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New Overtime Rules, Labor Relations Consultants Rule, Classwide Liability, Family and Medical Leave Act, Whistleblower Retaliation Rule

We invite you to view Employment Law This Week - a weekly rundown of the latest news in the field. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode! 

This week’s stories include ...

(1) DOL's New Overtime Rules Coming Soon

The U.S. Department of Labor (DOL) recently took its final step toward new overtime thresholds. The agency’s rules, which could go into effect as early as this summer, will end overtime exemption status for millions of workers and cost employers as much as $250 million this year. The DOL recently submitted the proposed Fair Labor Standards Act (FLSA) regulations to the Office of Management and Budget, taking the last step before they go into effect. 

(2) DOL Releases Final Rule on Labor Relations Consultants

The DOL has also published its controversial final rule concerning labor relations consultants. The so-called “Persuader Rule” requires employers to disclose when they hire a consultant to help fight attempts at unionization. But the rule, as written, is potentially much broader and could require employers to disclose information about a wide range of consultants and others on whom they rely for training and communication. 

(3) High Court Says Statistical Analysis Can Establish Classwide Liability

The U.S. Supreme Court recently eased class certification standards in a case against Tyson Foods. In Iowa, a group of Tyson employees brought a hybrid class and collective action for unpaid overtime spent changing clothes and walking to their work area. An expert determined the average amount of time spent on those activities, and the employees relied on those averages to get class certified and prove liability and damages. On appeal, Tyson argued that the employees should never have been grouped into a single class, because each employee took different amounts of time for the unpaid activities. But the Supreme Court ruled that this representative sample could be used to establish classwide liability, and the case will move forward in the district court. 

(4) Second Circuit Holds That HR Director Is an “Employer” Under the Family and Medical Leave Act

A worker at the Culinary Institute of America alleged that a human resources (HR) director wrongly denied her request for family and medical leave to care for her two sons. A New York district court dismissed the employee's Family and Medical Leave Act (FMLA) claim against the HR director, ruling that an individual manager did not qualify as an employer. The Second Circuit disagreed, ruling that the “economic reality” test used under the FLSA also applies under the FMLA. The Second Circuit found that, under this test, the HR director could be considered an employer and held liable for any violation of the FMLA.

(5) OSHA’s Final Rule on Whistleblower Retaliation

The Occupational Safety and Health Administration (OSHA) released its final rules for whistleblowers under the Consumer Financial Protection Act of 2010 (CFPA). The CFPA is a portion of the Dodd-Frank Wall Street Reform and Consumer Protection Act that protects workers involved in consumer financial products and services. OSHA's new rules establish procedures and timelines for retaliation complaints under the CFPA. This is the latest in a series of new standards from OSHA expanding whistleblower protections.

(6) In-House Tip of the Week

Victoria Richter, Vice President and Counsel for Deutsche Bank, offers advice on Executive Order 13665, which promotes pay transparency and recently went into effect.

©2022 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume VI, Number 88
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About this Author

Marc A. Mandelman, Epstein Becker Green, Workforce Management Lawyer, Restructuring Strategy Attorney
Member

MARC A. MANDELMAN is a Member of the Firm in the Employment, Labor, and Workforce Management practice, in the New York office of Epstein Becker Green. He represents a variety of clients—including major corporations in the financial, insurance, fashion, retail, publishing, technology, and health care field—in all aspects of labor and employment relations.

Mr. Mandelman:

  • Routinely advises clients on designing and implementing restructuring strategies and the management of litigation risks associated with...

212-351-5522
George Carroll Whipple III, Epstein Becker Green, Workforce Management Lawyer, Hiring Matters Attorney
Member

GEORGE CARROLL WHIPPLE, III, is a Member of the Firm in the Employment, Labor, and Workforce Management practice, in the New York office of Epstein Becker Green. He hosts the firm's innovative weekly video program, Employment Law This Week.

Mr. Whipple:

  • Counsels employers on workplace issues, including hiring and promotion, firing and discipline, wage and hour, and the implementation of employment policies, to ensure compliance with federal and state laws

  • ...
212-351-3773
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