September 2020 E-Update


Click here to view entire E-Update as a PDF


DOL Provides Guidance on Reimbursement for Business-Related Use of Personal Property

The U.S. Department of Labor recently released an opinion letter, FLSA2020-12, that offered employers guidance on the common issue of reimbursement of an employee’s use of personal property, such as a personal vehicle, for business purposes. Opinion letters respond to a specific employer’s inquiry, but may be relied upon by other employers with regard to the topic at issue. For more, click here.

DOL’s Proposed Rule Would Make It Easier to Achieve Independent Contractor Status

On September 22, 2020, the U.S. Department of Labor released a proposed Final Rule to provide guidance on the determination of whether a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). The proposed Rule would make findings of independent contractor status more likely, and it is almost certain to be challenged by worker advocates.  For more, click here.

NLRB General Counsel Details Employer Unfair Labor Practices During COVID-19 Pandemic

National Labor Relations Board (NLRB) General Counsel Peter Robb released GC Memo 20-14 summarizing unfair labor practice charges relating to the COVID-19 pandemic. The memo addresses cases sent to the Agency’s Division of Advice and which the Agency has issued a complaint or directed further investigation. For more, click here.

When Does a Neutrality Agreement Provide Unlawful Assistance to a Union? The NLRB GC Weighs In

National Labor Relations Board General Counsel Peter Robb issued guidance concerning how he will analyze whether a neutrality agreement provides unlawful assistance to a union, in violation of Section 8(a)(2) of the National Labor Relations Act.  For more, click here.


DOL Clarifies Application of Fluctuating Workweek for Purposes of Overtime Calculation.  In a recently-released opinion letter, FLSA2020-14, the U.S. Department of Labor provided some guidance on the use of the fluctuating workweek (FWW) method of calculating overtime.  For more, click here.

DOL Offers Insight on Highly Compensated Employee Exemption.  An opinion letter from the U.S. Department of Labor, FLSA2020-13, provided some illumination on certain aspects of the highly compensated employee (HCE) exemption to the requirement under the Fair Labor Standards Act to pay overtime for all hours worked over 40 in a workweek.   For more, click here.

EEOC Issues Opinion Letter Restricting Its Own Ability to Bring Suit. As we discussed in an E-Update earlier this year, the Equal Employment Opportunity Commission has recently begun issuing opinion letters, which have been used by other federal agencies, like the Department of Labor, to reflect official agency positions on topics of (more or less) general interest to businesses that may then be relied upon as official guidance. The EEOC’s second such Opinion Letter addresses its ability to bring pattern or practice claims under Title VII.  For more, click here.

Is Misuse of Information That An Employee Was Authorized to Access A Violation of the Computer Fraud and Abuse Act?   The U.S. Court of Appeals for the Sixth Circuit recently deepened a federal circuit split on what constitutes a violation under the Computer Fraud and Abuse Act (CFAA) in a situation involving employee misuse of confidential company information for personal gain.  For more, click here.

OFCCP Update for Government Contractors and Subcontractors. It has been an eventful month for government contractors and subcontractors, with a number of interesting actions from President Trump, as well as the Office of Federal Contract Compliance Programs.  For more, click here.

Employee on FMLA Leave Has Obligation to Communicate with Employer.   A recent case reminds employers that employees can be required to communicate with them while on Family and Medical Leave Act leave, and the failure to do so may jeopardize their employment.   For more, click here.

“Title VII claims require an employment relationship between plaintiff and defendant.”  The U.S. Court of Appeals for the Fifth Circuit confirmed that only employees – and not third parties – may bring claims under Title VII. For more, click here.

Who Has the Burden to Prove Whether Bonuses Should Be Included in the Regular Rate?  According to the U.S. Court of Appeals for the Fifth Circuit, the employee bears the burden, but not all the sister Circuits agree.  For more, click here.

D.C. Mandates on Workplace Posting and Notices, as well as Sexual Harassment Training and Reporting, Finally to Take Effect.    As we reported in our October 2018 E-Update, the District of Columbia had enacted a law imposing certain notice and posting requirements for all employers and broad new training and reporting obligations for employers of tipped workers. For more, click here.

Federal Court Recognizes Successor Liability Under Maryland Wage Payment Law.   Addressing a question not yet answered by the state courts, a Maryland federal court found that successor liability may exist for purposes of the Maryland Wage Payment and Collection Law (MWPCL) in the context of an asset purchase.  For more, click here.


TOP TIP: Employers – Be Accurate with Your Explanations and Your Paperwork!

A recent case from a Maryland federal court offers a simple but important lesson to employers – to be careful and accurate with regard to both explanations and paperwork for employment actions.  For more, click here.