The Wage and Hour Division of the U.S. Department of Labor (DOL) held public listening sessions on October 30, 2018 to gather views on the Part 541 white collar exemption regulations, the 2016 “Overtime Rule.” Sessions were held in Atlanta, GA, Seattle, WA, Kansas City, MO, Denver, CO, Providence, RI, and Washington DC. A review of the actual transcripts reveals that many different interests presented comments, including human resource professionals, small business, nonprofits, employees, employers, attorneys, and large businesses. Full renditions of the transcripts by city can be found here.

The DOL posed these questions for addressing at the Listening Sessions: Continue Reading Key Takeaways from the Recent Overtime Rule Listening Sessions

Haynsworth Sinkler Boyd’s Employment Group is pleased to announce the schedule for our upcoming Employment Law Seminars.
HR professionals are invited to join us for a program that will cover current issues in Employment law in a fast-paced, plain-English way. These complimentary seminars qualify for 3.0 hours of continuing education credit with CLE, SHRM and HRCI credits available.

Continue Reading Join us for our upcoming Employment Law Seminars

On January 5, 2018, the United States Department of Labor announced that, going forward, it would utilize the “primary beneficiary” test for determining whether interns are employees under the FLSA, consistent with recent rulings from appellate courts. Its updated Fact Sheet #71, a copy of which is linked here, explains the test, which examines “the ‘economic reality’ of the intern-employer relationship to determine which party is the ‘primary beneficiary of the relationship.” Fact Sheet #71 outlines 7 factors that courts should apply on a fact specific basis in making this determination, with no single factor being dispositive:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

This test replaces the older 6 factor test contained in Fact Sheet #71, which some courts had rejected as too rigid. While this guidance from the DOL is persuasive, rather than binding, authority, it should be noted that a version of the “primary beneficiary” test was already being applied by the Fourth Circuit Court of Appeals, at least in the context of whether trainees constitute employees. The adoption of this test by the DOL provides additional support for the application of it by the Fourth Circuit Court of Appeals and District Court for the District of South Carolina.

Haynsworth Sinkler Boyd’s Employment Group is pleased to announce the schedule for our upcoming Employment Law Seminars.
HR professionals are invited to join us for a program that will cover current issues in Employment law in a fast-paced, plain-English way. These complimentary seminars qualify for 3.0 hours of continuing education credit with CLE, SHRM and HRCI credit available.
Our attorneys will present on the following topics:
  • LGBTQIA: What Human Resource Professionals Need to Know
  • Immigration Law Update
  • Politics in the Workplace
  • Wage & Hour update
  • Recent Trends with the ADA
  • DOR & the Unemployment Insurance Tax Rate
Join us for one of our seminars in a location near you:
November 30 – Hood Center, Rock Hill
8:30 am – 12:00 pm
Click here for details and to register.
December 5 – Marina Inn Grande Dunes Myrtle Beach
8:30 am – 12:00 pm
Click here for details and to register.
December 6 – SiMT Florence 
8:30 am – 12:00 pm
Click here for details and to register.
Please contact Keely Yates for additional information.
Haynsworth Sinkler Boyd’s Employment Group is pleased to announce the schedule for our upcoming Employment Law Seminars.
HR professionals are invited to join us for a program that will cover current issues in Employment law in a fast-paced, plain-English way. These complimentary seminars qualify for 3.0 hours of continuing education credit with CLE, SHRM and HRCI credit available.
Our attorneys will present on the following topics:
  • LGBTQ: What Human Resource Professionals Need to Know
  • Immigration Law Update
  • Politics in the Workplace
  • Wage & Hour update
  • Recent Trends with the ADA
  • DOR & the Unemployment Insurance Tax Rate
Join us for one of our seminars in a location near you:
October 24 – North Charleston DoubleTree Hotel
1:00 – 5:00 pm
Click here for details and to register.
October 25 – HSB Columbia Conference Center
8:30 am – 12:00 pm
Click here for details and to register.
November 30 – Hood Center, Rock Hill
8:30 am – 12:00 pm
Click here for details and to register.
December 5 – Marina Inn Grande Dunes Myrtle Beach
8:30 am – 12:00 pm
Click here for details and to register.
December 6 – SiMT Florence 
8:30 am – 12:00 pm
Click here for details and to register.
Please contact Keely Yates for additional information.

By now, employers are certainly well aware that on November 22, 2016, a federal judge in Texas issued a preliminary injunction that effectively prevented the implementation and enforcement of the new Department of Labor (“DOL”) regulations regarding the exemptions from overtime for bona fide executive, administrative, or professional (“EAP”) employees. See Nevada, et. al. v. U.S. Department of Labor, et. al., 218 F. Supp. 3d 520, 534 (E.D. Texas 2016).  As we previously blogged, the November 22nd ruling was not final and was effective “pending further order” of the court.

That “further order” came on August 31, 2017, when the same federal judge who issued the November 22, 2016 order issued a final ruling concluding that the new regulation “is invalid.” The judge determined that Congress intended the EAP exemption to apply to employees who perform executive, administrative, or professional duties, and that the new regulation fails to carry out that intent because it improperly uses a salary-level test that effectively eliminates the “duties” test.

It should be noted that the November 22, 2016 ruling is still on appeal with the Fifth Circuit, and the August 31, 2017 ruling is also subject to being appealed. However, the DOL has indicated that it does not intend to pursue the salary level of $913 per week that was a part of the new regulation.  As noted in our blog post dated July 26, 2017, the DOL has requested notice and comment before issuing a revised proposed regulation.  It will be interesting to see how the court’s treatment of the duties test in the August 31, 2017 ruling impacts the DOL’s revised proposed regulation regarding the EAP exemption.