THE DOL ISSUES OPINION LETTERS IN AN ATTEMPT TO ANSWER SOME COMMON WAGE AND HOUR QUESTIONS

With military deployments of National Guard, and other military personnel, being at a 20 year high, employers are likely to have employees who request to be absent from work due to military service. Set forth below is a summary of the protections provided to such individuals by USERRA. This is only a summary. This law contains more provisions, and some complexities, as do most federal laws. Additionally, state laws may also be applicable. Employers should consult an expert for specific guidance. USERRA SUMMARY USERRA applies to all employers: There is no threshold based on the number of workers. An employer with just one employee must provide USERRA protections. Prohibition against discrimination and retaliation : Employers cannot deny initial employment, reemployment, retention, promotion, or any benefit on the basis a person’s membership, application for service, or obligation for service in the armed forces. Retaliation is similarly prohibited. Continuation of benefits while on leave : Employers must provide eligible employees with up to five years of unpaid leave during the life of their employment. Throughout this period, employers must maintain the employee’s seniority, health care, and pension benefits. Right to reemployment : Returning service members have a nearly unfettered right to reemployment by their pre-service employers upon timely application for return to work – and need to be returned to a position and pay level they would have risen to had they remained at work during their military leave. Exception to at-will employment: Employees returning from protected leave are no longer pure “at will” employees for a period of time following reemployment. If the deployment was for more than 30, but less than 180 days, they can only be terminated “for cause” for 180 days following reemployment, or for one year if the length of deployment exceeded 180 days.

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.