Department of Labor

New guidance from DOL regarding workplace violence

Posted on April 3, 2015

Based on a continuing problem of violence in the workplace, the DOL has issued updated guidance related to this important topic. According to the press release announcing the issuance of the new guidelines, the Bureau of Labor Statistics reported that more than 23,000 significant injuries in 2013 occurred due to assaults in the workplace—and 70% of these were in the healthcare and social service settings. The guidance offers best practices and provides effective ways to minimize the risk of violence in healthcare and social service settings where it has been found that workers are four times more likely to suffer violence than the average sector worker. The guidance focuses on five settings: hospital settings, residential treatment, non-residential treatment/services, community care and field work. These updated guidelines can be found here: https://www.osha.gov/Publications/osha3148.pdf…

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Tipped Employees Must Have Actual Notice of Use of Tip Credit

Posted on November 14, 2014

The tip credit permitted under the Fair Labor Standards Act (“FLSA”) has always presented challenges to restaurants and other employers seeking to apply it correctly. Last month, the First Circuit addressed the tip credit and the question of the type of notice which must be given to employees regarding its use in the case of Perez v. Lorraine Enters., No. 13-1685 (1st Cir. Oct. 1, 2014). The First Circuit ruled that constructive knowledge of the application of the tip credit is not enough, but rather employees must have actual notice that tips are to be treated as part of their wages.…

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Executive Order 13658 “Establishing a Minimum Wage for Contractors” Final Rule

Posted on October 3, 2014

On Tuesday, the U.S. Department of Labor issued the final rule that raises the minimum wage for workers on federal contracts to $10.10 an hour. The 338 page rule, which takes effect on January 1 2015, implements Executive Order 13658. The final rule provides for employers guidance as to which contracts and which employees are covered. Contractors must fulfill certain obligations to comply with the new minimum wage provisions, including recordkeeping requirements. The rule also establishes an enforcement process and will protect the right of workers to receive the new minimum wage.…

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Summary Judgment Affirmed for Employer Using Monday-Sunday Workweek to Calculate Overtime

Posted on August 15, 2014

Last month, the Fifth Circuit Court of Appeals faced the question of whether the Fair Labor Standards Act (“FLSA”), an employer has to use a certain workweek to maximize overtime for employees. The Fifth Circuit ruled that there is no such obligation on an employer. Johnson v. Heckmann Water Resources, Inc. No. 13-40824 (July 14, 2014).…

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DOL Proposed Rule Redefines “Spouse” Under FMLA

Posted on July 3, 2014

In the wake of the United States Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013), the Department of Labor has issued a proposed rule changing the definition of “spouse” under the FMLA. This proposed rule, issued on June 20, 2014, would insure that all eligible employees who are legally married, including both same-sex or opposite sex marriages, will be entitled to protection under the FMLA.…

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SNOW DAY! Do you have to pay exempt employees?

Posted on February 14, 2014

Even here in Hampton Roads, where we rarely see much snow at all, we have had to confront the various issues that can arise in the workplace during a snowstorm.  Do we close the office? What do we do if we remain open, yet an employee doesn’t come in?  The Department of Labor issued an opinion letter in 2005 (FLSA2005-46) addressing an employer’s question regarding deductions from pay in the event of an employee’s absence due to adverse weather conditions. Basically, if an employee is exempt under the Fair Labor Standards Act (“FLSA”) and the employer makes the decision to close the workplace because of a snowstorm, that exempt employee must be paid for the full week, without any deductions.  However, if an exempt employee does not come into work because of adverse weather conditions even though the workplace remains open, a deduction to his or her salary can be taken, but only if he or she is absent for a full day.…

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Outside Sales Exemption Applies to Mortgage Loan Officer

Posted on February 7, 2014

Exemptions under the Fair Labor Standards Act (“FLSA”) continue to be the source of much litigation in our district and across the country.   Last month, the Eastern District of Virginia tackled the outside salesperson exemption and found that a mortgage loan officer qualified for the exemption, even though she spent only about 25-30% of time out of the office selling and didn’t necessarily close deals outside of the office.  See Hartman v. Prospect Mortgage, LLC, Case No. 1:13cv1432 (E.D. Va. January 7, 2014).…

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