Retail Labor and Employment Law

By Nancy L. Gunzenhauser

On March 13, 2014 President Obama issued a memorandum instructing the Department of Labor (“DOL”) to review and revise overtime regulations under the Fair Labor Standards Act (“FLSA”).  Under the FLSA employees are eligible to receive overtime for all hours worked over 40 per week, unless they fall within certain specified exemptions.  The most common of exempt classifications in the retail industry are executive, administrative, and commission sales.

The executive exemption applies to managers and supervisors who direct the work of others and who earn a salary of at least $455 per week. The administrative exemption applies to employees who (i) earn a minimum weekly salary of $455, (ii) perform non-manual work directly related to the employer’s business operations and (iii) have as a primary duty the exercise of discretion and independent judgment with respect to matters of significance. The commissioned sales person exemption applies to employees who receive more than half of their earnings from commissions.

The upcoming changes to overtime regulations will be the first since 2004, when the threshold for the executive exemption was raised from $250 to $455 per week.

While the exact changes the Obama administration has in mind remain unclear, the impact on the retail industry, and indeed nearly all employers, may be be significant because the express purpose of the mandated review is to increase the number of workers eligible for overtime. One likely change will be a further increase to the minimum weekly salary threshold for executive and administrative exemptions. Inasmuch as many, if not most, exempt employees already have salaries of more than $455 per week, the change to the salary threshold alone might not be significant – depending on the new minimum. But, other changes cannot be ruled out.

The DOL has not indicated when it expects to issue the proposed amendments. A comment period will follow before any rule amendments are adopted, however.   Rulemaking may take a year or more. We will be monitoring the process and will alert you here to developments.

In addition, you may wish to download the EBG Wage & Hour app to your smart phone,  where changes to the regulations will also be posted.

Our Epstein Becker Green colleagues Susan Gross Sholinsky and Nancy L. Gunzenhauser discuss “Five New Challenges Facing Retail Employers” in this month’s Take 5 newsletter. Below is an excerpt:

Retailers face new challenges every day as a result of legislation, litigation, and technology. This Take 5 addresses some of these challenges. …

  1. Pregnancy Accommodation
  2. Releases and Other Considerations Attendant to Layoffs
  3. Racial Profiling
  4. Data Security
  5. Social Media in Hiring

Read the full newsletter here.

In an article written by Corporate Counsel’s Shannon Green published on May 23, 2013,   Epstein Becker Green labor and employment attorneys, Jeffrey M. Landes and Susan Gross Sholinsky, were interviewed concerning the legal issues that retail industry employers are currently facing.      The interview followed a retail executive roundtable held in EBG’s New York office on May 21, 2013.

Following is an excerpt:

Increased government regulatory activity has been on the minds of most employers for the past several years, and U.S. retailers are no exception. At a roundtable event tailored exclusively to their retail clients, lawyers from Epstein Becker Green discussed some of the key legal risks members of the industry are facing.

Click here to read the entire Corporate Counsel article.

We are pleased to announce today that the Employer Defense Law Blog has a new look and a more focused approach.   The Employer Defense Law Blog will now be known as the Retail Labor and Employment Law Blog, which  will provide insights, news, updates, and commentary on labor and employment law developments affecting employers in the retail industry.

For more than three decades, Epstein Becker Green attorneys have been advising and representing retail clients on a wide array of matters that impact their businesses. Our services have included, among other things, drafting worldwide policies and procedures related to global retail operations; negotiating collective bargaining agreements for countless retail and service unions; advising clients in the retail industry on all aspects of the employment relationship; representing and defending retail clients in connection with federal, state, and local administrative charges and in mediations, arbitrations, and lawsuits; and conducting wage-hour, human resource, and compliance audits for retail companies.

As a subscriber, if the topic of  labor and employment law in the retail industry is not of interest to you, please review EpsteinBeckerGreen’s full array of blogs focused on industries such as financial services, hospitality, and health care.  We also offer blogs that follow important and headlines issues concerning wage-hour matters, trade secrets and non-competes, and labor law for management, to name a few.

Thank you for your readership. We hope that you will continue to monitor labor and employment news and insights through your subscriptions to Epstein Becker Green’s law blogs.