Mid-Year 2024: Labor + Wage/Hour
The Department of Labor and the National Labor Relations Board have each sought to reshape the contours of the employment relationship through rulemaking, redefining who is an “employer” under the National Labor Relations Act (NLRA) and who is an “employee” under the Fair Labor Standards Act (FLSA). The NLRB issued a rule defining when an entity is a “joint employer” of a group of employees under the NLRA. The DOL enacted a rule defining “employee” vs. “independent contractor” under the FLSA. Both rules can mean greater liability for employers under the respective statutes.
Meanwhile, the DOL revised the salary criteria for defining who is “exempt” under the executive, administrative, and professional (EAP) exemptions from the FLSA’s minimum wage and overtime requirements. A sharp, two-step increase in the salary threshold leaves employers to grapple with the difficult choice of raising the salaries of exempt employees who fall below the new thresholds or reclassifying them as non-exempt.
These agency actions have faced a flurry of legal challenges. Although the DOL rules are currently in effect, numerous ongoing lawsuits seek to invalidate them. And a federal court blocked the NLRB rule before it got out of the gate. The NLRB has filed an appeal, however, hoping to resurrect its rule.
The takeaways below can help employers comply with the regulatory changes and manage the legal risks.
Host: Jeffrey W. Brecher, Principal and Wage and Hour Co-Leader
Podcast
“It’s an interesting point in the sense that the FLSA does not specify a particular salary requirement at all. It is a requirement that the Department of Labor imposed early on when the FLSA was passed in 1938. But the statute itself doesn’t say anything specifically about any salary requirement or salary level requirement.”
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