The DOL Abandons Rigid Six-Factor Intern Test and Adopts Court-Favored Approach

Author: Karly B. Johnson

On January 5, 2018, the Department of Labor (“DOL”) adopted a more lenient standard for assessing whether interns qualify as employees under the Fair Labor Standards Act (“FLSA”).   Continue reading


The National Labor Relations Board Caps a Busy Week by Throwing Out Micro-Unit Bargaining Units And Returns To Decades-Old Test for Implementing Changes During an Expired Contract

On the heels of Thursday’s groundbreaking decisions reversing Browning-Ferris and Lutheran Heritage Village-Livonia (see our 12/15 alert here), in another important decision on Friday, the National Labor Relations Board scrapped the Obama-era decision, Specialty Healthcare, 357 NLRB 934 (2011), which made it far easier for unions to organize subsets of a company’s employees – in effect cherry-picking a group favoring organization as a way of getting foot in the door. The smaller units proposed by employees and unions protected by Specialty Healthcare are commonly referred to as “micro-units.”

Continue reading

Change is Coming: New NLRB General Counsel Issues Memorandum Rescinding Controversial Policies and Signaling Change

The National Labor Relations Board’s new General Counsel, Peter Robb, has made the most of his first month in office.  Robb, who was nominated by President Trump to replace controversial predecessor Richard Griffin, was sworn in on November 17.  Now still in the first month of his four-year term, Robb has issued Memorandum GC 18-02: a directive to the Board’s Regional Directors and other officers that makes several critical and immediate changes to Board policy. Continue reading

House of Representatives Passes Legislation Limiting Joint-Employer Liability and Reversing Browning-Ferris

On November 7, the House of Representatives voted to pass a bill that would reverse the National Labor Relations Board’s (“NLRB”) ruling in Browning-Ferris Industries, 362 NLRB No. 186 (2015), that greatly expanded joint employer liability for business. Under Browning-Ferris, the NLRB held that a company that has “indirect” or “potential” control over the employees of another company may be considered a joint employer of those employees. That decision is currently on appeal before the D.C. Circuit Court of Appeals. Continue reading

Asking Employment Applicants for Their Salary History Soon Illegal in California

Authors: Joe Gross and Jackie Staple

“What did you make at your last job?” is becoming another question prospective employers cannot ask in more and more places.  Effective January 1, 2018, California public and private employers will not legally be allowed to ask applicants about their salary history and must provide a position’s pay range if asked.  The bill, signed into law on October 12, 2017, makes it illegal for employers to rely on an applicant’s salary history in deciding whether to offer employment or in setting a salary.  The bill also prohibits employers from seeking out an applicant’s salary history from outside sources, such as public records or the Internet.  An applicant can still voluntarily disclose her salary history, as long she is not responding to the employer’s prompting; but the employer can only use the information for limited purposes. Continue reading

The Obama Administration’s Overtime Final Rule: Unlawful and Revisited

On October 30, 2017, the Department of Labor (the “Department”) filed a notice to appeal a decision by Judge Amos Mazzant of the Eastern District of Texas, holding that the Overtime Final Rule (“Final Rule”) was unlawful. The Department announced that once the appeal is docketed, the Department of Justice will file a motion with the United States Court of Appeals for the Fifth Circuit to hold the appeal in abeyance while the Department revisits the Final Rule and undertakes further rulemaking.

The Final Rule was set to be effective on December 1, 2016. Over 55 business groups and 21 states challenged the Final Rule by filing actions, which were consolidated, in the United States District Courts in Texas. State of Nevada v. United States Department of Labor, No. 4:16-cv-731; Plano Chamber of Commerce v. Acosta, No. 4:16-cv-732.

On November 22, 2016, Judge Mazzant granted the State Plaintiff’s Motion for Preliminary Injunction, thereby enjoining enforcement of the Final Rule on a nationwide basis. The Department filed a notice to appeal the injunction, but the Department did not actively defend the Final Rule after President Trump took office.

Also pending before Judge Mazzant was Business Plaintiff’s Motion for Summary Judgment regarding the validity of the Final Rule. On August 31, 2017, the judge issued an opinion and order holding that the Final Rule was unlawful. Judge Mazzant concluded that the Department did not have the authority to use solely a salary-level test to affect changes to the overtime exemption of employees functioning in bona fide executive, administrative, or professional capacities. According to Judge Mazzant, it was Congress’ intent to exempt from overtime pay employees who perform “bona fide executive, administrative, or professional capacity” duties. Thus, the Department had to also consider the duties of employees employed in bona fide executive, administrative, or professional capacities in making changes to the availability of the exemption.

A few changes that the Final Rule, now invalid, would have made if enacted include: (1) an increase of the annual salary threshold for an overtime exempt position to $47,476; (2) an automatic updating mechanism that adjusts the minimum salary level every three years[1]; (3) the use of nondiscretionary bonuses to satisfy up to 10% of the general salary threshold (if incentives were made on a quarterly or more frequent basis); and (4) an increase of the annual highly compensated employee’s salary threshold from $100,000 to $134,004.

Looking Forward: Employers should note that the Final Rule will not take effect for now but should seek counsel regarding this issue. Given that the DOL will be conducting further rulemaking, the Final Rule likely will not survive as written. We will continue to monitor developments on this issue and provide an update.

For more information on this subject, please contact a member of Benesch’s Labor & Employment Practice Group.

Peter Kirsanow at or 216.363.4481.

Nancy Chawla at or 216.363.4549.

[1] Because the Court determined that the Final Rule was unlawful, the Court also held that the automatic updating mechanism was unlawful.

Continue reading

DOL Requests Extension of Final Disability Claims Rule To April 1, 2018

By: Joseph P. Yonadi, Jr.

On October 10th the Department of Labor (DOL) proposed to extend by 90 days the applicability date for the Final DOL Claims Procedure Regulations (Rule) from January 1, 2018 to April 1, 2018.

At the beginning of this year, the Final Rule went into effect on January 1, 2017.  However, the applicability was set for January 1, 2018 in order to give enough time to plan sponsors and claims administrators to update their claim procedure processes caused by the Rule.  Please see the Benesch Law Client Bulletin explaining the changes contained within the Rule here. Continue reading

EEO-1 Pay Data Collection Suspended Indefinitely

Employers can breathe a sigh of relief. On August 29, 2017, the Equal Employment Opportunity Commission’s (EEOC) Acting Chair announced that the Office of Budget Management (OBM), per its authority under the Paperwork Reduction Act (PDA), had immediately stayed the EEOC’s pay data collection components of its EEO-1 Report, also known as the “Employer Information Report,” that was to otherwise become effective on the next filing deadline of March 31, 2018. Continue reading

D.C. Circuit Provides Additional Support For Specialty Healthcare, Union-Friendly Micro-Units

The U.S. Court of Appeals for the D.C. Circuit has sided with the National Labor Relations Board in affirming the union-friendly practice of “micro-unit” organizing.  The D.C. Circuit’s opinion issued in Rhino v. NLRB is unwelcome news for employers who were hoping the federal appellate court would reject the organizing practice made possible in 2011 when the Board issued its controversial Specialty Healthcare decision.  Continue reading