Labor Law Journal » Federal Employment Law » March 2010

Federal Employment Law: DOL Finds Mortgage Loan Officers are not Exempt Administrative Employees.

2010-03-31T01:00:00-04:00

The U.S. Department of Labor (DOL) recently issued an Administrator Interpretation stating that employees who perform the usual duties of mortgage loan officers are not exempt from the Fair Labor Standards Act's (FLSA) minimum wage and overtime requirements. The DOL determined that these employees do not meet the requirements of the administrative employee exemption because their primary duty is selling mortgage loan products, which does not relate to the internal management or general business operations of the employer. According to the DOL, mortgage loan officers' duties involve the day-to-day carrying out of a financial service company's marketplace offerings and, "thus, fall squarely on the production [rather than administrative] side of the business."

Federal Employment Law: Recent USCIS Memo on Employer-Employee Relationship Requirements for H-1B Visa Petitions: Regulation by Memorandum?

2010-03-30T01:00:00-04:00

Donald Neufeld, Associate Director or Service Center Operations for the United States Citizenship and Immigration Service (USCIS) recently issued a guidance memo to its adjudication officers, Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third Party Site Placements ("Neufeld Memo" or "Memo"). The Memo clarifies what constitutes a valid employer-employee relationship, in the context of petitions for H-1B visas, which are commonly used by IT staffing agencies and consulting groups for placing skilled workers at third-party worksites.

Federal Employment Law: Department of Labor Reverses Course: Mortgage Loan Officers Do Not Meet the Administrative Exemption's Requirements.

2010-03-30T01:00:00-04:00

On March 24, 2010, the Department of Labor (DOL) abandoned its position on the exempt status of mortgage loan officers as "administrative" employees, vacating an Opinion Letter issued by the Wage and Hour Administrator less than four years ago on September 8, 2006.1 In its earlier September 2006 Opinion, the DOL found that mortgage loan officers generally meet the requirements of the administrative exemption to the federal Fair Labor Standards Act's overtime requirements if they are responsible for acquiring an understanding of a potential borrower's credit history and financial goals in order to advise the borrower regarding loan options; working with the borrower to create a loan package that best meets those goals while complying with lender requirements; and supervising the processing of the transaction to closing. In a new "Administrator's Interpretation,"2 the DOL has now

Federal Employment Law: Employers Should Be Cautious of New Decision Holding That Severance is Not "Wages" Subject to FICA.

2010-03-30T01:00:00-04:00

In United States v. Quality Stores, Inc.,1 a federal district court in Michigan held that severance payments were not wages subject to Social Security and Medicare taxes ("FICA" taxes). This decision appears to conflict with a decision of the Court of Appeals for the Federal Circuit. It also is likely to be challenged by the Internal Revenue Service (IRS). Businesses have reason to be cautiously optimistic, but should be hesitant to stop reporting FICA on severance payments until a more conclusive outcome is reached. Nonetheless, employers that have paid severance in recent years should consider filing protective refund claims with the IRS in order to preserve their rights.

Federal Employment Law: FLSA Now Requires Breastfeeding Breaks and a Place to Take Them.

2010-03-30T01:00:00-04:00

The Patient Protection and Affordable Care Act signed last week by President Obama will affect employers in numerous ways, many of which have not yet been explored in detail, owing to the newness of the law. One provision of the law that is certain to have a very real impact on employers across the country but that we have heard virtually nothing about is Section 4207. Section 4207, titled, Reasonable Break Time for Nursing Mothers amends the Fair Labor Standards Act (FLSA). Because it is born to the FLSA, its provisions apply to almost all employersevery employer engaged in interstate commerce of at least $500,000 per year, hospitals, businesses providing medical or nursing care for residents, schools and preschools, and government agencies.

Federal Employment Law: Business Not As Usual At Wage Hour Division.

2010-03-30T01:00:00-04:00

Since President Obamas inauguration approximately 14 months ago, the Wage and Hour Division of the U.S. Department of Labor had seemed to be asleep: it had issued not a single opinion letter related to the Fair Labor Standards Act. This week, the sleeping giant finally awoke, and employers are unlikely to be pleased with the result. The Division announced that it would be departing from its longstanding practice of publishing opinion letters to provide fact-specific guidance to employers and employees. In the future, requests for opinion letters will be responded to by providing references to statutes, regulations, interpretations and cases that are relevant to the specific request, but without an analysis of the specific facts presented. The Division also withdrew a September 2006 opinion letter that had been favorable to finance industry employers regarding the exempt status of mortgage loan officers and similar positions.

Federal Employment Law: Retaliation and the FLSA: U.S. Supreme Court Grants Cert

2010-03-26T01:00:00-04:00

Wage-and-hour lawsuits filed under the Fair Labor Standards Act (FLSA), are the hottest thing going for plaintiffs lawyers. And a worst-case scenario for an employer named as a defendant. FLSA cases can be very difficult to defend; the law imposes what is almost strict liability under most circumstances. So, when a court issues a decision in favor of an employer, it is worthy of notice. And when the U.S. Supreme Court grants certiorari of such a decision, its definitely worthy of notice.

Federal Employment Law: More Men Filing Sexual Harassment Claims.

2010-03-26T01:00:00-04:00

I cant say that Im surprised, especially in light of the parallel increase in the number of males who have been laid off or terminated for economic reasons. The unavoidable reality is that individuals are more likely to file a claim or a lawsuit when theyre out of work and, especially, when work is hard to find. Since September 2008, twice as many men have lost their jobs as compared to women. Which could explain the 12% increase in harassment claims brought by men since 2006.

Federal Employment Law: Class Actions: Employment and Civil Rights.

2010-03-26T01:00:00-04:00

Predominance and Related Issues Under Rule 23A Vehicle to Rationalize Class Action Jurisprudence; Sixth Circuit Affirms Denial of Class Action Raising Retiree Medical Benefits; Federal Jurisdiction Remains Under CAFA After Class Certification Denied.

Federal Employment Law: OFCCP Update.

2010-03-26T01:00:00-04:00

As promised, OFCCP Director Patricia Shiu has ramped up enforcement for covered contractors and has expanded the focus of compliance reviews to include a detailed review of contractors' compliance with Section 503 of the Rehabilitation Act and VEVRAA.