Earlier this month, the Department of Labor (“DOL”) dropped its defense of an Obama-era regulation that sought to increase the salary level for overtime-exempt employees from $23,660 per year to $47,476 per year. The regulation had been set to take effect in November 2016, but a last-minute preliminary injunction issued by a federal district court in Texas stayed the implementation of the regulation.

In the preliminary injunction ruling, the district court ruled that the new $47,476 salary threshold exceeded the scope of the DOL’s authority because such a high salary level had the effect of making an employee’s salary—and not their primary duty—the determinative factor in the exemption inquiry. Importantly, the district court’s preliminary injunction ruling went well beyond the appropriateness of the particular salary level at issue in the new regulation, and instead expressed the broader view that the DOL lacked the authority to impose any salary level requirement (regardless of the level of salary chosen) because the relevant provision of the FLSA focused on an employee’s duties, not their salary.  Continue Reading DOL Drops Appellate Defense of Overtime Rule

On August 2, 2017, the U.S. Senate confirmed one of President Trump’s two management-side appointees, Marvin Kaplan, to the National Labor Relations Board (“NLRB”) in a contentious vote along party lines. Kaplan was sworn in on August 10, 2017, for a term ending on August 27, 2020.  Continue Reading NLRB No Longer Controlled by Labor Union Appointees

On June 7, 2017, the Department of Labor (“DOL”) announced that it is withdrawing two administrative interpretations issued by the DOL under the Obama administration in 2015 and 2016 relating to misclassification of independent contractors and joint employment. These two administrative interpretations sought to expand the definition of “employee,” thereby increasing the possibility of misclassification cases, and, as some argued, expanding the concept of joint employer under the Fair Labor Standards Act. While this is a welcomed announcement for employers, the DOL emphasized in the press release that the withdrawal “does not change the legal responsibilities of employers under the Fair Labor Standards Act.” This is the first effort by the DOL under the Trump administration to dismantle some of the more controversial policies issued by the DOL in the Obama-era. The decision to withdraw these administrative interpretations may also signal that the DOL intends to return to the opinion letter writing process, making compliance much simpler for employers.

The FDA has announced that it will officially delay the compliance date for its Menu Labeling Rule (the “Rule”) to May 7, 2018, in order to consider how to further reduce the regulatory burden or increase flexibility while continuing to achieve regulatory objectives. Among other concerns, the FDA notes that retailers have raised concerns that the Rule lacks flexibility to permit the provision of meaningful nutrition information to consumers in innovative formats. Continue Reading FDA Pushes Back Compliance Date for ACA Menu Labeling Rule

On March 14, 2017, the Consumer Review Fairness Act of 2016 (the “Fairness Act”) will come into effect, 90 days after it was signed into law by President Obama. The Fairness Act voids any provision in a form contract between a consumer and a business that (1) restricts the consumer’s ability to leave reviews, (2) imposes penalties for leaving negative reviews or (3) transfers intellectual property rights in reviews or feedback content from the consumer to the business. The Fairness Act was passed in response to an increase in the use of so-called “non-disparagement clauses” that prohibited consumers from sharing their honest opinions about a seller’s goods, services or conduct. Continue Reading How Companies Can Comply with the Newly Effective Consumer Review Fairness Act

Recently, President-elect Donald Trump tapped Andrew Puzder as his pick for Secretary of Labor. Puzder—the CEO of Hardee’s and Carl’s Jr.—has been an outspoken critic of government regulations, including efforts to increase the minimum wage and recent changes to the white-collar overtime exemption. If the Senate confirms Puzder, he will oversee the agencies responsible for these policies and his confirmation could signal a slowdown of anti-business federal regulations from the Department of Labor under President Obama’s Secretary of Labor, Thomas Perez. Continue Reading Trump’s Pick for Labor Secretary Could Mean Good News for Retailers

On September 12, 2016, the House of Representatives passed the Consumer Review Fairness Act (the “Fairness Act”), aimed at preventing companies from penalizing consumers who post negative reviews online. The law is a response to non-disparagement clauses such as the one challenged by the FTC in litigation filed last year against Roca Labs, Inc. Continue Reading House Passes Consumer Review Fairness Act

On July 29, 2016, President Obama signed into law a bill that will establish federal standards for labeling of food products that contain ingredients from genetically modified organisms (“GMOs”). Several consumer advocates opposed the bill, as it preempts more stringent labeling requirements in states like Vermont. However, several advocates on the other side favored the notion of national, uniform standards, as opposed to a patchwork of individualized state labeling laws. Continue Reading President Obama Signs Bill That Will Establish Federal GMO Labeling Standards

President Obama signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act (“Lautenberg Act”) into law in June 2016, amending the core provisions of the Toxic Substances Control Act (“TSCA”) for the first time in nearly 40 years. Last month, Hunton & Williams detailed how the Lautenberg Act considerably broadens the Environmental Protection Agency’s (“EPA’s”) authority to evaluate chemical safety and regulate use of chemicals in all stages of the supply chain, including manufacturing, distribution and retail sale. Within six months, EPA must select at least 10 chemical substances and begin risk evaluations on them. EPA must also classify chemicals – including those currently in the retail supply chain – as “high priority” or “low priority” for review, and begin risk evaluations on 20 high priority chemicals within the next three and a half years. Continue Reading Major Implications for Retail Industry Following Overhaul of Toxic Substance Control Act

On April 13, 2016, the Securities and Exchange Commission (“SEC”) published its long-awaited concept release on the reform of Regulation S-K. Regulation S-K is the primary set of rules that establish disclosure requirements for public companies.

For the SEC, a “concept release” is an advance notice of proposed rulemaking under the Administrative Procedure Act. Thus, before taking any further action to amend its rulebook, the SEC will be required to issue a set of proposed rules, elicit further public comment and then adopt final rules in another release. Continue Reading SEC Releases Concept Release on Reform of Regulation S-K