Tag Archives: Fair Labor Standards Act

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


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


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 and Employment Law Annual Update

Department of Labor

Partner Ellen Leibovitch, Florida Board Certified in Labor and Employment Law, will be speaking at the 17th Labor and Employment Law Annual Update and Certification Review. The annual course, presented by the The Florida Bar Continuing Legal Education Committee and the Labor and Employment Law Section, is an advanced level course covering a wide array of labor an employment topic.  Ellen will be speaking on the Fair Labor Standards Act (FLSA) on January 26, 2017.  Given the recent law changes and case law surrounding the changes, this will be an informative panel about the FLSA.  Details about the event are below.

January 26 – 27, 2017
Gaylord Palms Resort & Convention Center
6000 W. Osceola Parkway
Kissimmee, FL 34746
(407) 586-0000

For those interested in attending, you can register for the event at the Florida Bar website.

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.


1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com


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

Miami • Ft. Lauderdale • Boca Raton

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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


1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main:  (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com


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

Miami • Ft. Lauderdale • Boca Raton

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LABOR LAW Update – 11th Circuit Clarifies Liquidated Damages Awards in FLSA Cases

11th Circuit Seal

In the case of Davila v. Menendez, decided on June 10, 2013, the Eleventh Circuit Court of Appeals, which controls all federal courts in Florida, clarified the respective roles of the jury and the district court in deciding issues relevant to claims arising under the Fair Labor Standards Act (FLSA) claims.

In the Davila case, the trial court entered a directed verdict in favor of the defendant employer on the issue of intentional, reckless or willful behavior, thus precluding an award of liquidated (double compensatory) damages.  The plaintiff appealed, arguing that the jury was first required to decide whether the defendant willfully violated the FLSA before the court could rule on liquidated damages.

The Eleventh Circuit agreed and held that the district court erred when it entered judgment as a matter of law that the defendant did not violate FLSA.  The appellate court clarified that the district court was required to await the finding of the jury as to whether the defendant willfully or in good faith violated the law before assessing liquidated damages.  The court further noted that a jury’s finding of willfulness will establish both the period of limitations (willful violations of FLSA allow for a three-year look back period whereas non-willful violations allow only a two-year look back) and the propriety of liquidated damages.  A jury’s finding of willfulness mandates liquidated damages whereas a non-willful finding leaves the question of liquidated damages to the district court’s discretion.

Davila v. Menendez, __ F.3d __, 2013 WL 2460199 (C.A.11 (Fla.)).

For more information on any labor or employment issues, please call

Labor & Employment Partner Ellen Leibovitch.

For more information on Mrs. Leibovitch’s practice, go to: http://www.assoulineberlowe.com/Ellen_Leibovitch.asp or you can contact her by e-mail at eml@assoulineberlowe.com

Assouline & Berlowe is a full service business law firm with offices in Miami, Ft. Lauderdale, and Boca Raton.


Miami: 305-567-5576

Ft. Lauderdale: 965-929-1899

Boca Raton: 561-361-6566


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