Posts tagged Department of Labor.
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The Department of Labor's (DOL) May 16, 2024 guidance, Artificial Intelligence and Worker Well-Being: Principles for Developers and Employers, published in response to the mandates of Executive Order 14110 (EO 14110) (Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence), weighs the benefits and risks of an AI-augmented workplace and establishes Principles to follow that endeavor to ensure the responsible and transparent use of AI. The DOL’s publication of these Principles follows in the footsteps of the EEOC and the OFCCP’s recent guidance on AI in the workplace and mirrors, in significant respects, the letter and spirit of their pronouncements. 

While not “exhaustive,” the Principles” should be considered during the whole lifecycle of AI” from ”design to development, testing, training, deployment and use, oversight, and auditing.”  Although the DOL intends the Principles to apply to all business sectors, the guidance notes that not all Principles will apply to the same extent in every industry or workplace, and thus should be reviewed and customized based on organizational context and input from workers.

While not defined in the Principles, EO 14110 defines artificial intelligence as set forth in 15 U.S.C. 9401(3): “A machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations, or decisions influencing real or virtual environments.  Artificial intelligence systems use machine- and human-based inputs to perceive real and virtual environments; abstract such perceptions into models through analysis in an automated manner; and use model inference to formulate options for information or action.” 

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In response to President Biden’s Executive Order 14110 calling for a coordinated U.S. government approach to ensuring the responsible and safe development and use of AI, the U.S. Department of Labor Wage and Hour Division (WHD) issued Field Assistance Bulletin No. 2024-1 (the “Bulletin”). This Bulletin, published on April 29, 2024, provides guidance on the application of the Fair Labor Standards Act (FLSA) and other federal labor standards in the context of increasing use of artificial intelligence (AI) and automated systems in the workplace.

Importantly, reinforcing the DOL’s position expressed in the Joint Statement on Enforcement of Civil Rights, Fair Competition, Consumer Protection, and Equal Opportunity Laws in Automated Systems, the WHD confirms that the historical federal laws enforced by the WHD will continue to apply to new technological innovations, such as workplace AI.  The WHD also notes that, although AI and automated systems may streamline tasks for employers, improve workplace efficiency and safety, and enhance workforce accountability, implementation of such tools without responsible human oversight may pose potential compliance challenges.

The Bulletin discusses multiple ways in which AI interacts with the Fair Labor Standards Act (“FLSA”), the Family and Medical Leave Act (“FMLA”), the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”), and the Employee Polygraph Protection Act (“EPPA”). The Bulletin makes the following pronouncements regarding the potential compliance issues that may arise due to the use of AI to perform wage-and-hour tasks:

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As employers throughout New York State are now determining how to comply with the newest State-wide pay transparency law, which took effect on September 17, 2023, the New York State Department of Labor (DOL) released proposed regulations to facilitate the legislative goal of increasing pay transparency. As discussed in depth here and here, the law requires employers to disclose the pay range and job description (if existing) in job postings. Should these proposed regulations pass the 60-day comment period unchanged, there are several highlights worth ...

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After releasing an initial two-page “fact sheet,” Congress publicly posted the bill text of the No Robot Bosses Act (the “Proposed Act”), detailing proposed federal guardrails for use of automated decision-making systems in the employment context. Robert Casey (D-PA), Brian Schatz (D-HI), John Fetterman (D-PA), and Bernie Sanders (I-VT) currently cosponsor the Proposed Act.

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The New York HERO Act website was quietly updated on the afternoon of March 18, 2022 to confirm that the designation of COVID-19 as an airborne infectious disease that presents a serious risk of harm to the public health has ended. This means the “activation” of HERO Act safety plans is over.

On March 17, 2022, the designation of COVID-19 as an airborne infectious disease that presents a serious risk of harm to the public health under the HERO Act ended. Private sector employers are no longer required to implement their workforce safety plans.

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President Biden’s $6 trillion 2022 budget proposal focuses on worker protections—including the American Jobs Plan and the American Families Plan. Both of these plans contain labor and numerous employment initiatives. The budget proposes increased funding for the Department of Labor (“DOL”), the Equal Employment Opportunity Commission (“EEOC”), and the National Labor Relations Board (“NLRB” or “Board”).

The 2022 budget calls for $2.1 billion, an increase of $304 million, in DOL’s worker protection agencies. Over the past four years, those agencies ...

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As part of the American Rescue Plan Act of 2021 ("ARPA"), signed into law on March 11, 2021, employers will be required to provide, on a tax-free basis, a subsidy to employees and their qualified beneficiaries to pay 100% of the COBRA continuation premium for group health plan coverage. This subsidy applies only to “assistance eligible individuals,” who are eligible for COBRA as a result of an involuntary termination of employment or a reduction in hours and who are, or could have been, eligible for COBRA during the period of April 1, 2021 through September 30, 2021 (the "Subsidy ...

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As featured in #WorkforceWednesday:  President-Elect Biden has chosen Marty Walsh to serve as Labor Secretary in his administration. Walsh is Boston’s mayor and a former top union leader. Attorney David Garland tells us more.

Video: YouTubeVimeoInstagram.

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On October 30, 2020, the Department of Labor (DOL) adopted the Final Rule amending the Investment Duties DOL Regulation, §2550.404a-1, which governs the obligations of ERISA fiduciaries when selecting investments for ERISA plans.  The Final Rule made several changes to the June 2020 Proposed Rule, which proposed to define the duties of fiduciaries when considering investments that promote environmental, social, and corporate governance goals (ESG investments).  As reported here, DOL received extensive and largely negative comments to the Proposed Rule and most of the ...

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Rules relating to tip credit and pooling have resulted in a significant amount litigation in the hospitality industry, and, in many cases, substantial liability or settlements. Yesterday, the U.S. Department of Labor (“DOL”) announced its new final rule that revises current regulations pertaining to tipped employees. The final rule specifically addresses tipped occupations that qualify for application of a tip credit, as well as permissible and impermissible tip pooling practices.

Allowance of Tip Credit for Tasks Related to Tip-Producing Occupations

The final rule ...

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The first legal challenge to Executive Order 13950 (the “Order”) has been made. On October 29, 2020, the NAACP, representing the National Urban League, and the National Fair Housing Alliance, filed a civil rights class action lawsuit in the United States District Court for the District of Columbia (Case No. 1:20-cv-03121), requesting injunctive and declaratory relief against the President of the United States, the U.S. Secretary of Labor and the U.S. Department of Labor. Specifically, the lawsuit seeks for the Court to strike down the Order, declaring it unlawful and invalid ...

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Prompted by the many new telework or remote work arrangements that have arisen in response to COVID-19, on August 24, 2020, the Wage and Hour Division of the U.S. Department of Labor (“DOL”) issued Field Assistance Bulletin No. 2020-5 (“Bulletin”) to provide guidance regarding employers’ obligation “to exercise reasonable diligence in tracking teleworking employees’ hours of work.” The guidance, which includes citations to the Fair Labor Standards Act (“FLSA”), the DOL’s interpretive regulations, and federal case law, does not break new ground; ...

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On May 28, 2019, Connecticut Governor Ned Lamont signed Public Act 19-4, An Act Increasing the Minimum Fair Wage (the “Act”), which gradually increases the minimum wage in Connecticut over the next several years.  The first increase took place on October 1, 2019, when the minimum wage increased to $11.00 per hour. The next increase will take effect on September 1, 2020, when Connecticut’s minimum wage will increase to $12.00 per hour.

Additional increases will take place on an annual basis:

  • $13.00 per hour on August 1, 2021
  • $14.00 per hour on July 1, 2022
  • $15.00 per hour on June 1 ...
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While much attention is currently focused on whether Congress will extend, in whole or in part, the emergency $600 increase in unemployment insurance benefits (“UI”) that, until July 31, 2020, had been provided by the CARES Act (“Act”), the U.S. Department of Labor (“DOL”) is continuing to address questions about the other expansions of UI benefits under the Act, most recently, in an advisory letter issued on July 21, 2020 by the DOL’s Employment and Training Administration office (“ETA”). Of particular note, the latest ETA advisory letter instructs that an ...

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As featured in #WorkforceWednesday: California provides a detailed COVID-19 employer playbook, and a federal judge vacated parts of the Department of Labor’s Families First Coronavirus Response Act rule.

 Video: YouTubeVimeoMP4Instagram.

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Employers that are fiduciaries of participant-directed individual account plans (such as 401(k) plans) subject to the Employee Retirement Income Security Act of 1974, as amended (‘Plans” and “ERISA”, respectively) should be pleased with the position taken by the Department of Labor (“DOL”) in an information letter dated June 3, 2020 (the “Letter”) addressing the use of private equity investments in designated investment alternatives offered in Plans.  The DOL states that, subject to the standards and considerations set forth in the Letter (and summarized ...

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On July 20, 2020, the Wage and Hour Division (“WHD”) of the U.S. Department of Labor (“DOL”) published new guidance for businesses reopening amid the COVID-19 pandemic. The guidance is in the form of additions to the WHD’s existing Frequently Asked Questions (“FAQs” or “Guidance”) and addresses issues arising under two leave laws—the Family and Medical Leave Act (“FMLA”), and the Families First Coronavirus Response Act (“FFCRA”)—and wage and hour matters governed by the Fair Labor Standards Act (“FLSA”).

New FMLA FAQs

The WHD added the ...

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The economic downturn caused by COVID-19 pandemic has resulted in an unprecedented number of layoffs, furloughs, and reduced hoursUnder the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), when employment is terminated or hours are reduced and there is a loss of coverage, employers (generally those with 20 or more employees) must provide notices to covered employees and their covered spouses and dependent children explaining that they have the right to elect to continue receive health care coverage. In addition, when a covered employee dies, COBRA requires ...

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The COVID-19 pandemic and the efforts to limit its spread caused a sudden and dramatic shutdown of large sections of the U.S. economy.  Governmental shelter in place orders requiring non-essential businesses to temporarily close forced untold numbers of businesses to furlough or terminate most, and in many cases all, of their employees with little or no warning. For larger employers, mass layoffs and terminations of operations such as these, would normally trigger notification requirements under the federal Worker Adjustment and Retraining Notification (“WARN”) Act (as ...

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The U.S. Department of Labor (DOL) recently published three Unemployment Insurance Program Letters (UIPLs) offering guidance on the administration of separate sections of the Coronavirus Aid, Relief, and Economic Security Act, or the “CARES Act,” that provide for expanded unemployment insurance benefits. While the UIPLs are directed to state agencies, the UIPLs contain helpful information for employers.

UIPL 15-20

UIPL 15-20 provides guidance on the administration of section 2104 of the CARES Act, which authorizes Federal Pandemic Unemployment Compensation (FPUC ...

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On April 14, 2020, exactly two weeks after the Families First Coronavirus Response Act (“FFCRA” or “Act”), went into effect and the U.S. Department of Labor (“DOL”) issued a temporary rule (“Rule”) interpreting the paid sick leave and emergency family and medical leave provisions of the Act, the Attorney General for the State of New York, Letitia James (“AG”), filed a legal challenge to that Rule. [1] In the lawsuit against the DOL, the AG alleges that various provisions of the Rule violate both the statutory language and the intent of the FFCRA.

As we previously ...

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The U.S. Department of Labor (“DOL”) continues to update its compliance assistance for the Families First Coronavirus Response Act (“FFCRA”), in the form of “Questions and Answers.”  The DOL posted a temporary rule issuing regulations pursuant to the FFCRA on April 1, 2020; while we are digesting the temporary rule and preparing a forthcoming advisory, we wanted to highlight some of the important insights of the updated FAQs. The DOL published its initial guidance on March 24, 2020, summarized in a previous post, covering the FFCRA’s paid sick and paid family leave ...

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Rules relating to tip credit and pooling have resulted in significant debate among legislators, regulators, and the courts, leading to confusion, further litigation, and, in many cases, substantial liability or settlements involving employers that operate in the hospitality industry.  Today, the U.S. Department of Labor (“DOL”) published proposed rulemaking that aims to bring greater clarity to the morass of tip-related legislation, as well as previous agency rules and interpretations.  I describe below some of the notable elements of these proposed rules.

The proposed ...

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In the first meaningful revision of its joint employer regulations in over 60 years, on Monday, April 1, 2019 the Department of Labor ("DOL") proposed a new rule establishing a four-part test to determine whether a person or company will be deemed to be the joint employer of persons employed by another employer. Joint employer status confers joint and several liability with the primary employer and any other joint employers for all wages due to the employee under the Fair Labor Standards Act ("FLSA"), and it’s often a point of dispute when an employee lodges claims for unpaid wages or ...

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Our colleague Sharon L. Lippett at Epstein Becker Green has a post on the Health Employment and Labor Blog that will be of interest to our readers in the retail industry: “A Reminder from the DOL: Document a Plan’s Procedures for Designating Authorized Representatives.”

Following is an excerpt:

While the Information Letter does not directly respond to the query from counsel to the Entity, the DOL’s response indicates that the Entity could be an authorized representative. The DOL states that, although a plan may establish reasonable procedures for determining ...

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On March 1, 2019, the New York State Department of Labor (NYSDOL) announced that it is no longer pursuing predictive scheduling regulations (or “call-in pay”) that would have affected most employers in the state. For the time being, New York employers do not have to worry about pending statewide regulations regarding call-in pay. Keep in mind, however, that New York City employers are still subject to the Fair Workweek Law.

The proposed NYSDOL regulations would have required employers provide “call-in pay” ranging from two to four hours at the minimum wage in these ...

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The New York State Department of Labor (“DOL”) recently issued proposed statewide regulations that would require employers to pay employees “call-in pay” when employers use “on call” scheduling or change employees’ work shifts on short notice. This is not the DOL’s first foray into this area – in November 2017, the DOL released similar proposed regulations but ultimately declined to adopt them. The DOL’s new set of proposed regulations would apply to the vast majority of employers operating in New York, but are of particular interest to New York City retail ...

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The expiration date for the U.S. Department of Labor’s (“DOL”) model Family and Medical Leave Act (“FMLA”) notice and medical certification forms has once again been extended. The new expiration date is now August 31, 2018. Expiration dates are located at the top right corner of the model FMLA forms.

The DOL’s model FMLA notices and certification forms were originally due to expire on May 31, 2018, then again on June 30, 2018, and the DOL has again pushed the expiration date, now to the end of August, from the July 31, 2018 expiration date. Once approved by the Federal Office of ...

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The U.S. Department of Labor’s (“DOL”) model Family and Medical Leave Act (“FMLA”) notices and medical certification forms expire on July 31, 2018. However, the new model forms have not yet been released. The current FMLA forms were originally due to expire on May 31, 2018, but the expiration date was first extended to June 30, 2018 and then to July 31, 2018.

Every three years, the DOL must obtain approval for continued use of its forms from the Federal Office of Management and Budget (“OMB”). Once the OMB approves the new model FMLA forms, they will be valid through 2021 ...

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Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the retail industry: “OSHA Withdraws 'Fairfax Memo' – Union Representatives May No Longer Participate in Work Place Safety Walkarounds at Non-Union Facilities.”

Following is an excerpt:

On April 25, 2017, Dorothy Dougherty, Deputy Assistant Secretary of the Occupational Safety and Health Administration (“OSHA”) and Thomas Galassi, Director of OSHA’s Directorate of Enforcement Programs, issued a ...

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A United States District Court in Texas has refused to dismiss a law suit challenging OSHA’s practice of allowing union representatives and organizers to serve as “employee representatives” in inspections of non-union worksites. If the Court ultimately sustains the plaintiff’s claims, unions will lose another often valuable organizing tool that has provided them with visibility and access to employees in connection with organizing campaigns.

The National Federation of Independent Business (‘NFIB”) filed suit to challenge an OSHA Standard Interpretation ...

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Based on recent guidance from the Department of Labor (the “DOL”), many sponsors of employee benefit plans subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA Plans”) should have additional comfort regarding the impact of the conflict of interest rule released by the DOL in April 2016 (the “Rule”) on their plans. Even though it is widely expected that the Trump administration will delay implementation of the Rule, in mid-January 2017, the DOL released its “Conflict of Interest FAQs (Part II – Rule)”, which addresses topics relevant ...

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Our colleague Sharon L. Lippett, a Member of the Firm at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our readers in the technology industry: “New DOL FAQs Provide Additional Guidance (and Comfort) for Plan Sponsors.”

Following is an excerpt:

Based on recent guidance from the Department of Labor (the “DOL”), many sponsors of employee benefit plans subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA Plans”) should have additional comfort regarding the impact of the ...

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Our colleague Sharon L. Lippett, a Member of the Firm at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our readers in the retail industry: “New DOL FAQs Provide Additional Guidance (and Comfort) for Plan Sponsors.”

Following is an excerpt:

Based on recent guidance from the Department of Labor (the “DOL”), many sponsors of employee benefit plans subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA Plans”) should have additional comfort regarding the impact of the conflict of ...

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Our colleague Michael S. Kun, national Chairperson of the Wage and Hour practice group at Epstein Becker Green, has a post on the Wage & Hour Defense Blog that will be of interest to many of our readers in the technology industry: “Stop! Texas Federal Court Enjoins New FLSA Overtime Rules."

Following is an excerpt:

The injunction could leave employers in a state of limbo for weeks, months and perhaps longer as injunctions often do not resolve cases and, instead, lead to lengthy appeals. Here, though, the injunction could spell the quick death to the new rules should the Department ...

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Our colleague Michael S. Kun, national Chairperson of the Wage and Hour practice group at Epstein Becker Green, has a post on the Wage & Hour Defense Blog that will be of interest to many of our readers in the financial services industry: “Stop! Texas Federal Court Enjoins New FLSA Overtime Rules."

Following is an excerpt:

The injunction could leave employers in a state of limbo for weeks, months and perhaps longer as injunctions often do not resolve cases and, instead, lead to lengthy appeals. Here, though, the injunction could spell the quick death to the new rules should the ...

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Our colleague Michael S. Kun, national Chairperson of the Wage and Hour practice group at Epstein Becker Green, has a post on the Wage & Hour Defense Blog that will be of interest to many of our readers in the hospitality industry: “Stop! Texas Federal Court Enjoins New FLSA Overtime Rules."

Following is an excerpt:

The injunction could leave employers in a state of limbo for weeks, months and perhaps longer as injunctions often do not resolve cases and, instead, lead to lengthy appeals. Here, though, the injunction could spell the quick death to the new rules should the Department ...

Blogs
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Our colleague Michael S. Kun, national Chairperson of the Wage and Hour practice group at Epstein Becker Green, has a post on the Wage & Hour Defense Blog that will be of interest to many of our readers in the retail industry: “Stop! Texas Federal Court Enjoins New FLSA Overtime Rules."

Following is an excerpt:

The injunction could leave employers in a state of limbo for weeks, months and perhaps longer as injunctions often do not resolve cases and, instead, lead to lengthy appeals. Here, though, the injunction could spell the quick death to the new rules should the Department choose ...

Blogs
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The Fair Labor Standards Act (“FLSA”) permits employers to use “tip credits” to satisfy minimum wage obligations to tipped employees.  Some employers use those “tip credits” to satisfy the minimum wage obligations; some do not.  (And in some states, like California, they cannot do so without running afoul of state minimum wage laws.)

Many hospitality employers use “tip pools” to divide customer tips among staff.  Those “tip pools” normally provide for tips to be divided among “front of the house” employees who are involved in serving customers – servers ...

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Employers in the technology, media and telecommunications industry are faced with many workplace management and legal compliance challenges.  Among these are trends in the shared economy and rise of the contingent workforce, data privacy and security, and use of social media in connection with recruitment, employee monitoring and termination.  At the recent  Epstein Becker Green 34th Annual Workforce Management Briefing held at the New York Hilton, members of the firm’s TMT Group including the authors of this post, along with in-house counsel speakers Rebecca Clar of AOL and ...

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Kara Maciel, a Member of the Firm in the Labor and Employment, Litigation, and Health Care and Life Sciences practices, in the Washington, DC, office, was quoted in an article titled “For Fine Dining Sector, Tip Pools Can Be Legal Trap.” (Read the full version – subscription required.)

Following is an excerpt:

As a wave of lawsuits hits restaurants over tip pool violations, fine dining establishments packed with sommeliers, mixologists and other high-end specialists that tend to take on some managerial duties face the greatest risks of becoming targets for litigation or ...

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 By Aaron Olsen

President Obama’s announcement last week that he was ordering the Labor Department to revise the regulations concerning who can be classified as “executive or professional” employees has created a buzz about what this will mean for both employers and employees.  The fact that the President specifically identified concerns about managers in the fast-food industry suggests that the Department of Labor will be looking for ways to change how employees in the hospitality industry are classified. 

However, there have been very few details about what any of this will ...

Blogs
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By Jordan B. Schwartz

Virtually all hospitality employers are aware that pursuant to the Fair Labor Standards Act (“FLSA”), they are required to compensate employees for all hours worked. What is not as clear, however, is whether the time an employee spends at training programs, lectures, meetings, and other similar activities should be considered hours worked. As a result, our clients in the hospitality industry often ask whether they are required to compensate employees for time spent in such training activities. 

The short answer to this question is that an employee’s ...

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Our colleagues have issued a new client advisory: “New York State Department of Labor Adopts Wage Deduction Regulations,” by William J. Milani, Dean L. Silverberg, Jeffrey M. Landes, Susan Gross Sholinsky, Anna A. Cohen, and Jennifer A. Goldman.

Following is an excerpt:

The New York State Department of Labor (“DOL”) has adopted wage deduction regulations (“Final Regulations”) pertaining to the expanded categories of permissible wage deductions in the New York Labor Law, effective October 9, 2013.  As we previously reported (see the Act Now Advisory entitled “New ...

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The OSHA Law Update blog has an update on the government shutdown: “OSHA Shutdown – Government Shutdown Strips OSHA to a Skeleton Crew,” by Casey Cosentino and Eric Conn of Epstein Becker Green.

Following is an excerpt:

The federal government shut down all but essential operations on October 1, 2013, after Congress failed to reach an agreement on a budget or a continuing resolution for funding government operations. As a result, OSHA (like most federal agencies) has furloughed more than 90% of its personnel and suspended most of its operations.

Read the full post here.

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The OSHA Law Update blog has an update on the government shutdown: “OSHA Shutdown – Government Shutdown Strips OSHA to a Skeleton Crew,” by Casey Cosentino and Eric Conn of Epstein Becker Green.

Following is an excerpt:

The federal government shut down all but essential operations on October 1, 2013, after Congress failed to reach an agreement on a budget or a continuing resolution for funding government operations. As a result, OSHA (like most federal agencies) has furloughed more than 90% of its personnel and suspended most of its operations.

Read the full post here.

Blogs
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By Casey M. Cosentino and Eric J. Conn

The federal government shut down all but essential operations on October 1, 2013, after Congress failed to reach an agreement on a budget or a continuing resolution for funding government operations.  As a result, OSHA (like most federal agencies) has furloughed more than 90% of its personnel and suspended most of its operations.

On September 10, 2013, with the government shutdown looming, the Assistant Secretary of Labor for OSHA, David Michaels, issued a memorandum outlining OSHA's  “Contingency Plan for Suspension of Agency Operations ...

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By Jordan B. Schwartz and Eric J. Conn

On March 18, 2013, President Obama nominated Thomas E. Perez, a Harvard Law School graduate and current federal prosecutor with a long track record of defending civil rights and vulnerable workers, to become the next U.S. Secretary of Labor.  Perez would replace Seth Harris, the Acting Secretary of Labor and former Deputy Secretary of Labor, who has been filling the role since Secretary Hilda Solis resigned from the post in January.

Thomas Perez’s Background 

Since October 2009, Perez has served as the Assistant Attorney General for the Civil Rights Division at the U.S. Department of Justice.  From 2006 to 2009, Perez served as Maryland’s Secretary of Labor.  In that capacity, he led efforts to target Maryland companies who were engaging in workplace fraud by imposing new restrictions on employees who had been misclassified as independent contractors.  Perez’s efforts led to the implementation of Maryland’s Workplace Fraud Act of 2009, with him stating that the Act would “ensure that employers who attempt to cheat the system, their workers, and their competitors, will pay a steep price for their actions.”

During his tenure as Maryland’s Secretary of Labor, where his jurisdiction included Maryland’s Occupational Safety and Health Division, Perez distinguished himself as a strong and vocal defender of safety protections for Maryland workers.  According to Fred Mason, the president of the Maryland State and District of Columbia AFL-CIO, Perez fought to increase funding for the state occupational safety and health plan, which had been underfunded under Governor Robert Ehrlich.  Specifically, Mason stated that “that department went for a couple years with essentially no money to hire people to enforce laws that were already on the books.”  After Perez took office, “we began to make a comeback of sorts, in terms of having the necessary workers to do the inspections.”  Similarly, Peg Seminario, safety and health director at AFL-CIO, said she considered Perez “an excellent choice” to head the Labor Department.

The Nomination of Thomas Perez 

At a time when the President has promised to create more jobs and overhaul immigration policy, Mr. Obama has presented Mr. Perez, who would be the only Hispanic in the cabinet, as an American immigration success story, whose own history would help him tackle important current controversial issues.  At the White House on March 18, Obama called Perez a “consensus builder” who “understands that our economy works best when the middle class and those working to get into the middle class have the security they need on the job, a democratic voice in the workplace, everybody playing by the same set of rules.”  At the same press conference, Perez stated that:

“as you well know, our nation still faces critical economic challenges, and the department’s mission is as important as ever. . . . I am confident that together with our partners in organized labor, the business community, grass-roots communities, Republicans, Democrats, and independents alike, we can keep making progress for all working families.”

Not surprisingly, this nomination has drawn praise from worker advocates, and most Democrats have expressed a great deal of enthusiasm for this nomination.  Senator Patrick Leahy said in a statement that as a former Secretary of Labor in Maryland “and a fierce defender of workers’ rights and civil rights, [Perez] is uniquely situated to serve in this important post at a critical time when Congress will be considering issues like immigration reform, reducing unemployment, and continuing our economic recovery.”

Congressional Republicans, however, have indicated a potentially rocky confirmation process and voiced their concern that Perez is the “wrong man for this job.”  In particular, Senator Jeff Sessions (R-Ala.) has stated that “this is an unfortunate and needlessly divisive nomination” as “Mr. Perez has aggressively sought ways to allow the hiring of more illegal workers.”  Additionally, Representative John Kline (R-MN), chairman of the Education and the Workforce Committee and thus a key house Republican on worker safety issues, has stated that “our country needs a labor secretary who will put America’s jobs before his own” and cited “troubling allegations in the media and an independent investigation” about Perez.

The Confirmation Hearing 

During the April 18, 2013 confirmation hearing, Mr. Perez stated that he would seek a balance of protecting worker safety while also encouraging economic growth.  Specifically, Mr. Perez told the Senate, Health, Education, Labor and Pensions Committee that “job safety and job growth are not mutually exclusive” and thus “it is not necessary to choose between one and the other.”  When asked what his top priority would be as labor secretary, he responded “jobs, jobs, jobs.”  He also testified that other priorities would be reauthorizing the Workplace Investment Act with bipartisan support, pension security, enforcement of wage and hour laws, job safety and equal opportunity in the workplace.

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Epstein Becker Green is pleased to announce the availability of a Wage and Hour Division Investigation Checklist, which provides hospitality employers with valuable information about wage and hour investigations and audits conducted by the U.S. Department of Labor (DOL). Like EBG’s first-of-its kind Wage and Hour App, which provides detailed information about federal and state laws, the Checklist is a free resource offered by EBG.

The Checklist provides step-by-step guidance on the following issues: preparation before a Wage and Hour Division investigation of the DOL; ...

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The Occupational Safety and Health Administration (“OSHA”) announced on March 1, 2012 that its Office of the Whistleblower Protection Program (“WPP”) will now report directly to the Department of Labor’s Office of the Assistant Secretary, rather than to its Directorate of Enforcement Programs. The restructuring signals an elevated priority placed on enforcement of the whistleblower protection laws falling under OSHA’s jurisdiction, and suggests that the Agency intends to devote increased efforts and resources to this area in the future.

WPP Had Not Been Sufficiently Meeting Its Mission to Protect and Incentivize Whistleblowers

OSHA’s WPP is responsible for enforcing the various whistleblower protection provisions of twenty-one separate federal statutes. These include such laws as the Occupational Safety and Health Act, Sarbanes-Oxley, and the Affordable Care Act, and they offer protections to employees who bring to light violations of a wide variety of laws, including airline safety, environmental remediation, food safety, public transportation and railroad, maritime and securities laws. While some differences exist between the details of the particular statutes, in general they prohibit an employer from terminating or otherwise discriminating or retaliating against an employee who reports or provides information regarding a suspected violation of the law, either to internal audit personnel or to the government. The statutes vest OSHA with jurisdiction to investigate complaints of retaliation against whistleblowers, and to award appropriate relief which frequently includes reinstatement, attorneys’ fees and costs, compensatory damages, and in some cases even punitive damages.

A pair of Government Accountability Office audits in 2009 and 2010 had identified substantial problems with the WPP. In particular, an August 2010 GAO Report No. 10-722, titled “Whistleblower Protection: Sustained Management Attention Needed to Address Long-Standing Program Weaknesses,” found that “OSHA has done little to ensure that investigators have the necessary training and equipment to do their jobs, and that it lacks sufficient internal controls to ensure that the whistleblower program operates as intended.”

Blogs
Clock 4 minute read

By Michael Kun

Last week, the U.S. Department of Labor’s Wage and Hour Division and the California Secretary of Labor announced that they were teaming up to crack down on employers who classify workers as independent contractors. 

The announcement that the two groups would work together on such an initiative should not come as much of a surprise to employers.  Shortly after Hilda Solis took office as the U.S. Secretary of Labor, the Wage and Hour Division announced that it would be focusing on this issue.  And California has enacted a new statute that provides additional penalties in ...

Blogs
Clock 2 minute read

By: Dean R. Singewald II

A recent settlement with the Department of Labor’s Office of Federal Contract Compliance Programs (the “OFCCP”) has once again made clear that, if an employer is a federal government supply and service contractor or subcontractor subject to the affirmative action/non-discrimination obligations imposed by Executive Order 11246, including the obligation to develop and maintain a written affirmative action program, it is imperative that the employer properly track its applicants and hires.

Such tracking should include documenting the gender and ...

Blogs
Clock 3 minute read

By:  Kara M. Maciel

The Department of Labor’s Wage and Hour Division in Norfolk, Virginia has announced that it will be stepping up its compliance audits and enforcement efforts against area hotels. In the past few years, the DOL stated it found violations at about 60% of local hotels. According to the DOL, the agency recently made spot checks at 10 area hotels since April. This is just one part of the agency’s nationwide enforcement program and its “Plan/Prevent/Protect” initiative against the hospitality industry. Common violations assessed by the DOL include:

·         ...

Blogs
Clock 7 minute read

By:  Robert S. Groban, Jr.

U.S. Department of Labor Issues Proposed Rule on H-2B Wage Rates

On October 4, 2010, the Employment and Training Administration, U.S. Department of

Labor (“DOL”), issued a proposed rule that would require employers to pay H-2B and

American workers recruited in connection with an H-2B job application a “wage that meets

or exceeds the highest of: the prevailing wage, the federal minimum wage, the state minimum

wage or the local minimum wage.” The proposed rule was published on October 5, 2010, in

the Federal Register. Interested parties have 30 days to ...

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