Hunton Retail Law Resource

On August 3, 2020, the United States District Court for the Southern District of New York struck down portions of the DOL’s Final Rule regarding who qualifies for COVID-19 emergency paid sick leave under the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”), collectively referred to as the Families First Coronavirus Response Act (“FFCRA”).

In recent years, publicly traded retailers have experienced a significant uptick in interest from investors focused on Environmental, Social and Governance (“ESG”) issues. On April 23, 2018, the Department of Labor (“DOL”) released Field Assistance Bulletin 2018-01 (the “FAB”). The FAB applies to certain retirement plan fiduciaries who make investment and proxy voting decisions that derive from ESG concerns, and may impact investor behavior at public retailers.

Read our full alert.

As reported on the Hunton Employment & Labor Perspectives blog, say an employee slips $20 from the register and even admits to it when you show the camera footage. Or, more innocently, say an employee is overpaid $20 entirely by accident. If the employee refuses to give it back, should you deduct the $20 from the employee’s paycheck?

If 2017 is any indication, the new year will bring a fresh cascade of changes—both announced and unannounced, anticipated and unanticipated—in the business immigration landscape. Few, if any, of these changes are expected to be good news for U.S. businesses and the foreign workers they employ.

In 2017, while much of the news media focused on the Trump Administration’s draconian changes to practices and policies that affected the undocumented—including ending the DACA Dreamer program, shutting down Temporary Protected Status for citizens of countries ravished by war and natural disaster, and aggressively enforcing at the southern border and in “sensitive” locations such as churches, courthouses and homeless shelters—relatively less attention has been paid to the steady, incremental erosion of rights and options for legal immigrants, particularly those who are sponsored for work by U.S. employers, under the Administration’s April 2017 “Buy American/Hire American” executive order. There is no doubt that such restrictions to the legal immigration system will continue to cause business uncertainty and disruption in 2018. Here’s what to expect.

On November 10, 2017, the New York Department of Labor released a set of proposed regulations affecting the Minimum Wage Order for Miscellaneous Industries and Occupations, which applies to most employers, except hotels and restaurants.

Earlier this month, the Department of Labor (“DOL”) dropped its defense of an Obama-era regulation that sought to increase the salary level for overtime-exempt employees from $23,660 per year to $47,476 per year. The regulation had been set to take effect in November 2016, but a last-minute preliminary injunction issued by a federal district court in Texas stayed the implementation of the regulation.

In the preliminary injunction ruling, the district court ruled that the new $47,476 salary threshold exceeded the scope of the DOL’s authority because such a high salary level had the effect of making an employee’s salary—and not their primary duty—the determinative factor in the exemption inquiry. Importantly, the district court’s preliminary injunction ruling went well beyond the appropriateness of the particular salary level at issue in the new regulation, and instead expressed the broader view that the DOL lacked the authority to impose any salary level requirement (regardless of the level of salary chosen) because the relevant provision of the FLSA focused on an employee’s duties, not their salary. 

Recently, President-elect Donald Trump tapped Andrew Puzder as his pick for Secretary of Labor. Puzder—the CEO of Hardee’s and Carl’s Jr.—has been an outspoken critic of government regulations, including efforts to increase the minimum wage and recent changes to the white-collar overtime exemption. If the Senate confirms Puzder, he will oversee the agencies responsible for these policies and his confirmation could signal a slowdown of anti-business federal regulations from the Department of Labor under President Obama’s Secretary of Labor, Thomas Perez.

Under the Fair Labor Standards Act’s (“FLSA’s”) white-collar exemptions, an employee must meet both a duties and a salary basis test in order to be exempt from overtime requirements. Currently, the salary basis test requires that the employee receive at least $455 per week in salary. However, under a recent Department of Labor rulemaking, the weekly salary amount is set to more than double to $913 per week effective December 1, 2016. Thus, employers must ensure that any white-collar-exempt employee making less than $913 per week either (1) receives a salary increase to at least $913 per week to continue the overtime exemption or (2) is reclassified to non-exempt and receives overtime when working more than 40 hours in a week. 

As reported in the Hunton Employment and Labor Law Blog, under the Fair Labor Standards Act (“FLSA”), employers who use a tip credit to satisfy their minimum wage obligations for tipped employees must follow certain rules related to those tips. One of those rules relates to the use of tip pools – i.e., pooling of tips received by multiple tipped employees and then dividing the total among the pool participants based on a specified formula. Under Section 3(m) of the FLSA, employers who rely on the tip credit and who require their tipped employees to contribute their tips to a tip-pooling arrangement must ensure that the only employees who participate in the pool are those that “customarily and regularly” receive tips. This typically means that managers, hostesses, cooks, dishwashers and other non-tipped employees cannot participate in the tip pool if the employer wants to rely on the FLSA’s tip credit.

As reported on the Hunton Employment and Labor Law Blog, the United States Supreme Court has denied a restaurant manager’s petition seeking review of whether parties may stipulate to the dismissal with prejudice of a lawsuit alleging violations of the Fair Labor Standards Act (“FLSA”), or whether judicial or Department of Labor (“DOL”) approval is a prerequisite to such a dismissal, as the Second Circuit held in his case, Cheeks v. Freeport Pancake House, Inc. Having declined the petition for writ of certiorari, FLSA lawsuits will remain more difficult to resolve for employers in New York, Connecticut and Vermont.