Tag Archives: employers

LABOR LAW UPDATE – Exempt Employee Thresholds

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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.

 

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

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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

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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

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