Recently, the Wage and Hour Division (“WHD”) of the federal Department of Labor announced a new pilot program called the Payroll Audit Independent Determination (“PAID”) program. The program is intended to facilitate quick resolution of potential overtime and minimum wage violations of the Fair Labor Standards Act. The WHD hopes that the program will be used by employers to resolve claims without litigation and that the program will improve employer compliance with the FLSA. The WHD intends to implement this pilot program for a period of six months. After six months, the WHD will evaluate the effectiveness of the program and determine whether any modifications may be necessary.
On June 16, 2017, the Supreme Court of Appeals of West Virginia delivered its opinion in the matter of Martinez v. Asplundh Tree Expert Co., which involved consideration of whether two key pieces of West Virginia’s Legislative reform of 2015 would be applied to currently pending civil actions. The Supreme Court of Appeals accepted two certified questions from the United States District Court for the Northern District of West Virginia regarding whether West Virginia Code §§ 55-7-3E and 55-7-29, which both became effective on June 8, 2015, would apply to civil actions that were filed before June 8, 2015. The West Virginia high court, in a 3-2 decision, ruled that the statutory language in each provision made clear the Legislature’s intent to remedy West Virginia’s standing as a judicial outlier and that, because the statutory sections were remedial in nature, the provisions should be applied to all actions that proceed to trial after June 8, 2015. The Court took due notice of the language in each code section in reaching its ultimate conclusion.
The Persuader Rule Under the Trump Administration
This is the first in a series of posts about likely changes in labor and employment law under the new Trump Administration. We can expect that the Trump Administration will seek to undo or overturn a number of labor-friendly initiatives implemented by President Obama. One of the more controversial initiatives of the Obama Administration related to the Department of Labor’s (DOL) so-called Persuader Rule under the Labor-Management Reporting and Disclosure Act (LMRDA).
You may have heard that the concept of joint employment is getting its share of recent attention. First, the NLRB got involved, with its decision in Browning-Ferris industries, which we wrote about here. OSHA and the EEOC have been poking around in the area, too. Now, it appears to be the Department of Labor’s turn.
Over the last several years, there has been quite a push to broaden who is considered an employee – as well as who is considered an employer – under relevant federal (and even state) laws. For instance, the Department of Labor has stepped up its efforts in singling out employers who misclassify workers as independent contractors. Their recent memo on this subject – which we wrote about here – is the most recent evidence of that. The National Labor Relations Board has also been active in this general area, issuing complaints against McDonalds arguing that a number of its franchisors have as much control over employees as the franchisees do, and therefore are just as legally responsible for ensuring compliance with certain employment laws. These arguments have been advanced by more than just government agencies, however. They have been made by private plaintiffs under anti-discrimination law, too.
With the arrival of summer, many companies are hiring college and high school students to work as interns during summer break. Often, employers do not pay interns at all, or only pay them a stipend or other amount which is lower than the minimum wage. From an employer’s perspective, it may make good business sense not to pay the intern since they usually are not providing the same experience, skill, and expertise which regular employees provide. In addition, usually the practical experience, relationship building, and resume-padding are more valuable to the intern than any compensation.
As we have highlighted previously on this blog, employers have faced an onslaught of wage-and-hour litigation in recent years. Many of those cases have been filed as class or collective actions on behalf of hundreds and even thousands of plaintiff-employees. Most of these cases allege that employees have not been compensated for overtime hours worked as required by the Fair Labor Standards Act (“FLSA”).