Posts in By Kirby Rousseau
Do You Hear Me Now – GAO Studies Communications Problems Arising From Service Contract Act Enforcement

In October of this year, the Government Accountability Office (“GAO”) published a study titled Federal Contracting – Actions Needed to Improve Department of Labor’s Enforcement of Service Worker Wage Protections (Oct. 2020). The GAO report has offered up some interesting factual nuggets on SCA investigations along with six rather bland recommendations to improve enforcement.

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The Wage and Hour Grinch -- Holiday Gift Cards and the FLSA

If you want to give an employee a holiday gift card, and exclude the value from the regular rate of pay, it would be prudent not to announce the gift in advance and perhaps even make the award of the gift card conditioned upon “unique or extraordinary efforts” or for “challenging or stressful situations”, or for a “worker-of-the-month” bonus.

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A Modest Wage-Hour Proposal: A Paid Day Off for Democracy

Declaring Election Day a national holiday isn’t exactly a novel idea. While the 2020 Presidential election may be the most participated U.S. election in recent memory, more can always be done to remove the obstacles faced by each voter. Accordingly, we make a modest proposal that Election Day be made a mandatory paid holiday with guaranteed time off to vote. Let’s tip a glass of cider to a new Democracy Day holiday!

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Wasting Away -- DOL Opines That Oil Waste Services Company Has a Retail or Service Concept

On August 31, 2020 the U.S. Department of Labor (DOL) published an official Opinion Letter regarding the new “retail concept” regulations expanding the reach of the overtime exemption of the Fair Labor Standards Act (“FLSA”) based on new rules it had promulgated on May 19, 2020. DOL found that a previously ineligible industry — oil field services/waste management — was now eligible for the Section 7(i) overtime exemption to the FLSA. Thus, DOL has lit the way for more enterprises to use his overtime exemption.

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In a Qui Tam Case Where It Is the Real Party in Interest, the Government Can Be Responsible for the Contractor's Legal Fees Under the Spearin Doctrine

The Government has several avenues to pursue damages when a contractor commits fraud, including bringing its own False Claims Act suit or joining a proxy qui tam lawsuit. But what happens when the Government’s mistake leads to a contractor’s damages? In a recent case, a contractor invoked the so-called Spearin doctrine to recover legal fees from an erroneous qui tam lawsuit.

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Avoiding Exemption Classification Mishaps When Confronting Covid-19 Financial Pressures and Salary Reductions

Employers facing the pressure of Covid-19 or different business slowdown, and considering a reduction of exempt employee pay and hours of work, may be relieved to know that a bona fide reduction of hours due to financial exigencies will not prevent an employee from still qualifying as exempt. if still paid over the miminum salary threshold.

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Drill, Baby, Drill – Overlapping Coverage of Drilling Work under the Service Contract Act and Davis-Bacon Act

Drilling work presents a a perrenial issue of which prevailing wage law is in play. One of the most challenging parts of wage and hour law revolves around the overlap of Service Contract Act (“SCA”) and Davis-Bacon Act (“DBA”) coverage. It is entirely possible for an employee doing the same physical drilling activity to be covered by a different wage law on the next contract.

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A Department of Labor No Brainer – Removing Arbitrary Restrictions Concerning the “retail concept.”

Effective immediately on May 19, 2020, the Department of Labor (“DOL”) published a new final rule repealing some of their old interpretive guidance to clarify which businesses may or may not have a “retail concept.” under the outside sales exemption of the Fair Labor Standards Act (“FLSA”). After criticism from the community and some courts, the DOL has since seen fit to remove the opaque non-exhaustive lists of eligible and ineligible work from their regulations.

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Can Federal Contractors Offset Coronavirus Leave or Avoid Paying H&W Benefits Thereon: No, Maybe, Whatever!

Under The Families First Coronavirus Response Act (“FFCRA”), employers must pay the coronavirus leave in addition to any other leave requried by the prevailing wage laws. There is no credit or offset. As to whether government contractors must also pay additional health and welfare benefits, on top of the virus leave, for the time being that ball is up in the air, awaiting DOL clarification, although prudent employers may decide to pay it nonethless in the interim given the uncertainty.

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OFCCP Issues National Interest Exemption from Certain Affirmative Action Obligations

OFCCP issued an exemption for certain new coronavirus related contracts providing “relief” from certain parts of Executive Order 11246 (EO 11246), as amended, Section 503 of the Rehabilitation Act (Section 503), as amended, and Section 4212 of the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA), as amended. Generally, contractors performing under a covered contract no longer have to abide by the sections that require affirmative action to ensure the hiring of employees without regard to their sex, sexual orientation, religion, color, race, disability status, or veteran status. However, this waiver only applies to the exempted contracts.

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Has the Coronavirus Broken the Deadlock over Sick and Family Leave Benefit Expansion?

The Families First Coronavirus Response Act (FFCRA) bill was passed by the U.S. House of Representatives and sent to the Senate this week. The bill would allow for two weeks of fully paid sick leave and up to 10 weeks of partially paid leave (at two-thirds pay) for workers of small business employers meeting certain conditions. The leave would be financed by a tax credit.

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Big Things Happened at the DOL Last Week – The Release of the Final 541 Rule Including a Significantly Lower Dollar Threshold for Highly Compensated Employees

Most notably, the final FLSA rule dispenses with the proposed rule’s significant increase in the salary requirement for the Highly Compensated Employee (“HCE”) test, and instead substitues a modest increase from $100,000 to a new salary basis of $107,432, effective January 2020.

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Late Notice Does Not Preclude a SCA Price Adjustment, but Feeble Proof Will Bar the Claim

While the Service Contract Act (“SCA”) price adjustment clause requires contractors to submit their price adjustment prposals within 30 days of the contract modification adding a new wage determination, the Board says that requirement is not jurisdictional and doesn’t bar the claim. However, a failure of proof of actual costs will bar the recovery.

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