US DOL OT Rule Invalidated
After the publication of Friday’s Legal Alert, a Federal judge in Texas invalided the US DOL overtime rule that went into effect back in July and for which the salary threshold was set to increase in January.
"As was true of the 2016 rule, the minimum salary level imposed by the 2024 rule 'effectively eliminates' consideration of whether an employee performs 'bona fide executive, administrative, or professional capacity' (“EAP”) duties in favor of what amounts to a salary-only test," Judge Jordan said.
In reaching his conclusion, Judge Jordan relied on the Fifth Circuit's September ruling in Mayfield et al. v. U.S. Department of Labor et al.: another case that had challenged the department's rule.
In that case, the court sided with the DOL, ruling that — although with "limits" — the department had the authority to "define and delimit" the EAP exemption, including setting salary floors.
"However, the department's authority to define and delimit the EAP exemption's terms through the addition of a proxy characteristic like salary, which is not included in the statutory text, 'is not unbounded,'" Judge Jordan said, citing Mayfield.
Judge Jordan also said the rule, which raised the weekly salary exemption from $684 to $844, went into effect "after only five years" since the last raise, "and for the first time in 85 years that increase comes when there has been no change to the federal minimum wage."
That salary hike would make a third of the employees it applies to overtime-exempt, despite their duties still falling under the EAP exemption, Judge Jordan said.
"When a third of otherwise exempt employees who the department acknowledges meet the duties test are nonetheless rendered nonexempt because of an atextual proxy characteristic — the increased salary level — something has gone seriously awry," Judge Jordan said.
Judge Jordan further found that the increase set to go into effect in January, raising the minimum weekly salary from $844 to $1,128, is also something that "cannot be reconciled with the FLSA's text of the department's own 'longstanding policy.'"
The rule's automatic increase in salaries cannot also pass muster because it clashes with the APA, as it "violates the law's notice-and-comment rulemaking requirements," Judge Jordan said.
While the US DOL can appeal the ruling, in the interim, the increase will not go into effect in January and all EAP exemptions will revert back to the levels they were at prior to the rule going into effect in July.
How the Second Trump Administration Could Impact Business Immigration
From my immigration partner, Sanford Posner:
When the second Trump administration takes office next January, we should expect the same heavy handedness we saw in his first administration – with some refinements or targeted strategies. Trump has promised to both “secure the southern border” and to “deport or remove” all “illegal immigrants” in the US. Without going into much detail – securing the border might be easier than removing all “illegal immigrants” in the country.
Business immigration will become more difficult to obtain expected results. We will see changes in which professional categories will be H1B eligible. Currently, in many instances, a professional position that requires at least a bachelor’s level of education will be eligible for the H1B category. Expect to see a realignment in which professional positions qualify for the H1B non-immigrant category. Previously, the hi-tech and information technology professions were hit hard by the changes in H1B qualifications. Engineering professions were also targeted by the immigration service. Reviewing officers focused on the breadth of major fields that could qualify for a professional role. The more majors that could qualify for professional position, the greater the likelihood of receiving a request for evidence. The net result was a jump in the denial rates of H1B’s. Under the Trump administration, denial rates jumped by almost five times, 15% from about 3%.
We should also expect that L1 cases will be subjected to a higher level of scrutiny. The immigration officers will be second guessing every aspect of a filing. Again, we should expect an increase in complex RFE’s for petitions.
The net effect of a new Trump administration will be an increase in the number and complexity of RFE’s. Expect an uptick in the amount of litigation carried out against the DHS. The best short-term course of action will be to file petitions before the end of the year using premium processing when possible. This would include extension petitions, because the first Trump administration did not respect the decisions of previous filings. Ones that cannot be filed before the end of the year, should be reviewed with a higher level of scrutiny to anticipate potential challenges.
NJ Pay Transparency Law
I won’t bore you with all the details since the law does not go into effect until June 2025, but employers with 20+ employees in NJ will be subject to a new law that requires the disclosure of pay ranges or salaries/hour wage for job postings, as well as requires disclosure of benefits offered. The law covers promotions and new jobs.
Captive Audience Meetings Unlawful
The NLRB issued a hotly anticipated decision Wednesday finding that so-called captive audience meetings violate federal labor law. A majority of the Board said mandatory anti-union meetings violate the National Labor Relations Act because they interfere with workers' freedom to exercise their labor rights by forcing them to hear their employer's views, reversing a 76-year-old decision that blessed this fixture of employer efforts to avoid unions.
Employers may hold meetings to share their views on unions only if they alert workers to the subject in advance, make it voluntary to attend with no consequences for missing and do not take attendance, the majority said.
The case is Amazon.com Services LLC and Amazon Labor Union, case numbers 29-CA-280153, 29-CA-286577, 29-CA-287614, 29-CA-290880, 29-CA-292392 and 29-CA-295663, before the NLRB.
CO and Holiday Incentive Pay
A recent CO Supreme Court decision (Hamilton v. Amazon.com Services LLC) deviates from federal law by requiring holiday incentive pay to be included in the regular rate for overtime purposes. Under FLSA regulations (29 C.F.R. § 778.203(c)), “extra compensation” paid to workers on holidays can be considered an “overtime premium” and not counted toward the regular rate of pay so long as it is not less than time and one-half of the regular rate.
Employers covered by CO’s COMPS Order 39 should not follow the FLSA when considering holiday pay for purposes of overtime calculation.
And, employers should review their pay policies and practices and consider differentiating between “holiday pay” and “holiday incentive pay” in their policies and practices.
“Regular Rate” and Expense Reimbursement
On November 8, 2024, DOL issued Opinion Letter (FLSA2024-01) that addresses whether daily expense reimbursement payments can be excluded from an employee’s regular rate when calculating overtime pay under the FLSA.
The facts involve an oil and gas services company that has employees who perform inspection and related services on new or existing pipeline assets. The company asked the DOL whether it could increase expense reimbursements from $25 to $150-$200 without including these payments in each employee’s regular rate of pay. In its response, the DOL explained that the determining factor for amounts included in the regular rate of pay is whether these payments function as legitimate reimbursements or as compensation for work. Labeling a payment as an “expense reimbursement” is insufficient if the payment does not qualify as a bona fide expense reimbursement. Thus, if these payments are not legitimate expense reimbursements, they must be included in the regular rate of pay.
Note that exclusion in question is addressed in section 207(e)(2), which allows employers to exclude “reasonable payments for traveling expenses, or other expenses, incurred by an employee in the furtherance of [their] employer’s interests and properly reimbursable by the employer,” as well as “other similar payments to an employee which are not made as compensation for [their] hours of employment.”
Remote Employees and Travel Time
A recent Seventh Circuit (Illinois, Indiana, and Wisconsin) case has held that employees who work away from home overnight on assignments lasting several days or weeks are entitled to compensation under the FLSA for time spent traveling to such assignments when the travel occurs during their regular working hours. See: Walters v. Professional Labor Group, LLC, No. 23-3346 (Oct. 30, 2024).
Travel time on non-working days also is compensable if it takes place during what would otherwise be considered the employees' usual working hours, the court held.
The appeals court also held that the employees' travel time should have been counted as hours worked when computing their overtime pay.
DOL OT Rule Update
The DOL is fighting to keep the OT rule alive in a Fifth Circuit, arguing against the plaintiffs’ motion for summary judgment. However, the judge in that case seem to believe that the DOL’s authority to implement the rule is suspect.
U.S. District Judge Sean Jordan for the Eastern District of Texas held a summary judgment during which he questioned the DOL’s justification for raising the salary thresholds, which will make 4.8 million white collar workers (or nearly 38% of the 12.7 million white collar workers in the US) nonexempt regardless of whether they perform duties that would otherwise qualify them as exempt.
When is “salary crossing the line and becoming predominant and what are the metrics the [DOL] is using” to set those salary thresholds, Judge Jordan questioned counsel for the DOL.
DOL Says Clinical Trials May Be Covered Under FMLA
On November 8th, US DOL's Wage and Hour Division issued an opinion letter (FMLA2024-01-A) stating that the FMLA's scope and purpose mandates that FMLA qualifying employers must provide FMLA leave for FMLA eligible employees if requested as part of participation in clinical trials. This opinion letter clarifies the scope of permitted uses of FMLA leave to include medical interventions provided as part of clinical trials, regardless of whether the treatment is experimental or involves placebos.
CA Privacy Act Comment Period
From my partner, Elaine Critides: Last week, the CA Privacy Protection Agency announced its deadline for comments on its proposed rules that cover AI, Automated Decision-making, cybersecurity audits and Insurance. In short, most businesses that collect, sell/ share, or generate marketing leads based of the processing of CA residents' information, and make more than $25 million annually will be affected to some extent.
The hearing and comment date is January 14, 2025.
IL Paystub Law
IL Gov. Gov. signed SB3208 into law, which amends the IL Wage Payment and Collection Act (IWPCA). Highlights:
NY Clean Slate Act
The NY State Clean Slate Act took effect on November 16, 2024. It aims to help individuals with criminal records by automatically sealing certain convictions after a specified period. Highlights: