How Long Can An Employer Wait to Arbitrate? Eighth Circuit Softens Rule on Waiving Arbitration

On March 30, 2021, the Eighth Circuit Court of Appeals issued a decision reversing a trial court’s determination that an employer waived its right to compel arbitration by participating in litigation. Morgan v. Sundance, Inc., No. 19-2435 (8th Cir. Mar. 30, 2021).  In Morgan, the trial court had concluded the …

Western District of Arkansas Declines To Adopt the Fifth Circuit’s Approach to FLSA Conditional Certification

In a recently issued opinion, the United States District Court for the Western District of Arkansas refused to adopt the Fifth Circuit’s new approach to conditional certification under the Fair Labor Standards Act (“FLSA”). See McCoy v. Elkhart Products Corp., No. 5:20-cv-05176, 2021 WL 510626 (W.D. Ark. Feb. 11, 2021). …

New Independent Contractor Rules? Not So Fast

During the Trump Administration, the Wage and Hour Division (“WHD”) of the United States Department of Labor (“DOL”) resumed the practice of issuing formal Opinion Letters that shed light on how the agency would interpret and enforce wage and hour laws and regulations.  The Obama administration generally elected to provide …

Section 13(a)(3): What is an Amusement or Recreational Establishment?

In a January 15, 2021 Opinion Letter, the DOL took a deep dive into the origins and development of the amusement and recreational establishment exemption codified at 29 U.S.C. § 213(a)(3) to address several questions and issues about its nature and scope.  Three separate entities requested guidance on the same …

The Last Lame Duck Opinion Letters from the Trump Administration

On January 19, 2021, the Wage and Hour Division (WHD) of the United States Department of Labor (DOL) issued several opinion letters addressing issues and questions related to exemptions and potential misclassification under the Fair Labor Standards Act (FLSA).  Three of those opinion letters are addressed in this article. Retail …

DOL Announces Final Rule on Determining Independent Contractor Status under the FLSA

On January 6, 2021, the United States Department of Labor (“DOL”) announced a final rule that addresses the distinction between employees and independent contractors under the Fair Labor Standards Act (“FLSA”).  The final rule will be published in the Federal Register on January 7, 2021 but will not take effect …

Potential Changes to Wage and Hour Laws under the Biden Administration

Presidential elections in the United States can have a significant impact on how laws are enforced or changed from one administration to the next, especially where the political party of the President switches as a result of the election, as in 2020.  With the Biden administration beginning its transition to …

Employment Laws to Take Effect in New Year

The COVID-era has brought many challenges for employers and employees alike when it comes to employment laws. Going into the new year, some states are enacting new legislation that centers on how to better distinguish independent contractors from employees, safety related changes, and leave requirements. Below are descriptions of new …

Independent Contractors vs. Employees: Impact on Franchising

The distinction between independent contractors and employees in the wage and hour context is not new.  For decades, courts across the country have wrestled with how to legally define these relationships and distinguish them.  Over time, this has resulted in several versions of a similar legal framework and tests that …