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To be exempt from the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA), an employee must perform certain duties and be paid on a “salary basis,” meaning that the employee receives a set salary each week, regardless of the number of days or hours worked, with limited exceptions. Under the FLSA, an employer may deduct from the pay of an exempt employee only under the following circumstances:

  • No work: When an exempt employee performs no work for an entire workweek, the employer is not required to pay the employee’s salary for that week.

The U.S. Department of Labor (DOL) issued an opinion letter on March 15, 2019 that answered the question of “whether an employer may delay designating paid leave as Family and Medical Leave Act (FMLA) leave or expand their FMLA leave beyond the statutory 12-week entitlement.” The DOL’s answer in short: No way.

On March 7, 2019, the U.S. Department of Labor (DOL) issued proposed rules that would update the salary threshold for the Fair Labor Standard Act’s (FLSA) so-called “white collar” or “EAP” exemptions from overtime. The importance of this issue for employers is tied to the fact that an employee must be paid on a salary basis at or above the DOL’s specified minimum weekly salary level in order to be exempt from the FLSA’s overtime pay requirements.  

What Changes

Currently, employees paid a weekly salary below $455 per week ($23,660 per year) are deemed non-exempt and must be paid overtime for all hours worked over 40 per week.

The partial federal government shutdown appears likely to continue into a second week, with no agreement on funding for the Department of Homeland Security, State Department, Justice Department and Interior Department, among other federal departments and agencies. For a second time this year, government contractors face the challenge of complying with a complex set of federal and state employment laws, while their federal contract work and workers remain idle. This article briefly identifies some of the issues affecting government contractors during the shutdown and provides guidance on how to navigate the issues.

Montgomery County, Maryland

Effective July 1, 2018, the minimum wage payable by employers in Montgomery County, Maryland, increased to $12.25 per hour, from the previous minimum wage rate of $11.50 per hour for large employers (those with 51 or more employees in the county). For mid-size employers (11 and 50 employees) and small employers (10 or fewer employees) the hourly minimum wage increased to $12.00. The minimum wage rate increases are part of a bill that was passed last year by the Montgomery County Council that will ultimately result in the minimum hourly wage in the county rising to $15.00 as of July 1, 2021 for large employers, July 1, 2023, for mid-size employers, and July 1, 2024 for small employers.

March 16, 2018
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Topics Employment

A previous blog post discussed sexual harassment in the workplace. This post discusses steps that an employer can take to avoid liability for sexual harassment, or at least minimize legal exposure.

1. Have a Sexual Harassment Policy

An employer should have a clearly articulated sexual harassment policy that:

  • expressly prohibits sexual harassment in the workplace;
  • defines and provides examples of sexual harassment;
  • establishes the scope of the policy in relation to employees and third parties; and
  • establishes a complaint procedure for victims or observers of sexual harassment. 

Just as many employers are heading into the 2018 summer-intern recruitment season, the U.S. Department of Labor (“DOL”) announced that it has abandoned the rigid six-factor test in use since 2010 to determine whether interns of for-profit entities must be treated as paid employees.  Under the DOL’s previous six-factor test, an intern was deemed to be an employee unless all six-factors were met, increasing the likelihood that an employer would end up having to pay its interns a minimum wage and overtime under the Fair Labor Standards Act (“FLSA”).

On January 12, 2018, Maryland became the latest state to require employers to provide paid sick leave to employees, when the Maryland General Assembly overrode Governor Larry Hogan’s veto of the bill last year. The bill - known as the Healthy Working Families Act - will become law on February 11, 2018, unless the General Assembly acts to delay its implementation.

Recently, the #MeToo movement has cast a spotlight on sexual harassment in the workplace. Despite the media focus on sexual harassment, there still seems to be a fair amount of confusion about what is and is not sexual harassment.

Simply put, sexual harassment is harassment based on an individual’s sex. For legal purposes, sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal, written or physical conduct of a sexual nature that:

  1. affects an individual’s employment,
  2. unreasonably interferes with an individual’s work performance, or
  3. creates an intimidating, hostile, or offensive working environment.
December 4, 2017
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Topics Employment

In October 2017, California became the latest in a growing list of states and localities to ban employers from asking job applicants about their salary histories, a list that includes: Massachusetts, Delaware, Oregon, Puerto Rico, San Francisco, Philadelphia and New York City. Similar legislation is currently under consideration in other states, including: Virginia, Maryland, New York, Rhode Island and Texas.

The new law expands California’s already existing equal pay provisions, which mandate equal pay, without regard to gender, for substantially similar work. Under the new law, an employer may not make an oral or written request of a job seeker for salary history information, either directly or through a third party agent. Nor may an employer use a job applicant’s prior salary history “as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant.” The term “salary history” also includes employee benefits.