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Q: Do Trump-era FLSA regulations governing independent contractor classification and joint employer status (still) apply?

A: The U.S. Department of Labor (USDOL) announced its decision to reverse a Trump-era rule governing the employee/independent contractor distinction under the Fair Labor Standards Act (FLSA) that was scheduled to go into effect on March 8. The decision comes on the heels of another recent announcement by the Biden administration that requested public comment about its intention to rescind the Trump-era regulations governing joint employment under the FLSA, which went into effect in March 2020. Both reversals have significant implications for whether a company is considered an employer under the FLSA and thus subject to minimum wage, overtime, and recordkeeping requirements under the statute.…
Continue Reading Biden Administration Eliminates Key Trump-Era Regulations for Employment Relationships Under FLSA

Q: Are outside sales employees considered exempt under the outside sales exemption (OSE) if they work from a home office during the pandemic?

A: Throughout the last 11 months, the pandemic has required most in-person business activity to go virtual; and this is no less true for employees working in sales. However, Zoom meetings and social distancing have made it challenging for employers to classify their sales force as exempt under the OSE of the Fair Labor Standards Act (FLSA).

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Continue Reading FLSA Exemptions for Outside Sales Employees in the Era of Social Distancing

On July 27, 2020, the Virginia Department of Labor and Industry (DOLI) adopted a first-of-its-kind statewide regulation mandating all employers adopt varying levels of safeguards to combat the COVID-19 pandemic. In this advisory, we will address a number of the compliance questions employers face regarding the Virginia Occupational Safety and Health (VOSH) Emergency Temporary Standard (ETS) and outline the rule’s more prominent features. While in many respects the ETS adopts existing CDC/OSHA guidance and Governor Northam’s executive orders, there are important distinctions. The ETS is more than 40 pages, but we will address its core provisions, which require employers to engage in the following:…
Continue Reading Virginia Issues New COVID-19 Occupational Health and Safety Rules

Q. Have there been any changes to the CDC Guidance on testing?

A. Until late July, the CDC offered a test-based or symptom-based strategy to govern the timing of “discontinuing isolation” for a person known or suspected to be infected with COVID-19. In an abrupt change in guidance, the CDC announced a test-based strategy is no longer recommended to determine when to discontinue home isolation, except in certain circumstances. The CDC now recommends following only a modified symptom-based strategy, which means:…
Continue Reading COVID-19 Testing No Longer Generally Recommended for Discontinuing Isolation, CDC Says

It is hard to overstate the significance of the employment law changes going into effect as of July 1, 2020. As Virginia employers presently consider how to return to work following an unprecedented global pandemic, they will soon meet the added challenge of a radically different legal landscape governing employment matters. The affected areas of Virginia employment law are broad, covering wage and hour laws, employee misclassification, LGBTQ rights, employment thresholds for coverage under anti-discrimination laws, and expanded whistleblower protections. Whereas, Virginia was once considered a State where employee rights were extremely narrow, effective July 1, it will have some of the broadest protections available for employees to assert their rights. The following is a summary of the more significant laws going into effect.…
Continue Reading Virginia Employers Brace for Seismic Changes in Employment Laws Effective July 1, 2020