Tag Archives: Department of Labor

EMPLOYERS: Are You Exempt from Paid Sick Leave for COVID?

Photo by Tim Mossholder on Pexels.com

Among other things, the Families First Coronavirus Relief Act (FFCRA) provides paid leave to employees to care for a child and paid sick leave.  Though the FFCRA generally applies to employers with less than 500 employees, employers with less than 50 employees can be exempt if compliance with the FFCRA would jeopardize “the viability of the employer’s business as a going concern.” Upon enactment, Congress did not clarify the mechanism for claiming an exemption, but the Department of Labor (DOL) recently issued some guidance.

A small business (with fewer than 50 employees) may be exempt from certain paid sick leave and expanded family and medical leave requirements if: (a) leave is requested because the employee’s child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and (b) providing that employee such leave would jeopardize the viability of the employer’s business as a going concern.  As to (b), an authorized officer of the business must determine that at least one of the following three conditions is satisfied:

  1. the requested leave would result in the small business’s expenses and financial obligations to exceed available business revenues and cause the small business to cease operating at minimal capacity; or
  2. the absence of the employee or employees requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business or responsibilities; or
  3. there are not sufficient workers who are able, willing and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting leave, and those labor or services are needed for the small business to operate at minimal capacity.

The exemption applies only to leave requests under the FFCRA due to school closures and child care unavailability and does not exempt small businesses from providing sick leave for any of the other types of permissible requests under the FFCRA. 

The DOL does not explain how small businesses go about claiming the exemption and specifically advises employers not to send any materials to the DOL.  So what is an employer to do?  We recommend having an authorized officer of the employer sign a statement verifying that one or more of the three qualifying reasons apply and attach supporting materials if available.  The employer must maintain this record for at least four (4) years in case of a lawsuit, DOL audit or other challenge. Remember that this exemption only applies to employers with less than 50 employees and is otherwise inapplicable to employers with 51 to 499 employees.

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A.

2300 Glades Road

East Tower – Suite 135

Boca Raton, Florida 33431

Main: 561-361-6566
Direct: 561-948-2479

[Bio] [V-card] [Directions]

eml@assoulineberlowe.com

www.assoulineberlowe.com

Leave a comment

Filed under Labor & Employment

U.S. Department of Labor Issues Final Rule To Update FLSA’s Joint Employer Regulations

In addition to all the other labor and employment updates in the law of the last week, the issue of “joint employment” has gone through an official transformation this past week. 

The issue of Joint Employer arises frequently in Fair Labor Standards Act (FLSA) cases when employees seek to hold more than one “employer” liable for overtime and other wages claimed to be owed.  Oftentimes, the question of whether entities can be considered joint employers is uncertain and differs from court to court.  In an effort to clarify the matter, the Department of Labor (DOL) has adopted a four-factor balancing test to determine joint employer status that is focused on decision-making (did the alleged employer have the right to hire and fire the employee?), supervision (did the alleged employer substantially control the conditions of employee’s employment?), payment (did the alleged employer set the employee’s pay?) and record-keeping (did the alleged employer maintain employment records?).

As with all balancing tests, no one factor is more important than the other.  The questions becomes whether, on balance, the employee performed work that benefitted more than one employer, and additional facts relevant to this inquiry may also be considered.

This final rule quietly went into effect on March 16, 2020 but was understandably overshadowed by critical issues surrounding COVID-19. 

Important to note that this rule is only applicable to joint employer issues arising under the FLSA and not to other federal laws impacting employment such as Title VII of the Civil Rights Act.

More information about the new rule can be found at https://www.dol.gov/agencies/whd/flsa/2020-joint-employment.

Of course, feel free to contact me if you have any questions.

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A.

2300 Glades Road

East Tower – Suite 135

Boca Raton, Florida 33431

Main: 561-361-6566
Direct: 561-948-2479

[Bio] [V-card] [Directions]

eml@assoulineberlowe.com

www.assoulineberlowe.com


Intellectual Property, Labor & Employment Law,  Real Estate, International Dispute Resolution, Commercial Litigation, Corporate Law, Bankruptcy, Trusts & Estates, Probate and Guardianship


Miami • Ft. Lauderdale • Boca Raton 

Leave a comment

Filed under Labor & Employment, Uncategorized

LABOR LAW UPDATE – Exempt Employee Thresholds

Business Law Firm - Hard Rock Guitar Assouline

It is Finally Here!

Over the years, the U.S. Department of Labor (DOL) has attempted to change certain rules applicable to implementation of the Fair Labor Standards Act (FLSA) and increase the salary threshold for exempt employees from $455 per week (the level it has been at since 2004).

Many may recall that a rule to increase the salary thresholds for exemptions was first enjoined and subsequently invalidated by the U.S. District Court for the Eastern District of Texas in 2016.   A year later, the U.S. Court of Appeals for the Fifth Circuit has held the appeal in abeyance pending further DOL rulemaking regarding a revised salary threshold.  In other words, the DOL has consistently enforced the 2004 salary level for the last 15 years.

However, the DOL has now finally announced a final rule which is expected to make 1.3 million American workers eligible for overtime pay under the FLSA.  In a nutshell, this rule, which will go into effect on January 1, 2020, accomplishes three primary objectives:

First, the rule updates the earnings thresholds – from $455 to $684 per week – necessary to exempt certain white collar positions, i.e., executive, administrative and professional employees, from the FLSA’s minimum wage and overtime pay requirements.

Second, the new rule will allow employers to meet up to 10% of the new salary level from nondiscretionary bonuses and incentive payments (including commissions).

Third, the rule will increase the salary requirements for the “highly compensated employees (HCE)” exemption from $100,000 to $107,432 per year.

Again, please note that the final rule will be effective on January 1, 2020.

Additional information about the final rule is available at www.dol.gov/whd/overtime2019.  Please feel free to contact me if you have any questions.

Ellen M. Leibovitch, Head of Labor & Employment Practice – Boca Raton Office and can be reached by email at eml@assoulineberlowe.com or by Telephone: 561-361-6566.

 

Leave a comment

Filed under Appeals, Arbitration, Awards, Bankruptcy, BK, Business Litigation, commercial litigation, Copyright, Corporate Law, Human Resources, Intellectual Property, International, International Arbitration, IP Litigation, Labor & Employment, labor and employment law, Litigation, Patent Prosecution, Uncategorized

EMPLOYERS: Department of Labor Issued its Final Rule on Overtime Pay under FLSA – EFFECTIVE JANUARY 1, 2020

17964.jpeg

Board Certified Labor & Employment Partner Ellen Leibovitch and Litigation Partner Eric Assouline, of Assouline & Berlowe

Human Resource Departments should take note, the overtime rules have now been clarified by the Department of Labor.

Over the years, U.S. Department of Labor (DOL) has attempted to change certain rules applicable to implementation of the Fair Labor Standards Act (FLSA) and increase the salary threshold for exempt employees from $455 per week (the level it has been at since 2004).

Many may recall that a rule to increase the salary thresholds for exemptions was first enjoined and subsequently invalidated by the U.S. District Court for the Eastern District of Texas in 2016.

A year later, the U.S. Court of Appeals for the Fifth Circuit held the appeal in abeyance pending further DOL rulemaking regarding a revised salary threshold.  In other words, the DOL has consistently enforced the 2004 salary level for the last 15 years.

The DOL has now announced a final rule which is expected to make 1.3 million American workers eligible for overtime pay under the FLSA.

In a nutshell, the rule, which goes into effect on January 1, 2020, accomplishes three primary objectives:

First, the rule updates the earnings thresholds – from $455 to $684 per week – necessary to exempt certain white collar positions, i.e., executive, administrative and professional employees, from the FLSA’s minimum wage and overtime pay requirements.

Second, the new rule will allow employers to meet up to 10% of the new salary level from nondiscretionary bonuses and incentive payments (including commissions).

Third, the rule will increase the salary requirements for the “highly compensated employees (HCE)” exemption from $100,000 to $107,432 per year.

Again, please note that the final rule will be effective on January 1, 2020.

Additional information about the final rule is available at www.dol.gov/whd/overtime2019.  Please feel free to contact me if you have any questions.

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A.

2300 Glades Road

East Tower – Suite 135

Boca Raton, Florida 33431

Main: 561-361-6566

Direct: 561-948-2479

Assouline & Berlowe SuperLawyers 2019

Leave a comment

Filed under Appeals, Bankruptcy, Business Litigation, commercial litigation, Corporate Law, Human Resources, Labor & Employment, labor and employment law, Litigation, Uncategorized

EMPLOYMENT LAW UPDATE – Significant Changes to Overtime Regulations!

 

For loyal followers of these updates, this Department of Labor “update” may seem like déjà vu.  Indeed, three years ago I sent out an update notifying you that the Department of Labor (DOL) had released final changes to the overtime regulations under the Fair Labor Standards Act (FLSA) and that the changes were scheduled to go into effect on December 1, 2016.  Well, as it turned out, the new regulations never did go into effect, but the DOL recently decided to revisit the issue.

So what’s new?

In a nutshell, the proposed rule (which is expected to go into effect in January 2020) would require that all employees earning less than $35,308 per year (or $679/week) – regardless of their job duties – be paid overtime for working 40 hours in a work week.  Overtime is typically equal to one and one-half times the employee’s regular rate of pay.  This means that employees who are now exempt from receiving overtime will no longer remain exempt if they earn less than $35,308 per year.

Without sounding like the boy who cried wolf, now is the time for covered employers to start preparing.

What does this mean?

For exempt employees earning at least $679/week, nothing will change.  However, employees who are now classified as exempt but who are earning less than $679/week will lose their exempt status if and when the new rule goes into effect.

Becoming non-exempt means that these employees will be eligible for overtime pay when working over 40 hours in a work week, and it also means that these employees will be required to record their hours worked.  For exempt employees who never “punched a clock,” this may be demoralizing, although some may welcome the opportunity to earn overtime.

What should you do?

Step 1: EVALUATION

  • Determine which employees will be impacted by these new rules if anyone.
  • Assess the cost of reclassifying these employees as non-exempt or increasing their salaries in accordance with the new guidelines to keep these employees exempt.
  • For employees who will be reclassified as non-exempt, no additional costs will result:
    • if the newly non-exempt employees do not work overtime.  Remember that even if you have a policy that requires all overtime hours be approved in advance, non-exempt employees who work over 40 hours a week must be paid at the time and one-half rate.
    • if the hourly rate paid to the newly non-exempt employees is reduced to take into account the need for these employees to work some overtime hours each week.
  • Remember to train all newly-exempt employees on your time-keeping procedures.

Employers impacted by these new rules may need to consider covering increased overtime costs by reducing benefits, but this will certainly result in a drop in employee morale.

Step 2: COMMUNICATION

  • Notify impacted employees that changes are the result of new rules imposed by the DOL rather than a company decision
  • Assure reclassified employees that the changes do reflect the employer’s opinion of their work or the employees’ value to the company

As always, you should contact legal counsel for any specific questions you may have about the applicability of the FLSA to your business, these new rules and how to best implement same.

 

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: 561-361-6566
Direct: 561-948-2479

[Bio] [V-card] [Directions]

eml@assoulineberlowe.com

www.assoulineberlowe.com

Intellectual PropertyLabor & EmploymentCreditors’ Rights & BankruptcyBusiness LitigationCorporate & FinanceReal EstateInternational LawTrust & Estates, Probate and Guardianship

Leave a comment

Filed under Labor & Employment

New Overtime Regulations Impacting You

 

 

br_1016_92

Board Certified Labor and Employment Partner Ellen Leibovitch will be speaking on October 20, 2016 about important changes to the overtime regulations under the Fair Labor Standards Act (FLSA) that will go into effect on December 1, 2016.  Ellen, who recently appeared in the Boca Raton Observer, will discuss what employers need to know about the changes to the FLSA to protect their companies.

Please join the South Palm Beach County Bar Association’s Labor & Employment Committee on October 20, 2016 for breakfast and a panel discussion on the scope of the new rules and best practices for making sure your business is fully compliant as of day one.  To register online, click here.

Ellen is a Florida Board Certified Labor and Employment Attorney with Assouline & Berlowe, P.A.  For any employment and labor questions, please contact Ellen below.

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, Real Estate, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

 

Leave a comment

Filed under Business Litigation, Florida Bar, Labor & Employment, labor and employment law, Uncategorized

Breaking News! Federal Court Puts Home Health Care Rule Changes on Hold!

laborAssouline & Berlowe, P.A. Board Certified Partner Ellen Leibovitch recently spoke at a seminary regarding important changes to the Fair Labor Standards Act (FLSA) that were set to take effect on January 1, 2015.  These changes are relevant to third party agencies who employ companions and live-in domestic service employees.

After this seminar, on December 22, 2014, the United States District Court for the District of Columbia – in Home Care Association of America v. Weil, 1:14-cv-00967-RJL – struck down significant portions of the new rules which were set to go into effect on January 1, 2015.  As Mrs. Leibovitch spoke about at the seminar , the new regulations would have made the long-standing exemptions to the FLSA’s minimum wage and overtime requirements for companions and live-in domestic employees inapplicable to third-party employers (like home health care agencies).  The federal court determined that the Department of Labor (DOL) exceeded its authority and improperly sought to impose obligations on employers in violation of the plain language of the FLSA.

What does this mean to you and your businesses?  While the decision was a victory for many in the home health care industry, the court did not strike down the entire regulation, including the new definition of “companionship.”  What is clear from the decision is that the new rules will NOT be applied to live-in domestic care workers who reside in the private household where they are employed.  These workers will NOT, as the DOL had planned, be protected by the FLSA’s  overtime requirements, although the minimum wage requirements and the record-keeping requirements will remain enforceable as of January 1, 2015.

As for companions (not live-ins), the rules are still somewhat unclear.  It may take days or weeks to get a better handle on the situation, so please be on alert for further developments.  While it would appear that the rush to comply with the new rules has come to a grinding halt, everyone should remain proactive and ready for what happens next.  Mrs. Leibovitch will attempt to stay on the forefront and provide information as gathered.

Ellen M. Leibovitch is a Florida Bar Board Certified Labor & Employment lawyer and head of the firm’s labor and employment practice.  If Mrs. Leibovitch can be of any assistance to you regarding these rule changes, please do not hesitate to contact her using the information below.

Ellen M. Leibovitch

Florida Board Certified Labor and Employment Attorney

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main:  (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, Real Estate, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

Leave a comment

Filed under Business Litigation, Corporate Law, Labor & Employment

Labor Law – Make Sure You are NOT DOA When the DOL Comes Knocking – Hire an Attorney

Knock Knock.  Who’s There?  The Department of Labor (the “DOL”).

The DOL is here to see you – now what?!

Imagine the scene: you are the owner of a business, not too big but not small either.  You have done pretty well for yourself and have grossed over $500,000 in revenues over the past few years.  You have a staff of employees, most of whom are hourly.  It’s a typical day, business as usual, when all of a sudden your receptionist announces that some people from the Department of Labor (DOL) are here to see you.  A myriad of thoughts and questions race through your mind: “Why is the DOL here?  I never got a letter or any notice that I had any problems!  Why didn’t they call and make an appointment?  Am I in trouble?”

One thought that will not likely go through your mind is this: “I need to call my attorney.”  The reason for that is simple: most business owners are used to solving problems by employing obvious and simple solutions and turning on their best “customer service” skills to nip problems in the bud.  Consequently, you walk into the lobby to meet your “guests,” show them into your office (or preferably to a conference room), sit them down, offer them a cup of coffee from your brand new Keurig machine, ask how you can help and wait for a response.  Little do you know that the DOL is already five steps ahead of you, and they are waiting to pounce.  These DOL investigators come armed with the tools of their trade, starting with a detailed, comprehensive, all-encompassing request for documents that would take hours, days or maybe even longer to compile.  They are not impressed with your graciousness; they want blood, and they want it now.

At this point, most business owners are still thinking they have it under control.  Just give the DOL what they want, and they will go away.  If only it were that simple.  This is just the tip of the iceberg, the first shot across the bow.  Your business is now in the DOL’s sight, and the DOL will not leave without their pound of flesh.  If you have not thought about bringing in legal counsel before, now is the time to make the call.

You may be wondering how the DOL chose your business.  Usually, the DOL will act on either an anonymous complaint, a follow-up from a prior investigation or a focused concentration on businesses similar to yours.  The anonymous complaint is usually made by a current or former disgruntled employee who believes that you are not paying what you owe him.  Chances are, if you are not paying one employee in accordance with the law, then you are probably making the same errors across the board.  The “follow-up” investigation comes after a prior investigation, just when you thought the DOL was through with you.  The DOL loves to pop in to make sure that you are following through with all the things required under the law – like keeping accurate time and payroll records, making sure hourly employees are getting paid time and one-half for overtime hours worked each week, not docking employees who work through lunch, etc. (you know, all the things for which you were cited and paid dearly for previously).  The third type of investigation commences with the DOL’s decision to focus on specific industries in the local geographic area based on a history of reported violations.  Some South Florida industries that have been on the DOL’s radar in the past include restaurants (especially those with tip pools), farms and nurseries, dry cleaners, home health agencies, etc.

So even if you did not think about calling your attorney before you offered the DOL investigators a seat in your conference room and a cup of coffee, do not fear.  A skilled labor & employment law attorney can help you communicate with, respond to and negotiate an exchange of documents (and more) with the DOL.  A labor & employment attorney speaks the DOL’s language and is invaluable in these type of situations.  Regardless whether you hire an attorney before you meet the DOL investigator, after you provide copies of all your business’ financial statements and tax returns or after the DOL has determined that you owe hundreds of thousands of dollars in back wages and penalties, a seasoned labor & employment attorney will be able to help.

For more information, please feel free to contact me.

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A.

2700 N. Military Trail, Suite 150

Boca Raton, Florida33431

Main: 561-361-6566
Direct: 561-948-2479

Fax: 561-361-6466

Email: eml@assoulineberlowe.com

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, and Corporate Law

Miami • Ft.Lauderdale • Boca Raton

1 Comment

Filed under Labor & Employment