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Archive for the ‘Wage & Hour’ Category

Will the Department of Labor be “Kinder and Gentler” Under Acosta?

Posted on: March 22nd, 2017

By: Marty Heller

As Secretary of Labor nominee Alexander Acosta awaits his impending confirmation hearings, senators from both sides of the aisle have been asking questions about where Acosta will fall on issues such as the currently enjoined changes to the overtime rule, potential increases to the federal minimum wage, and countless changes to OSHA’s injury reporting and investigation rules. 

We may have to wait a while to find out the answer to these questions. Nonetheless, reviewing Acosta’s background, we have a glimpse of how he might run the Department of Labor. As an assistant attorney general, Acosta collaborated with the police to try to develop policies and procedures to avoid litigation, and he was active in helping the Department of Justice meet with government and private employers to advance efforts to voluntarily comply with discrimination laws through compliance training and outreach. In 2005, Acosta told a house panel reviewing police investigations “rather than adopting a purely litigation-driven enforcement model, our experience demonstrates that a cooperative model produces much better and faster results.” 

Business groups around the country are welcoming Acosta’s nomination and potential confirmation, with the hope that the Department of Labor may adopt a more training and compliance friendly approach that uses enforcement procedures, such as suing employers to obtain back pay, only when absolutely necessary. Ed Foulke, who ran OSHA under President Bush, echoed these expectations, saying “they’ll definitely be moving more to compliance assistance, helping employers be safe, helping employers be successful…I don’t think you’ll see the really nasty press releases.”

The confirmation hearings for Acosta are expected to begin on March 22, and his testimony during the hearings may give us additional information about his views on lingering issues. One thing is for certain – Acosta is a much less controversial selection then Andrew Puzder, who withdrew prior to his senate confirmation hearings, and barring something unforeseen, Acosta is expected to be confirmed as Secretary of Labor in the near future. 

 For any questions, please contact Marty Heller at [email protected].


Be on the Lookout for Minimum Wage Increases in 2017

Posted on: December 20th, 2016

 By: Brad Adler and Agne Krutules

As we enter into 2017, employers should remember that, while the federal minimum wage remains at $7.25, many state and local jurisdictions have passed legislation that will increase their respective minimum wage in 2017.

Below is a list of the states and some of the major local governments that will be increasing their minimum wage in 2017. Of course, if you have employees working within any of these jurisdictions, it is important that you pay them in accordance with the state or local law.

Jurisdiction Current Min. Wage Planned Min. Wage Effective Date
Alaska $9.75 $9.80 January 1, 2017
Arizona $8.05 $10.00 January 1, 2017
City of Flagstaff, AZ $8.05 $12.00 January 1, 2017
Arkansas $8.00 $8.50 January 1, 2017
California* $10.00 $10.50 January 1, 2017*
Berkeley, CA $12.53 $13.75 October 1, 2017
Cupertino, CA $10.00 $12.00 January 1, 2017
Emeryville, CA $13.00 $14.00 July 1, 2017
Los Altos, CA $10.00 $10.50 January 1, 2017
Los Angeles, CA $10.50 $12.00 July 1, 2017
Los Angeles County, CA $10.50 $12.00 July 1, 2017
Mountain View, CA $11.00 $13.00 January 1, 2017
Oakland, CA $12.55 $12.86 January 1, 2017
Palo Alto, CA $11.00 $12.00 January 1, 2017
Pasadena, CA** $10.00 $10.50 July 1, 2017
Richmond, CA $11.52 $12.30 January 1, 2017
San Diego, CA $10.50 $11.50 January 1, 2017
San Francisco, CA $13.00 $14.00 July 1, 2017
San Jose, CA $10.30 $10.50 January 1, 2017
San Mateo, CA $10.00 $12.00 January 1, 2017
Santa Clara, CA $11.00 $11.10 January 1, 2017
Santa Monica, CA $10.50 $12.00 July 1, 2017
Sunnyvale, CA $11.00 $13.00 January 1, 2017
Colorado $8.31 $9.30 January 1, 2017
Connecticut $9.60 $10.10 January 1, 2017
District of Columbia $11.50 $12.50 July 1, 2017
 Florida $8.05 $8.10 January 1, 2017
Hawaii $8.50 $9.25 January 1, 2017
Chicago, IL $10.50 $11.00 July 1, 2017
Cook County, IL $8.25 $10.00 July 1, 2017
Johnson County, IA $9.15 $10.10 January 1, 2017
Polk County, IA $7.25 $8.75 April 1, 2017
Wapello County, IA $7.25 $8.20 January 1, 2017
Maine $7.50 $9.00 January 1, 2017
Portland, ME $10.10 $10.68 January 1, 2017
Maryland $8.75 $9.25 July 1, 2017
Montgomery County, MD $10.75 $11.50 July 1, 2017
Prince George County, MD $10.75 $11.50 October 1, 2017
Massachusetts $10.00 $11.00 January 1, 2017
Michigan $8.50 $8.90 January 1, 2017
Missouri $7.65 $7.70 January 1, 2017
Kansas City, MO*** $7.65 $9.82 January 1, 2017
Montana $8.05 $8.15 January 1, 2017
New Jersey $8.38 $8.44 January 1, 2017
Albuquerque, NM**** $8.75 $8.80 January 1, 2017
Bernalillo County, NM $8.65 $8.70 January 1, 2017
Las Cruces, NM $8.40 $9.20 January 1, 2017
New York***** $9.00 $9.70 December 31, 2016
New York City, NY****** $9.00 $11.00 December 31, 2016
Nassau, Suffolk, and Westchester Counties, NY $9.00 $10.00 December 31, 2016
Ohio $8.10 $8.15 January 1, 2017
Oregon******* $9.75 $10.25 July 1, 2017
South Dakota $8.55 $8.65 January 1, 2017
Vermont $9.60 $10.00 January 1, 2017
Washington******** $9.47 $11.00 January 1, 2017


* Although the statewide minimum wage will increase from $10.00 to $10.50 as of January 1, 2017, employers with 25 or fewer employees will receive a one-year reprieve and will not face the statewide increase in 2017.

** In Pasadena, employers with 25 or fewer employees will face a minimum wage increase to $10.50 as of July 1, 2017, while larger employers will face an increase from $10.50 to $12.00 as of the same date.

*** The Kansas City minimum wage was slated to increase to $9.82 on January 1, 2017, but is stalled due to pending court challenges. The Missouri Supreme Court is expected to soon rule on the issue. The same holds true for the St. Louis minimum wage, which was scheduled to increase to $10.00 as of January 1, 2017.

**** However, if the employer provides healthcare and/or childcare benefits to the employee during any pay period and pays an amount for these benefits equal to or in excess of an annualized cost of $2,500, the minimum wage will increase from $7.75 to $7.80.

***** For fast-food employers outside of New York City, the minimum wage will increase from $9.75 to $10.75 on December 31, 2016.

****** For businesses with less than 11 employees, the minimum wage will increase from $9.00 to $10.50. For fast-food establishments in New York City, the minimum wage will increase from $10.50 to $12.00 on December 31, 2016.

******* For employers within the state’s Urban Growth Boundary, the minimum wage increase on July 1, 2017 will be from $9.75 to $11.25. For employers in frontier counties, the minimum wage increase on July 1, 2017 will be from $9.50 to $10.00 per hour.

******** Seattle employers with 500 or more employees will see an increase in their minimum wage from $13.00 to $15.00 on January 1, 2017. The SeaTac minimum wage applicable for hospitality and transportation workers will increase from $15.24 to $15.35 as of January 1, 2017. In Tacoma, the minimum wage will increase from $10.35 to $11.15.

The minimum wage for federal contractors covered by those regulations and Executive Order 13658 (primarily those with Davis-Bacon Act and Service Contract Act contracts) will increase from $10.15 to $10.20 effective January 1, 2017.

Breaking News – Trump appoints Andrew Puzder to Secretary of Labor Position

Posted on: December 9th, 2016

mct_biz_cke-puzder-bizplus_2_laBy: Marty Heller

Donald Trump has nominated Andrew Puzder, CEO of CKE Restaurants (Hardees and Carl’s Jr.) as his Secretary of Labor. We believe this move represents a favorable change in direction for employers from the Department of Labor led by President Obama and current Secretary of Labor Thomas Perez.

So what will this mean for employers around the Country?

While it always is hard to predict a nominee’s future agenda, we believe it is safe to say that Mr. Puzder will be substantially more employer-friendly than those Labor Secretaries within the Obama administration and he will either relax some of the existing labor regulations imposed in the last eight years or attempt to roll them back altogether.

What does this mean for the proposed increase to the minimum salary for the white collar exemptions?

As we previously reported, the proposed regulations (which were supposed to be effective December 1) have been enjoined by a federal court in Texas. The Department of Labor is appealing that decision to the 5th Circuit Court of Appeals, but we do not believe that the appeals court will rule on that appeal before President Trump takes office on January 20, 2017. Once President Trump takes office, there is a reasonable likelihood that he will direct the Department of Labor to withdraw the appeal, leaving the current regulations in effect.

What type of impact will the Secretary of Labor have on others areas within his control?

The Secretary of Labor oversees many different divisions, but the Department of Labor’s Wage and Hour Division, OSHA (Occupational Safety and Health Administration), and the OFCCP (Office of Federal Contract Compliance Programs) are the biggest ones that directly affect employers.

As for OSHA, the administration has been very active in implementing new safety standards and reporting rules over the past 8 years. We expect that many of the recent changes will be reviewed quickly (within 6-12 months), and may be placed on the chopping block.

Mr. Puzder’s effect on the OFCCP is unclear. There have been significant regulatory and executive order changes made during President Obama’s tenure. At a minimum, we believe it is safe to say that the executive orders will be revisited (such as the Executive Order 13706, requiring federal contractors to provide paid sick leave), but any other changes are speculative at best.

*             *             *             *             *

The bottom line is that this should be a very good sign for employers, and a signal that the Department of Labor may return to compliance focused programs, with less emphasis on enforcement.

Court to Rule on Injunction to FLSA Final Rule Next Week

Posted on: November 17th, 2016

salaryBy: Marty Heller

As you may recall, on September 20, twenty one states filed a lawsuit in Texas seeking to enjoin the enforcement of the Department of Labor’s final rule increasing the minimum salary under the FLSA’s white collar exemptions.  Judge Amos L. Mazzant III held a hearing on the proposed injunction on November 16, and indicated that he would issue a ruling by November 22.  Of course, the rule is slated to go into effect on December 1.  As we previously have noted, it would be a surprise if the rule is enjoined or delayed.  We will provide an update as soon as a ruling is released. 

For any questions you may have, please contact Marty Heller at [email protected].

Fair Pay And Safe Workplaces Executive Order Enjoined (in part), For Now

Posted on: October 26th, 2016

court_0By: Marty Heller

On Monday, a federal judge in Texas granted an injunction against parts of the Fair Pay and Safe Workplaces Executive Order.  Essentially, the injunction will block enforcement of the Executive Order’s requirements that federal contractors disclose current and previous labor and employment law violations and suits, as well as its prohibition on the use of pre-dispute arbitration agreements.  The ruling does not have any effect on the paycheck fairness portion of the rule, which requires that federal contractors include information regarding overtime pay and exempt status on each paycheck and to provide independent contractors with a notice that they are being treated as an independent contractor.  These portions of the Executive Order still go into effect on all contract solicitations or contract amendments made on or after January 1, 2017. 

At this point, it is unclear whether the injunction will remain in place permanently throughout the underlying litigation.  It is also possible that the regulations implementing the Executive Order may be re-written to attempt to avoid the effect of the injunction.  We will continue to follow this litigation and will blog on any updates.