Texas Employment Law Update : Texas Employment Lawyer & Attorney : Russell D. Cawyer : Kelly Hart & Hallman Law Firm : Dallas TX Labor Updates

In a non-employment case of significant importance to employers and employment lawyers, the U.S. Supreme Court held today that imposing class arbitration on parties who have not agreed to class arbitration is inconsistent with the Federal Arbitration Act and is therefore not permitted.  This case arose out of an MDL antitrust case alleging that certain competitors were engaged in a price-fixing scheme.  The parties to the underlying transaction were signatories to an arbitration agreement that was silent on whether the arbitrator had the authority to conduct class action arbitrations. For a more detailed review of the factual and procedural background of the case, see the SCOTUS Wiki on the case here. 

The significance of this case to employers is that many employment agreements containing arbitration provisions are also silent on the issue of class arbitration (and some specifically exclude class action arbitration).  Without doubt this opinion will be used to argue that an arbitrator lacks the authority under the FAA to arbitrate class action employment disputes where the parties' agreement, or other probative evidence, fails to establish that the parties agreed to arbitrate those claims collectively. 

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As I wrote yesterday, the Wage & Hour Division of the U.S. Department of Labor has ceased issuing detailed, fact-specific opinion letters.  In the first of the Administrative Interpretations the Division will issue in lieu of opinion letters, the Division has concluded that most mortgage loan officers will not qualify for the administrative exemption to the overtime provisions of federal law.

For purposes of the Administrator's Interpretation, mortgage loan officers includes employees typically having job titles of mortgage loan representative, mortgage loan consultant and mortgage loan originator.  The interpretation outlines the typical duties performed by the employees as receiving internal leads; contacting potential customers; receiving contacts from customers generated by direct mail or other marketing activity; collecting required financial information from customers (including income, employment history, assets, investments, home ownership, debts, credit history, prior bankruptcies, judgments and liens); assessing loan products available for customers and discussing those products with customers; and completing and forwarding completed documents to underwriters or loan processors for closing.

Based on a lengthy review of the typical duties of a mortgage loan officer and the case law analyzing such positions, the Administrator concluded that the typical mortgage loan officer has the primary duty of making sales for their employers and therefore do not qualify for the administrative exemption.  You can access and review the full interpretation here.

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The U.S. Department of Labor's Wage & Hour Division announced it will no longer issue fact-specific definitive opinion letters in response to questions submitted by individuals and organizations.  According to the Division, its opinion letters provide only limited guidance to broad categories of employers and employees where slight factual differences in the facts assumed in the letter could result in a different outcome. 

In the future, the Division intends to issue Administrative Interpretations to "set forth a general interpretation of the law and regulations, applicable across-the-board to all those affected by the provision in issue"  and to "clarify[] the law as it relates to an entire industry, a category of employees, or to all employees."

The Division will continue to respond to requests for opinion letters with references to statutes, regulations, interpretations and cases that relevant to the request but without analysis of the specifics facts presented. You can access the Divisions new Administrative Interpretations page here.

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The U.S. Department of Labor recently issued guidance via answers to some Frequently Asked Questions regarding work furloughs.  The FAQs can be found here.  I've previously written on employer use of furloughs.  You can read that post here.

Richard Tuschman at the Florida Employment and Immigration Law Blog also has a good post on furloughs that explains some of the potential legal pitfalls furloughs can cause.  You can find his post here.

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Following a GAO report that concluded that the Department of Labor inadequately investigated complaints from low-wage and minimum wage workers who claimed that their employers failed to pay the federal minimum wage, required overtime, and failed to pay employees their last paycheck the DOL has reacted. 

This week, Secretary of Labor Hilda Solis  announced that the DOL Wage and Hour Division would increase the number of investigators at its field offices by 150 to refocus the department on its enforcement responsibilities.  Since Texas has three field offices of the forty-five nationwide, on a prorata basis, Texas could see a net increase of ten investigators.

Additionally, Secretary Solis announced the intent to hire 100 new investigators to enforce the compliance of contractors receiving assistance under the American Recovery and Reinvestment Act. This renewed emphasis on enforcement efforts and an increased number of investigators will undoubtedly result in more frequent and active DOL investigations.  Texas employers should ensure that their classifications of employees as exempt are accurate and that their pay practices comply with the Fair Labor Standards Act to avoid being targeted by a more active DOL.

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