Labor Department “Updates” Mangle Longstanding FLSA Principles

John Thompson is an attorney in the Atlanta office of the law firm Fisher & Phillips.
John Thompson is an attorney in the Atlanta office of the law firm Fisher & Phillips.

By John E. Thompson

Earlier this week, the U.S. Labor Department’s Wage and Hour Division published a “Final Rule” entitled, Updating Regulations Issued Under the Fair Labor Standards Act.”

This document (which affects not only “regulations” but also interpretative provisions of lesser status), addresses a number of subjects. These topics include (among others) fluctuating-work week pay plans, the impact of previous changes in the minimum wage, the tip credit available for tipped employees, and the exemption status of certain employees in automobile dealerships.

The “Final Rule” is effective on May 5, 2011.

This action is ostensibly the continuation of an initiative begun in 2008. At that time, the Wage and Hour Division proposed to clarify and correct certain FLSA principles and to take into account FLSA amendments that had occurred over a time frame of more than three decades.

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The current administration has now transformed this undertaking into a plaintiff’s-lawyer “wish list” consisting mostly of background commentary rather than the procedurally-sound adoption of actual administrative interpretations or regulations. Employers must now be prepared to explain to the courts why substantial portions of this publication should be rejected.

We are continuing to evaluate the details and will be posting additional comments and analysis.

This was originally published on Fisher & Phillips’ Wage and Hour Laws blog.

John Thompson is a partner in the Atlanta office of the law firm Fisher & Phillips. His practice focuses on wage and hour law, assisting employers in preventive efforts designed to ensure compliance, and he handles both investigations conducted by government agencies and litigation in the wage and hour area. John has served as a Special Assistant Attorney General for wage-hour matters for the State of Georgia. Contact him at jthompson@laborlawyers.com.

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