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On Tuesday, the U.S. Department of Labor (DOL) released a final rule, “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees,” which significantly raises the salary thresholds for exemption from overtime pay for bona fide executive, administrative, and professional employees.Continue Reading New DOL Rule: Changes to Salary Thresholds for Overtime Exemptions

Q: Can Fourth Circuit plaintiffs be granted “surcharge” as a remedy for breach of fiduciary duty under ERISA?

A: Not anymore. In a divided-panel opinion issued Tuesday, September 12, in Rose v. PSA Airlines, Inc., 2023 WL 5839282, — F.4th — (2023), the Fourth Circuit narrowed the scope of remedies available to plaintiffs in ERISA breach of fiduciary duty claims in this circuit. In short, the Fourth Circuit held that “surcharge” is not an available remedy. Instead, monetary recovery under 502(a)(3) is only available when a plaintiff points to specific funds that the plaintiff rightfully owned but that the defendant possesses as a result of unjust enrichment. This is a reversal of prior Fourth Circuit decisions, which had previously authorized recovery of surcharge as a form of “appropriate equitable relief” under § 502(a)(3).Continue Reading Can Fourth Circuit Plaintiffs be Granted “Surcharge” as a Remedy for Breach of Fiduciary Duty Under ERISA?

Q: Are student athletes considered employees under the Fair Labor Standards Act (FLSA)?

A: Not under current law, but it is widely suspected that before long, courts will deem at least some types of student athletes to be employees under the FLSA. Courts determine whether an employment relationship exists under the FLSA by looking at whether the “economic realities” of the relationship are consistent with employment (although there is no agreement among the circuit courts of which test best determines these economic realities). In the 2021 decision NCAA v. Alston, the Supreme Court characterized student athletes as participants in a labor market for purposes of federal antitrust laws. The Alston opinion left little reason to doubt that the Court would arrive at the same conclusion when considering the “economic reality” of student athletes as employees under the FLSA. The bigger question is where the Court will ultimately draw a line to separate student athlete-employees from truly amateur sports. The Third Circuit is currently considering an appeal that raises this very question, which may be the vehicle by which this appears before the Supreme Court.Continue Reading Are Student Athletes Considered Employees Under the Fair Labor Standards Act?

Q: Does the Speak Out Act affect employer nondisclosure and nondisparagement agreements?

A: Nearly five months after Senator Kirsten Gillibrand (D-NY) first introduced the bipartisan Speak Out Act, President Joe Biden signed it into law on December 7, 2022. The Speak Out Act bars judicial enforcement of nondisclosure and nondisparagement clauses concerning sexual assault and sexual harassment allegations if entered into “before the dispute arises.” This ensures that “victims and survivors have the freedom to report and publicly disclose their abuse,” while still allowing employers to use nondisclosure and nondisparagement clauses in resolving a dispute once it has arisen.Continue Reading Biden’s “Speak Out Act” Bars Use of Nondisclosure and Nondisparagement Agreements to Restrict Sexual Harassment and Sexual Assault Allegations