in this blog, the Obama-era regulations more than doubled the minimum weekly salary requirement for most white-collar overtime exemptions from $455 to $913.   In November 2016, a federal district court enjoined the regulations from taking effect on December 1, 2016, and the DOL appealed this decision.

In its Reply Brief, which was the first opportunity for the Trump DOL to state its formal position on the controversial regulations, the DOL argued that the injunction blocking the regulations should be reversed, because it was based on the legal conclusion (which the DOL still believes is erroneous) that the DOL lacks the authority to impose any minimum salary requirement as part of the exemptions’ tests.  However, the DOL asked the Fifth Circuit not to address the validity of the specific minimum weekly salary level of $913 set by the 2016 regulations, because the DOL intends to revisit the salary level through the issuance of new regulations in the future.

The DOL’s position, as set forth in its Reply Brief, raises additional questions and seemingly muddies the waters even further.  Specifically, if the Fifth Circuit ultimately agrees with the DOL’s position as stated its Reply Brief, what would be the fate of the challenged 2016 regulations and their $913 weekly salary requirement?  What would be the minimum salary required for the FLSA white-collar overtime exemptions before the DOL could issue new final regulations on the minimum salary level?  On June 27, the DOL sent a Request for Information related to the overtime rule to the Office of Management and Budget for its review, indicating that it intends to initiate the rulemaking process on this issue.  However, it will take many months, if not a year or more, for the DOL to complete the rulemaking process and issue a final rule to supersede the challenged 2016 overtime regulations.

Unfortunately, the DOL’s Reply Brief seemingly raised more questions than it answered, which is not good for employers who simply wish to know the legal requirements they must meet.  We now will await oral arguments on the appeal and a decision sometime in the future.

With a Secretary of Labor now in place, we expect the DOL to continue its recent pace of activity.  Stay tuned.

In September of 2015, two delivery drivers filed a class action lawsuit in the United States District Court for the Middle District of Pennsylvania. The employees alleged that their former employer violated the Fair Labor Standards Act by failing to pay them overtime between 2012 and 2015. The class subsequently ballooned to 474 members (and an additional 588 former and current delivery drivers remain eligible to opt into the class). The members asserted that over that three year period, the employer denied them overtime for five to ten hours per workweek, totaling over $10 million in allegedly unpaid wages.

The employer initially argued that the employees were exempt from overtime requirements. It claimed that in addition to making deliveries, as “Route Sales Professionals,” the drivers could make additional sales, fill orders, and upsell when making deliveries. Therefore, according to the employer, the drivers fell within the FLSA’s “outside sales person” exemption. The drivers maintained that sales were not part of their job duties; they were simply delivery drivers who did not fit within the outside sales exemption.

After two years of discovery, in April of this year, the parties notified the court that they had reached a settlement agreement. They asked the court to approve agreement, as is required with both FLSA claims and class actions lawsuits.

The amount: $2.5 million.

This month, the court approved the FLSA settlement. It also preliminarily granted approval of the class action settlement, subject only to a fairness hearing scheduled for September.

For our blog subscribers that have delivery drivers who also engage in incidental sales, now is the time to reevaluate how you classify those employees. In addition, this case serves as an important reminder for all employers that FLSA classifications turn on the actual job duties of the position, not the job title. In fact, a written job description will not even be controlling, unless it is an accurate reflection of the employee’s job duties.

As we previously noted, the Pennsylvania General Assembly passed a law in November that amends the Pennsylvania Banking Code to permit the use of payroll debit cards, with certain conditions.  The law brought welcome clarity to this murky issue by authorizing formally the payment of employee wages via debit card and setting forth the requirements that need to be met to do so.  We discussed these requirements in our prior post on this topic.

This law is set to take effect on May 4.  Employers who wish to consider the payroll debit card option for paying employees (or who already are doing so) should review the specifics of the law to ensure they are in compliance when this law takes effect.

For much of 2016, employers and HR professionals were focused on preparing for the new Fair Labor Standards Act white-collar overtime exemption regulations.  The Department of Labor issued the final regulations on May 18, 2016, with an effective date of December 1, 2016.

As you may remember, the new regulations more than doubled the minimum weekly salary requirement for most white-collar overtime exemptions from $455 to $913.  The new regulations contained a number of additional provisions, the vast majority of which were not viewed favorably by employers.

And then, right before Thanksgiving, everything came to a screeching halt.  A federal district court issued on November 22, 2016, a nationwide preliminary injunction blocking the new FLSA white-collar overtime exemption regulations from taking effect on December 1.  Few anticipated the issuance of an injunction blocking the regulations, much less one a mere eight days before the regulations were set to take effect.  Happy Thanksgiving, indeed.

You may have noticed that we have not provided an update on this issue on this blog since the issuance of the injunction in November 2016.  That is because, frankly, not much of note has happened, either in the litigation in which the injunction was issued or regarding the issue in general.

As expected, the Department of Labor filed an appeal of the preliminary injunction on December 1, 2016.  The DOL initially sought to fast-track the appeal, asking the Fifth Circuit Court of Appeals for an expedited briefing schedule.  The motivation for this strategy was obvious.  The DOL’s leadership was set to change with the inauguration of Donald Trump in January, and the best hope for the new regulations was to have the injunction overturned before this change in leadership could affect the DOL’s litigation strategy.

The DOL’s strategy initially was successful, with the Fifth Circuit agreeing to an expedited briefing schedule, with all briefs regarding the appeal set to be filed by February 7, 2017.  However, on January 25, 2017 (i.e., shortly after the Trump administration took office), the DOL asked the Fifth Circuit for an extension of time to file its reply brief “to allow incoming leadership personnel adequate time to consider the issues.”  The Fifth Circuit ultimately agreed to extend the deadline for the DOL to file its reply brief until May 1, 2017.

Meanwhile, the federal district court that issued the preliminary injunction in November is still considering a summary judgment motion that could result in a final order being entered in that case.  Also, a motion filed by the Texas AFL-CIO in December 2016 to intervene as another defendant in the case also remains pending before that court.  The AFL-CIO sought to intervene because of its fear that the DOL’s new leadership will decide to cease defending the challenged regulations.

Time is not on the side of the currently enjoined FLSA overtime exemption regulations.  As the appeal of the injunction drags on into the spring, the likelihood of the Trump administration DOL withdrawing the appeal and abandoning the fight to defend the regulations grows.  If it does so, the injunction likely will become permanent, placing the final nail in the coffin of the controversial regulations.

So, as we have been saying for months, stay tuned.

In a surprising 11th-hour move, late Tuesday, November 22, 2016, a Texas federal court issued a nationwide preliminary injunction blocking the U.S. Department of Labor’s new Fair Labor Standards Act “white-collar” overtime exemption regulations from taking effect on December 1, 2016.

U.S. District Judge Amos Mazzant, who was appointed to the federal bench in 2014 by President Obama, issued the injunction stopping the DOL from implementing the new regulations.  In a case brought by 21 states against the DOL, Judge Mazzant found that the DOL acted without statutory authority when it issued regulations more than doubling the current minimum salary requirement and providing for automatic updates of the minimum salary amount every three years.

At the very least, the injunction will put on hold the effective date of the new regulations, which had been December 1.  This means that the existing FLSA regulations, with the minimum weekly salary requirement of $455, will remain the law of the land come December 1.

Employers now face considerable uncertainty.  Many employers already have made changes to employees’ salaries and overtime exempt statuses in anticipation of the new regulations taking effect next week.  Other employers have sent communications to employees announcing changes that will take effect next week, all in response to the new regulations.

However, the fate of the new regulations is now in serious doubt.  The Trump Administration is set to assume control of the White House in January.  While yesterday’s decision likely will be appealed by the DOL, it is not clear whether and to what extent the Trump DOL will pursue the appeal and continue to defend the regulations’ validity in court.

As a result of yesterday’s injunction, it now appears that the new regulations will not take effect on December 1.  What lies ahead for the regulations is less clear, creating frustrating uncertainty for employers and employees alike.

We have been following litigation in Pennsylvania challenging the use of payroll debit cards by employers to pay employees. In one such case, the Pennsylvania Superior Court recently ruled that an employer violated the Pennsylvania Wage Payment and Collection Law (WPCL) by requiring employees to accept their wages on a payroll debit card, rather than in cash or by check.

The Pennsylvania General Assembly has stepped in to modernize the law and bring some welcome clarity to this issue. On November 4, 2016, Governor Tom Wolf signed into law Act 161, which amends the Pennsylvania Banking Code to expressly permit the use of payroll debit cards, with certain conditions.  These conditions include the following:

  • Payment of wages by payroll debit cards must be optional for the employee, and the employer cannot mandate such use to receive wages;
  • The employer must comply with various notice and authorization requirements;
  • The card must allow one free withdrawal of wages each pay period and one in-network ATM withdrawal at least weekly;
  • The employee must have the ability to check the card’s balance electronically or via telephone without cost to the employee; and
  • There must be no fees associated with various actions associated with the card, including the issuance of the initial card and one replacement card per calendar year, the transfer of wages to the card itself, and for non-use of the card for a period of less than 12 months.

The Act makes clear that it supercedes any inconsistent provision in any other statute, rule, or regulation, confirming that payment of wages with a payroll debit card in compliance with the Act’s requirements will comply with the WPCL. The Act will take effect in 180 days of its enactment on November 4.

For employers who wish to use payroll debit cards to pay wages, Act 161 provides a blueprint for how to do so in a manner that complies with Pennsylvania law. These requirements are somewhat complicated, however, and should be followed closely. Also, Act 161 confirms that use of payroll debit cards in a manner inconsistent with its requirements will violate Pennsylvania law. Employers who wish to use this new technology to pay employees should keep these points in mind to avoid future legal trouble.