EMPLOYERS WITH EMPLOYEES WHO HAVE MILITARY OBLIGATIONS NEED TO UNDERSTAND USERRA

On May 28, the US Department of Labor, “DOL,” issued four Opinion Letters in an attempt to answer some “real world” questions Employers have about wage and hour law, governed on the Federal level by the Fair Labor Standards Act, “FLSA.” You can find links to the actual Opinion Letters here: https://www.dol.gov/newsroom/releases/whd/whd20260529-0 . Additional Opinion Letters are also available on that site. Unfortunately, the FLSA is an old law with many complexities and nuances. Set forth below is our attempt to provide the takeaways from two of the Opinion Letters: FLSA 20026-7 – This was a meal period case. The question was whether employees were entitled to pay for time spent walking out of a large facility and going through security to take their meal break. The short answer is no. The employees in this case had the meal period option to leave the worksite or stay onsite. Their choice to leave did not convert their travel time into time worked. The letter notes that the FLSA does not require that employees be given a meal period at all (Please note that state law often does require a meal period). However, if an UNPAID meal period is provided, it must be at least 30 minutes of UNINTERRUPTED time during which the employees are COMPLETELY relieved of all duties. The letter also mentions that employees may be required to stay on the premises during the unpaid meal period, provided they perform no work. FLSA 2026-5 – The question in this letter was whether an employee who is properly exempted from overtime can also be paid for working in an hourly position that is not exempt from overtime. The short answer is yes, provided that the employee’s PRIMARY DUTY is in the overtime exempt position. The case involved nurses who worked 62 – 77% of their weekly hours in a properly overtime-exempt Specialist position; with the other hours being worked in an hourly nonexempt Floor Nurse position. Under the FLSA, an exempt employee can pick up extra hourly shifts in a non-exempt role and be paid hourly for that non-exempt work, so long as their primary duty is exempt work and they are paid the full guaranteed salary for the exempt position on a salary basis.

On March 16, 2026, ICE updated its Form I-9 Inspection fact sheet, effectively superseding prior guidance that had governed I-9 enforcement for nearly three decades. Specifically, more than 10 error categories previously treated as correctable technical violations—eligible for the statutory 10-day cure period—are now reclassified as substantive violations subject to immediate fines of $288 to $2,861 per violation. What Has Changed

A recent Opinion Letter from the Department of Labor, “DOL,” serves as a good reminder that incentive bonus payment usually must be included in an employee’s regular rate used to calculate overtime. The Opinion Letter dealt with an employer in the waste industry that paid drivers a bonus every pay period if certain safety and performance criteria (punctuality, attendance, and consistency in completing daily safety tasks) were met. Not surprisingly, the DOL found that the bonus amounts should be included in the regular rate of pay for overtime calculation purposes, because the payments were incentives and Discretionary Bonuses. Discretionary bonuses may be excluded from the regular rate of pay if: (1) the fact and amount of the payment are determined at the SOLE Discretion of the employer; (2) with the determination being made at or near the time of the period when the work was performed; and the payment must not be made pursuant to any prior contract, agreement, or promise causing the employee to expect such payments regularly. The payments in this case were made pursuant to a predetermined plan to incentivize work performance. A true Discretionary bonus which can be excluded from overtime is quite unusual. Accordingly, most bonus payments must be included in overtime calculations.

As employers will recall, a federal court struck down the Fair Trade Commission’s (FTC) proposed ban on employee non-compete agreements over a year ago. The FTC has since abandoned its effort to enforce a rule completely banning such agreements. However, in September, the FTC surprised some by announcing that it intends to regulate the use of employee non-competes on a case-by-case basis. It seems that the FTC will consider whether the restrictions are “reasonable” by determining whether they are no greater than is necessary to protect the employer’s legitimate interests, balancing those interests against the hardship to the employee and public. Some factors that are likely to be considered are: The size of the company, both in terms of employees and business; Whether the employer requires non-competes of all employees, or only those with job duties that might justify their use to protect the employer’s interests; The scope of the geographic and time limitations contained in the non-competes. This “reasonableness” determination is very similar to the analysis that many state courts use in determining whether to enforce a non-compete. The FTC has announced its intention to put particular focus on employers in the healthcare space. However, all employers utilizing non-compete agreements should review the restrictions contained therein in an effort to determine that they appear reasonable under the above criteria.