The Solicitor’s Office of the U.S. Department of Labor (DOL), which provides legal services to the Secretary of Labor and the program agencies of DOL, including OSHA, the Wage and Hour Division, and the Office of Federal Contract Compliance Programs (OFCCP), is undergoing a reorganization.
The Supreme Court has agreed to hear a case raising the issue of whether pharmaceutical sales representatives (“PSRs”) are exempt from the overtime provisions of the Fair Labor Standards Act (“FLSA”). The Court of Appeals for the Ninth Circuit, in Smithkline Beecham Corp., held that the PSRs were exempt as outside salesmen, thereby creating a split with the Court of Appeals for the Second Circuit, which had previously held in In re Novartis Wage & Hour Litigation that the outside sales exemption did not apply to PSRs.
It appears that BP’s woes are not limited to oil spills.
The Wage and Hour Division of the Department of Labor has announced the results of the first year of the agency’s multi-year enforcement initiative focusing on the gas station industry in New Jersey. During FY 2011 (the year ending on September 30, 2011), Wage-Hour conducted 74 investigations of gas station facilities throughout the state, recovering $1,014,895 in back wages for 295 workers. BP-branded stations accounted for 69 of the establishments investigated. Non-BP stations whose owners also had BP stations were found by Wage-Hour to have similar violations.
The Department of Labor (“DOL”) announced yesterday the winner of the “informAction app” challenge to “empower consumer choices about the hotel, motel, restaurant and retail industries.” The winning app, submitted by Rachel Moore, of Alexandria, VA, is called “Eat Shop Sleep.” It combines enforcement data from the Occupational Safety and Health Administration (OSHA) and Wage and Hour Division (WHD) with consumer ratings web sites, such as Yelp and other tools, such as Google Maps.
The Department of Labor announced on Tuesday that Tulsa-based United States Beef Corp., doing business as Arby’s, has agreed to pay $56,838 in back wages to 759 current and former managers in Arkansas, Illinois, Kansas, Missouri and Oklahoma.
President Obama has withdrawn the nomination of Leon Rodriguez for the position of Administrator of the Wage and Hour Division of the Department of Labor. Rodriguez was the President’s second nominee for the top position in the Wage and Hour Division, a position that has remained vacant for the entire Obama Administration.
Look for OFCCP to move forward on three significant rulemakings and expanded data collection tools in August. While Washington, DC swelters and many who are in Congress have left for their vacations following the vote on raising the national debt, OFCCP is expected to publish in the Federal Register three significant proposals for comment. Here is what to expect:
1. The new compensation survey – On August 4th the Office of Management and Budget (OMB) approved the Advance Notice of Proposed Rulemaking (ANPRM) for compensation data collection by OFCCP from federal contractors. OFCCP will seek input from stakeholders on issues relating to the scope, content and format of the tool to ensure that it is an effective and efficient data collection instrument. We anticipate publication of the ANPRM in the Federal Register during the week of August 8th.
Raymond Jefferson, Assistant Secretary of Labor for Veterans’ Employment and Training Service (“VETS”), resigned this week after the Department of Labor’s Acting Inspector General (“IG”) issued a report finding that Jefferson had violated federal procurement laws.
On June 2, 2011, the Department of Labor (DOL) announced that it had published its “Preliminary Plan for Retrospective Analysis of Existing Rules,” and that the public was invited to submit comments on the plan by July 1, 2011. The preliminary plan is DOL’s next step in effecting compliance with Executive Order 13563, issued by President Obama on January 18, 2011. The Executive Order requires agencies to determine whether existing regulations “should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives.”
It’s back to square one in the efforts to install an Inspector General at the Department of Labor. On May 9, the White House announced that it was withdrawing the nomination of Paul Tiao. DOL stated that Tiao had requested that his nomination be withdrawn for personal reasons. DOL has been without a confirmed Inspector General since 2008, when Gordon Heddell left DOL to become the Inspector General for the Department of Defense. In May 2010, President Obama nominated Paul Tiao to the post, but his nomination ran into strong opposition from conservative organizations that cited his pro-union positions and his support for voting rights for illegal aliens. He was not confirmed during the last Congress, and on January 26, 2011, the President re-nominated him.
The Department of Labor launched its first application for smartphones yesterday. It’s a timesheet that enables employees to track the hours they work and determine the wages they are owed. At the moment, it’s compatible with only the iPhone and iPod Touch. Using the app, which is available in English and Spanish, employees can track their regular work hours, break time and any overtime hours for one or more employers. According to DOL, “This new technology is significant because, instead of relying on their employers’ records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.” The app has a link to the Wage and Hour Division’s website, and information about contacting Wage and Hour.
DOL’s foray into the world of smartphones underscores for employers the need to keep accurate records of the hours their employees work and to encourage their employees to speak to human resources personnel if they have questions about their pay.
Summer is almost here, and students will soon be adding to the ranks of the temporary work force. This is a good time for employers to make sure they know the rules about when they can legitimately treat a student as an unpaid intern, and when they must pay a student at least the minimum wage.
On April 5, 2011, the Department of Labor ("DOL") published final regulations under the Fair Labor Standards Act (“FLSA”). In earlier postings, I discussed DOL’s interpretation of the method for calculating overtime for employees on a fluctuating workweek and requirements regarding tipped employees. The subject of today’s post is the DOL’s requirement regarding public sector employers’ granting of comp time.
On April 5, 2011, the Department of Labor ("DOL") published final regulations under the Fair Labor Standards Act (“FLSA”). In an earlier posting, I discussed DOL’s interpretation of the method for calculating overtime for employees on a fluctuating workweek. The subject of today’s post is the treatment of tip pooling arrangements and tip credits under the new regulations.
Since the public comment period closed March 4 on OFCCP’s proposed rescission on the Compensation Standards and Voluntary Guidelines, contractors that expended significant time and resources to develop SSEGs have wondered, “What now?” While OFCCP believes it “unnecessary” to issue new guidance on compensation analysis, apparently there is plenty going on behind the scenes at the Agency.
On April 5, 2011, the Department of Labor ("DOL") published final regulations under the Fair Labor Standards Act ("FLSA"). DOL states that the agency's purpose was to revise regulations that have become out of date because of subsequent legislation. DOL's pronouncement with regard to overtime calculations, however, was not based on a change in the law but, instead, on the current Administration's disagreement with the Bush Administration's proposal on how existing law should be interpreted.
The Solicitor's Office of the Department of Labor ("DOL") has a new top lawyer for the Fair Labor Standards Division. Jennifer Brand began her tenure as Associate Solicitor in the FLS Division on March 2, 2011. The Division is responsible for the litigation and preparation of regulations under the Fair Labor Standards Act, Family and Medical Leave Act, Davis-Bacon Act, Service Contract Act, Migrant and Seasonal Agricultural Workers Protection Act, and Employee Polygraph Protection Act, among other laws. The Division also provides day-to-day legal advice to the Wage and Hour Division of DOL. As noted on the Division's website, "'Labor Standards,' the basic protections established by Federal law for workers, is the unifying theme of this Division's work."
These days, it seems that just about everyone eagerly awaits the release by the Bureau of Labor Statistics (BLS) of the monthly unemployment rate and the number of jobs added in the previous month. Have you ever wondered how these figures are calculated?
BLS, which is part of the U.S. Department of Labor, uses two different surveys to get the unemployment rate and the number of jobs added each month. The "household survey," or Current Population Survey (CPS), involves asking people, from about 60,000 households, a series of questions to assess each person in the household's activities, including work and searching for work. Their responses give BLS the unemployment rate. The "establishment survey," or Current Employment Statistics (CES), surveys 140,000 employers about how many people they have on their payrolls. These results determine the number of jobs being added or lost.
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