Fair Labor Standards Act

On January 6, 2020, Governor Ned Lamont signed bipartisan legislation addressing rates of pay for restaurant workers. The Governor vetoed a previous version of the bill which would have applied retroactively and effectively ended the viability of approximately two dozen pending minimum wage lawsuits. The new law does not apply retroactively, allowing the pending minimum wage suits to proceed.

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For the first time in sixty years, the U.S Department of Labor is substantively revising the regulation that articulates when two people or businesses are “joint employers” of an employee under the Fair Labor Standards Act (FLSA).  The final version of Joint Employer Status under the FLSA will be published this Thursday, January 16, and is effective on March 16, 2020.  See 29 CFR Part 791.  The unpublished version is available here.  The revisions are meant to “reduce uncertainty over joint employer status, promote greater uniformity among court decisions, reduce litigation, and encourage innovation in the economy.”  Franchise chains, temp agencies, and businesses that outsource their workforces are among those that will benefit from the revised rule.

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The Department of Labor announced its return from winter vacation this week by issuing three new opinion letters.  Two of the letters address Fair Labor Standards Act (“FLSA”) payment calculation issues; the other deals with the applicability of the Family and Medical Leave Act (“FMLA”) to a special health district.

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Earlier this year, we blogged about the United States Supreme Court’s decision to consider whether requiring employees to agree to arbitration and a waiver of their rights to assert claims through class actions violated the National Labor Relations Act (NLRA).  During the Obama administration, the U.S. Department of Justice supported the position of the National Labor Relations Board (NLRB) that requiring class action waivers as a condition of employment violated the NLRA.  Now, the Justice Department has switched sides and is supporting business, acknowledging in an amicus brief filed with the Supreme Court on June 16 that “[a]fter the change in administration, . . . [it] reconsidered the issue and has reached the opposite conclusion.”
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