Close up of American flag.

SCOTUS Rules in OT Case … More Challenges on the Way? On February 22, 2023, the Supreme Court of the United States issued a 6–3 decision holding that an employee making $200,000 each year is entitled to overtime pay under the Fair Labor Standards Act (FLSA) because he was paid on a daily rate and not on a salary basis. In dissent, Justice Brett Kavanaugh argued that the employee’s daily rate far exceeded the required minimum weekly amount set forth in the salary basis regulation and therefore should have excluded him from overtime requirements. But even more interesting to the Buzz is that Justice Kavanaugh went further and raised questions about the validity of the FLSA’s overtime regulation:

Recall that the Act provides that employees who work in a “bona fide executive … capacity” are not entitled to overtime pay. 29 U.S.C. §213(a)(1). The Act focuses on whether the employee performs executive duties, not how much an employee is paid or how an employee is paid. So it is questionable whether the Department’s regulations—which look not only at an employee’s duties but also at how much an employee is paid and how an employee is paid—will survive if and when the regulations are challenged as inconsistent with the Act. It is especially dubious for the regulations to focus on how an employee is paid (for example, by salary, wage, commission, or bonus) to determine whether the employee is a bona fide executive. An executive employee’s duties (and perhaps his total compensation) may be relevant to assessing whether the employee is a bona fide executive. But I am hard-pressed to understand why it would matter for assessing executive status whether an employee is paid by salary, wage, commission, bonus, or some combination thereof. (Emphasis added.)

Although only Justice Samuel Alito joined in this dissent, this language could come into play in potential legal challenges to the U.S. Department of Labor’s (DOL) forthcoming proposal to amend the overtime regulations, currently scheduled to be issued in May 2023. Andrew P. Burnside, Steven F. Pockrass, and Zachary V. Zagger have the details on the opinion.

NLRB Limits Language in Severance Agreements. The National Labor Relations Board (NLRB) ruled this week that employers commit an unfair labor practice merely by offering former employees severance agreements “with provisions that would restrict employees’ exercise of their NLRA rights.” Examples of such provisions, according to the Board, include nondisparagement and confidentiality clauses. The case overrules two 2020 decisions that took a more holistic approach to evaluating severance agreements under the National Labor Relations Act in part because, “severance agreements do not, nor do they have the potential to, affect employees’ pay or benefits or any other terms of employment that were in place before the employees were discharged.” This week’s ruling does not indicate how the Board or the general counsel intend to address severance agreements that were entered into prior to the decision. Brandon R. Sher, Thomas M. Stanek, Andrew S. Haring, and Rachel E. Roney (Ehlermann) have the details.

As Walsh Exits, Foxx Wants Answers. Labor Secretary Martin Walsh plans to leave his position in March 2023, but Representative Virginia Foxx (R-NC), chairwoman of the House Committee on Education and the Workforce, wants to make sure that he responds to her outstanding questions before he leaves town. In a letter dated February 16, 2023, Foxx reminded Walsh that his office had not satisfactorily responded to her previous requests for information about the U.S. Department of Labor’s (DOL) regulatory efforts, including the pending Occupational Safety and Health Administration’s permanent COVID-19 standard in healthcare settings. Foxx wrote that she was “not satisfied with DOL’s responses, as they neither answered my questions nor provided requested materials” and noted that at least one DOL response was “utterly disrespectful, demonstrated bad faith, and was a waste of time.” In a subsequent letter sent this week, Foxx reminded Walsh to make sure that he maintains relevant “materials in a manner that can be easily accessed by DOL staff and future Secretaries of Labor so that they can respond to Committee inquiries.” With Walsh’s impending departure, these inquiries set the stage for potential oversight hearings on Capitol Hill, which will likely be handled by Deputy Secretary of Labor Julie Su or other DOL officials.

BLS: Major Work Stoppages Increased in 2022. According to data released this week by the Bureau of Labor Statistics (BLS), there were twenty-three major work stoppages that started in 2022. BLS defines a “major work stoppage” as a work stoppage that “involves 1,000 or more workers and lasts at least one shift during the work week, Monday through Friday excluding federal holidays.” In 2020, there were eight major work stoppages and in 2021 there were sixteen major work stoppages. More than 120,000 workers were involved in major work stoppages in 2022.

USCIS Allows More Time to Comment on Proposed Fee Increases. U.S. Citizenship and Immigration Services (USCIS) announced this week that it would be extending the deadline for stakeholders to file comments on the agency’s proposed increased fee schedule. According to a notice published today in the Federal Register, due to a technical issue with the General Service Administration’s e-rulemaking portal, “accompanied by technical issues that had delayed the upload of several supporting documents by two days at the start of the comment period, DHS [U.S. Department of Homeland Security] is extending the comment period by 5 business days until March 13, 2023.”

Remembering Barbara Jordan. Barbara Jordan, a Democratic lawyer and politician, was born this week in 1936. A Texan, Jordan began her political career shortly after graduating from law school, when she was elected to the Texas Senate in 1966. With her election victory, Jordan became the first African American person to serve in the Texas Senate since 1883 and the first-ever African American woman to serve in the state senate. In 1972, when both the Texas governor and lieutenant governor were traveling out of state, Jordan served as acting governor for one day—the first African American woman to serve as a governor in the United States. Jordan parlayed these achievements into a successful career serving in the U.S. House of Representatives from 1973 to 1979, where she gained fame for her 1974 speech regarding the impeachment of President Richard Nixon. In 1992, Jordan was awarded the Spingarn Medal from the NAACP, and in 1994, President Bill Clinton awarded Jordan the Presidential Medal of Freedom. Jordan died from pneumonia, a complication from leukemia, in 1996.



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New York City, NY, USA - October 11, 2017: American flag flapping in front of corporate office building in Lower Manhattan
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