Executive Order 14042 (the Order) generally requires federal agencies and executive departments to ensure that covered contracts and contract-like instruments include a clause that requires covered contractors (and subcontractors) to comply with COVID-19 safety protocol guidance published by the Safer Federal Workforce Task Force, including as it may be updated in the future.
On April 14. 2021, the U.S. Department of Labor (DOL) issued much needed guidance concerning best practices for plan sponsors, fiduciaries, record-keepers, participants and beneficiaries pertaining to cybersecurity for retirements plans. The DOL’s guidance focuses on three specific topics: hiring service providers; managing cybersecurity risks; and online security tips for participants to avoid risk of fraud and loss. Although the guidance was couched as “best practices,” it is reasonable to interpret it as creating minimum cybersecurity standards and practices for retirement plans. The guidance specifies the duty of plan fiduciaries to protect plan data against cybersecurity breaches and attacks, and potentially signifies a precursor for the DOL to assess liability for damages stemming from plan data breaches in the future. Although the guidance did not address health and welfare plans, those plans may also wish to consider implementing these measures.
On May 6, the U.S. Department of Labor (USDOL) withdrew its final regulations that would have revised the standard for determining whether a worker is an employee covered under the Fair Labor Standards Act (FLSA) or an independent contractor who is not subject to the FLSA’s minimum wage and overtime requirements. According to the USDOL, the independent contractor rule that was withdrawn “is inconsistent with the FLSA’s text and purpose, and would have a confusing and disruptive effect on workers and businesses alike due to its departure from longstanding judicial precedent.”
On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (ARPA) into law. Notably, the law did not create a new mandate of paid sick and family leave. Instead, the ARPA simply extended and expanded the availability of payroll tax credits for covered employers who voluntarily choose to continue offering “FFCRA” style paid sick and paid family leave.
On February 23, 2021, the U.S. Department of Labor (DOL) sent a proposed new regulation on joint employment status under the Fair Labor Standards Act (FLSA) to the White House for regulatory review. This action is indicative that new guidance will follow for determining joint employer status when an employee performs work that benefits more than one employer.
On Jan. 7, 2021, the U.S. Department of Labor (DOL) published its final rule to revise and update its regulations regarding classification of employees vs. independent contractors. This determination of independent contractor status is critical to wage liability, as employees are generally guaranteed minimum wage and overtime under the Fair Labor Standards Act—absent some exemption—while independent contractors are not.
On September 22, 2020, the U.S. Department of Labor (USDOL) issued proposed regulations regarding the determination of whether an individual is an employee under the Fair Labor Standards Act (FLSA) or an independent contractor who is not subject to the FLSA's minimum wage and overtime requirements. The proposed regulations are expected to be published in the Federal Register on September 25, and comments can be submitted for 30 days after publication. If the proposed regulations are adopted, it will likely be easier for businesses to classify employees as independent contractors under the FLSA.
On September 11, 2020, the United States Department of Labor (USDOL) issued revisions to the Temporary Rule it issued on April 1, 2020, implementing the employee leave provisions of the Families First Coronavirus Response Act (FFCRA). The revisions respond to the August 3 decision by the United States District Court for the Southern District of New York (District Court) that invalidated certain parts of the Temporary Rule. The revised regulations took effect on September 16, 2020.
In its August 3 decision, the District Court ruled that four parts of the Temporary Rule were invalid: (1) the requirement that an employee may only take FFCRA leave if there is work available from which to take leave; (2) the requirement that an employee may take intermittent FFCRA leave only with employer consent; (3) the definition of a “health care provider” whom an employer may exclude from taking FFCRA leave; and (4) the requirement that employees who take FFCRA leave must provide certain documentation to their employer prior to taking leave.
The Department reconsidered the portions of the Temporary Rule that the District Court held were invalid. It reaffirmed the regulations in part, revised the regulations in part, and provided further explanation of its rationale for its regulations.
Earlier this year, the United States Department of Labor (“USDOL”) issued new regulations regarding joint employment under the Fair Labor Standards Act (“FLSA”). Seventeen states (including New York) and the District of Columbia subsequently filed suit in the U.S. District Court for the Southern District of New York to challenge the USDOL’s adoption of its new joint employment regulations. The Court recently issued a decision in that lawsuit, holding that the USDOL's joint employment regulations relating to vertical joint employer liability should be vacated because they conflict with the definitions contained in the FLSA and are arbitrary and capricious.
On August 24, 2020, the United States Department of Labor (DOL) issued guidance to assist employers in complying with their obligation to track compensable hours of employees working in remote or telework arrangements. While this guidance was issued in response to the increase in remote work due to the COVID-19 pandemic, it applies to all employees working remotely for any reason.
On August 3, 2020, the United States District Court for the Southern District of New York held that the U.S. Department of Labor ("DOL") exceeded its statutory authority by promulgating certain regulations implementing the Families First Coronavirus Response Act ("FFCRA"). The FFCRA, which was enacted on March 18, 2020, is one of the major relief statutes passed by Congress in response to the COVID-19 pandemic. It contains two major provisions: (1) the Emergency Family and Medical Leave Expansion Act ("EFMLA"), which grants paid leave to employees who are unable to work because they must care for a dependent child due to the closure of the child's school or place of child care; and (2) the Emergency Paid Sick Leave Act ("EPSLA"), which requires covered employers to provide paid sick leave to employees for one of six qualifying COVID-19-related reasons.
The State of New York brought suit against the DOL pursuant to the Administrative Procedure Act, challenging several features of the DOL's regulations on the ground that they unduly restricted the paid leave available to employees under the statute. The Court, in large part, agreed with the State.
On June 8, the U.S. Department of Labor issued its final rule to provide some clarity for employers seeking to use the fluctuating workweek method of computing overtime compensation under the Fair Labor Standards Act. The final rule, which is essentially the same as the proposed rule that was issued on November 5, 2019, lists each of the five requirements for using the fluctuating workweek method separately and explicitly states that bonuses, premium payments, and other additional payments of any kind are compatible with the use of the fluctuating workweek method. The final rule becomes effective on August 7.
About one week after the USDOL's fluctuating workweek rule was issued, the Second Circuit Court of Appeals (the Federal appellate court with jurisdiction over employers in New York) issued a decision in the case of Thomas et al. v. Bed Bath & Beyond Inc. In the Bed Bath & Beyond case, the Second Circuit affirmed the dismissal of a collective action filed by a group of Department Managers who alleged that Bed Bath & Beyond had improperly used the fluctuating workweek method to pay them overtime.
