February 04, 2022

Labor and Employment Newsletter

3 min


FLSA Misclassification: Common Mistakes That Employers Make When Classifying Their Employees as "Exempt" from Overtime Requirements

In 2021, the U.S. Department of Labor (DOL) collected a whopping $234 million in back wages for nearly 200,000 employees who the DOL determined were not paid in accordance with the Fair Labor Standards Act (FLSA). Experts report that more than 6,000 lawsuits alleging FLSA violations are filed each year in federal courts throughout the country, and that private settlements of FLSA lawsuits cost employers hundreds of millions each year. These figures confirm what every human resources professional already knows: misclassification of employees under the FLSA can be a costly mistake. In this alert, we highlight some of the most common mistakes that employers make when classifying their workers as "exempt" from the FLSA's minimum wage and overtime provisions.

As the Federal Vaccine Mandates Fall One by One, Employers Are Left to Navigate a Maze of Uncertainty Amid State and Local Laws

In September 2021, President Biden announced a series of emergency worker protection regulations to combat surging positive test rates caused by the COVID-19 Delta variant. On September 9, 2021, the White House issued Executive Orders 14042 and 14043, mandating vaccination for federal employees while also mandating vaccination for all federal contractors, subcontractors, and their employees. Shortly thereafter, the Occupational Safety and Health Administration (OSHA) announced an Emergency Temporary Standard (ETS) requiring vaccination or testing for private businesses. The Centers for Medicare & Medicaid Services (CMS) at the Department of Health and Human Services followed suit, issuing an interim final rule requiring healthcare workers at facilities participating in Medicare and Medicaid to be fully vaccinated.

Education Roundup: Supreme Court to Hear Challenge to Use of Race in Admissions

On Monday, January 24, 2022, the Supreme Court of the United States (the Supreme Court) announced it will hear a challenge to the use of affirmative action in admissions for institutions of higher education (IHE). The two combined cases at issue, which will likely be argued next fall, are Students for Fair Admissions v. Harvard College, No. 19-2005 (1st Cir. Nov. 12, 2020) (opinion), cert. granted, No. 20-1199 (Jan. 24, 2022), and Students for Fair Admissions v. University of North Carolina, No. 14-cv-954-LCB (M.D.N.C. Oct. 18, 2021), cert. granted, No. 20-119 (Jan. 24, 2022).

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What legal issues are keeping you up at night?

We are continuing to monitor key trends and significant updates that affect employers across a wide variety of industries. We want to make sure we touch upon issues that are of concern to you. We invite you to take a moment and let us know what you would like to hear more about in this newsletter. Click below to email our team of attorneys.

Attorney Spotlight

Ryann AaronRyann Aaron: My interest in employee benefits law began when I audited employee benefit plans as a CPA. In my legal career, I continued expanding my knowledge and expertise in ERISA and the Internal Revenue Code to help employers navigate these complex laws. I found that employee benefits law is exciting because it is constantly changing! It is enjoyable to encounter the range of programs that employers offer their employees and advise them on how to make them work within the parameters of the law. I am excited to be part of Venable's Employee Benefits Practice Group and look forward to the opportunities ahead.

About the Labor and Employment Group

The bicoastal, 40-person Labor and Employment team at Venable provides guidance and support across the full spectrum of workplace dynamics – helping employers control costs, avoid disputes, and defend themselves when litigation arises. As co-editors of this newsletter, Michael Volpe and Doreen Martin invite you to share the content with your colleagues and reach out with any questions.