Do the DOL’s Proposed Revisions Apply to My Employees?


If you read my recent article, then you already know that the Department of Labor is proposing revisions to the Fair Labor Standards Act’s overtime exemptions applicable to white collar employees, i.e., those subject to certain exemptions from the federal minimum wage and overtime requirements. You also understand that the salary threshold for an employee to remain “exempt,” i.e., not entitled to overtime for hours worked over 40 per week, will likely be raised from $455 per week ($23,660 annually) to $970 per week ($50,440 annually) in 2016. In other words, you understand that the proposed rule changes more than double the annual salary required for an employee to be exempt from the FLSA’s requirements. What is less certain – are your employees among those “white collar” workers to whom this salary change will apply? Short answer: if you have any employees who you currently consider exempt from the FLSA, this rule touches […]

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Don’t Be Trigger Happy: Law Prohibits Employee Discipline for Storing Firearms in Vehicle


  You may recall that in 2013, Governor Haslam signed into law “Guns in Trunks,” which allowed Tennesseans with valid handgun carry permits to store and transport firearms and ammunition in their privately owned vehicle while on public or private property, subject to certain exceptions, such as areas otherwise prohibited by federal law, i.e., school zones, or in single-family dwellings. When the law first went into effect, a key concern for me was whether the statute would be interpreted to permit employer’s to continue to terminate employees in violation of a “no guns on company property” policy. As of April 6, 2015, the answer is officially “No.” On April 6, 2015, Governor Haslam signed into law a provision that adds to the protections previously provided by “Guns in Trunks.” Under the new provision, Tennessee law prohibits employers from terminating employees solely because they have a firearm or firearm ammunition stored […]

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The Proposed DOL Rule Changes – What You Need to Know & How to Prepare


The Department of Labor’s proposed rule changes to the Fair Labor Standards Act (“FLSA”) has enveloped the blogosphere of late. Here, I am breaking the changes down to their most basic for business owners – giving you the information you need to know and suggestions for appropriate response. First, the basic background – what you should already know: The FLSA establishes minimum wage and overtime pay for employees in the private sector and in Federal, state, and local governments. Some employees are “exempt” from the FLSA, meaning that they are not entitled to overtime pay for hours worked over forty (40) per week. Covered non-exempt employees are entitled to minimum wage of not less than $7.25 per hour. Covered non-exempt employees are entitled to overtime of at least one and one-half times their regular rate of pay for any hours worked over forty (40) in a given workweek. The FLSA does not require employers […]

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Welcome, Interns? Revisit Your Summer Workers’ Job Classification


Last week, the Second Circuit joined the Sixth Circuit (which covers federal courts in Tennessee) in rejecting the Department of Labor’s six-factor test for classifying workers as interns versus employees.  With this decision, and given that it is the season of interns throughout our state, let’s review whether your business is using lawfully unpaid interns or failing to pay workers that should be classified as employees minimum wage and overtime as required by the Fair Labor Standards Act. In the Sixth Circuit, and now the Second Circuit, courts apply the “primary benefit” test to determine whether a worker is truly an “intern.”  As explained recently by the Second Circuit Court in its seminal decision of Glatt v. Fox Searchlight Pictures, better known as the “Black Swan” case, “the proper question is whether the intern or the employer is the primary beneficiary of the relationship.” As the Sixth Circuit previously explained, “[f]actors such as whether […]

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Avoiding an Uber Mistake: Misclassification of Employees as Independent Contractors


These days, we can be connected with drivers, grocers, home cleaners, dog walkers, etc., with the click of an App. Aside from convenience and the comfort of a background check, consumers are little concerned with the mechanisms behind this business-worker relationship. Businesses, on the other hand, should be on high alert to avoid an uber misclassification (I know, punny). Most of us have “Ubered” by now – calling on the App to find us a fancy, black sedan or SUV for convenient transportation. With service in over 311 cities and 58 countries, Uber is gaining massive success. However, the company received unwanted attention when, on June 3, 2015, the California Labor Commission held that Barbara Berwick, a former Uber driver, was not an independent contractor with Uber, but rather, was an employee, entitled to all of the benefits associated therewith. As part of her claim, Ms. Berwick requested lost wages […]

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