Understanding the FLSA’s New Salary Test

The Fair Labor Standards Act (FLSA) sets minimum wage and overtime requirements for employees. The overtime requirement requires employers to pay at least one-and-one-half times the hourly rate of the employee for each hour the employee works over 40 hours in a regular work week.

However, certain employees may be exempt from the overtime requirements if they qualify as meeting three tests:

1. Job Duties Test;
2. Salary Level Threshold Test, and
3. Salary Basis Test.

The FLSA does not define those tests. Instead, the U.S. Department of Labor (DOL) is directed to define the exemptions and modify criteria from time to time with regulations.

The Job Duties Test specifies certain duties that the employee must perform if the employee is to be classified as an executive, administrative, professional, outside salesperson, or a computer-related occupation. Additionally, highly compensated employees are also eligible if they fit within a specific job duty test. These employees must all meet the Salary Level Threshold Test and be paid a predetermined and fixed salary that is not subject to reduction (Salary Basis Test). Continue reading »

Changes in Missouri Law Regarding Restrictive Covenants in Business Sales

Authored by Ruth Binger with assistance from Kristina M. Stevenson, contributor

Recent changes in Missouri law have impacted the enforceability of restrictive covenants in the sale of businesses, particularly those involving business entities and owners. These modifications, detailed in Revised Statutes of Missouri (RSMo) 431.204, arguably reduce protections extended to business purchasers.

Effective August 28, 2023, a covenant prohibiting solicitation of employees between a business entity and an owner cannot extend beyond a two-year period following the termination of the owner’s affiliation with the entity. Essentially, this means that after two years from the sale of their business, an owner is permitted to solicit employees previously associated with the entity.

Moreover, the revisions have introduced more stringent conditions for covenants prohibiting the solicitation of customers. These non-solicitation covenants must now be limited to customers with whom the owner had prior dealings and cannot extend beyond five years after the owner’s termination of business ties with the entity. This adjustment opens the door for sellers to solicit customers they had not previously interacted with. Continue reading »

Employee or Independent Contractor Classification under the Fair Labor Standards Act Effective March 11, 2024

The U.S. Department of Labor (DOL) has modified the Wage and Hour Division Regulations to replace its 2021 analysis for determining whether a worker is an employee or independent contractor (Final Rule). The previous test gave greater weight to control and opportunities for profit and loss.

Effective March 11, 2024, under the Final Rule the employee or independent contractor classification determination will focus on the economic realities of the worker’s relationship and whether the worker is either economically dependent on the potential employer for work or is in business for himself. In short, is the worker dependent upon the business to which it renders services for work?

Economic dependence does not focus on the amount of income the worker earns, but rather whether the worker has other sources of income from other customers. To determine economic dependence, the DOL assesses seven factors and conducts a totality-of-the-circumstances analysis. No one factor carries more weight. The DOL looks at the working relationship, the workplace, and the particular industry.

Under the Final Rule, Section 795.105, DOL, uses the following tools and/or factors in its determination: Continue reading »

Why Your Business Needs Trademarks: Protecting Your Intellectual Property

Authored by Ruth Binger with assistance from Sarah L. Ayers, contributor

Trademarks are a vital aspect of intellectual property, offering unique proprietary rights with several advantages. Unlike other forms of property, a brand or trademark can remain valuable indefinitely with proper care. In fact, trademarks tend to increase in value with use. They can be sold or licensed, making them reasonably liquid assets. Additionally, trademarks serve as powerful marketing shortcuts, influencing consumer purchasing decisions for a company’s goods or services.

However, there are misconceptions surrounding the protection trademarks provide. Incorporating, qualifying to do business, or reserving the business name with various Secretary of State offices provides limited brand name protection. The right to exclude others from using a similar name on goods and services is not automatically granted. Conduct a thorough trademark search of any new corporation or LLC name used to identify a product or service to determine the availability of a mark for your specific purposes and ensure the name does not infringe on another entity’s trademark.

Trademark registration is not mandatory to establish a protectable and exclusive right to a mark. Registered trademark remedies are injunctions and damages, but often the only remedy for an unregistered mark is an injunction. Under common law, trademark rights can be obtained within a specific geographic area of use. State trademark registration does not offer protection beyond these rights. Continue reading »

Illinois Passes Expansive Paid Leave Legislation: The Paid Leave for All Workers Act

Authored by Ruth Binger with assistance from Sarah L. Ayers

One of the most expansive paid leave laws in the nation has passed in Illinois. When the “Paid Leave for All Workers Act” goes into effect on January 1, 2024, Illinois will be one of only a few states, including Maine and Nevada, that require employers to offer paid leave for any reason or no reason at all.

Who Does the New Law Apply To?

The Paid Leave for All Workers Act applies to all individuals and public and private entities that employ at least one person in the state of Illinois. However, federal government employers, school districts organized under the Illinois school code, park districts organized under the Illinois school code, and employers who have already started to allocate sick leave under the Chicago or Cook County Ordinance are exempt.

“Employees” are broadly defined as “[a]ny individual permitted to work by an employer in an occupation.” The new law applies to in-state employees and remote employees based in Illinois who work 40 or more hours in Illinois within a 12-month period.

Under the Paid Leave for All Workers Act, domestic workers are considered employees, but the following workers are not:

• Independent contractors,
• Workers who meet the definition of employee under the Federal Railroad Unemployment Insurance Act or Railway Labor Act,
• College or university students who work part-time at the institution they attend, and
• Short-term employees who work for an “institution of higher learning” for less than two consecutive calendar quarters and do not have an expectation to be rehired.

Another important note is that individual employees cannot waive their rights under the Paid Leave for All Workers Act. However, bargaining unit employees can waive the right in a “bona fide collective bargaining agreement” if it is explicitly stated in “clear and unambiguous terms” within the agreement. Employers who have union employees are required to implement the Paid Leave for All Workers Act, even if it is inconsistent with the terms of the collective bargaining agreement, if the bargaining agreement is not set to expire for several years.

What Does the New Law Require? Continue reading »

What Businesses Should Keep In Mind When Terminating an Employee

Ruth Binger was asked a few employment law questions by Ron Ameln, editor of St. Louis Small Business Monthly. Click here to see the first question about non-compete agreements and Ruth’s response. 

Firing an employee is always tricky. What are some things owners need to keep in mind if they let an employee go?

It is always hard to fire an employee. Employees strike back in a myriad of ways, some fair and some not so fair, such as filing a discrimination claim with the Missouri Human Rights Commission or the EEOC, complaining bitterly on the Glassdoor website, or, absent a non-compete, going to work for your competition or soliciting your employees and customers.

Positive actions include offering a severance agreement which includes a non-compete. Some employers make introductions to other employers where the fit might be better. This works well if the employee is not being let go because of performance but because of a lack of work or occupying the wrong seat on the bus. You could also put the employee on paid or unpaid leave for 3-6 months until the employee finds a job. It is easier to find a job if you have a job.

How important is it to have the proper documentation before firing an employee? Continue reading »

What Businesses Should Keep In Mind About Non-Compete Agreements

Ruth Binger was asked a few employment law questions by Ron Ameln, editor of St. Louis Small Business Monthly. Here is the first question with her response. Click here to see Questions 2 & 3 about things to keep in mind when terminating an employee.

With the tight labor market, business owners are doing everything they can to keep employees. Some are looking at non-compete agreements. Others hope their current agreements will help keep employees in the current environment. What should businesses keep in mind with these agreements?

Non-compete agreements are negative guardrail enforcement to protect your business. To enforce a non-compete, you must be able to prove that the business has a protectible interest in its trade secrets and customer relations and the covenants are reasonable. The key is to have your employees sign non-compete agreements on the first day of employment. If you require that the employees sign the agreement post-hiring, you will have issues with morale (employee may leave) and enforceability. To ensure enforceability of post-hiring agreements, you should consider providing additional consideration, such as bonus, raises, promotions, or benefits.  Inception of employment is consideration for the on-hire non-compete.

The term “non-compete” is used to describe three types of restrictive covenants, and people use the term interchangeably. Continue reading »

Missouri’s New Marijuana Amendment: Workplace Testing and Employees “Under the Influence”

Missouri’s newly approved constitutional Amendment 3 regarding marijuana use will go into effect on December 8, 2022.  With a total of 49 pages, the Amendment 3 has two sections: revised Section 1 (former Amendment 2), which focuses on medicinal use, and Section 2, which focuses on marijuana recreational use.

Employers have long had Drug-Free Workplace policies that test employees for various illegal drugs.  Common tests are pre-employment, random, reasonable suspicion, and fitness for duty/return to work/follow up after rehab or last chance.

The original Amendment 2 regarding medicinal use was passed in 2018.  Employers responded to this amendment in several ways including choosing to keep their policies the same but providing reasonable accommodation under the disability statutes or to simply quit testing for THC altogether except for reasonable suspicion.

Now, employers will have to go back to the drawing board.

Section 1: Medicinal Use of Marijuana

Section 1 of Amendment 3 revises the original Amendment 2 in its entirety. One of the revisions/additions includes adding a nondiscrimination in employment section. It prohibits employers from discriminating against “medicinal cardholders” based on off-duty use unless the person was “under the influence of medical marijuana” at or during work. Further, it specifically prevents employers from relying solely on a positive THC test result to terminate a medicinal cardholder unless the person used, possessed, or was “under the influence” of medical marijuana at or during work.

There are exceptions to the “under the influence test” for medicinal cards for the following situations:

1. If the employer would lose a monetary or licensing related benefit under federal law,
2. If the employee has a job where “legal use of a lawful marijuana product affects in any manner a person’s ability to perform job-related employment responsibilities, or
3. If it conflicts with a bona fide occupational qualification that is reasonably related to a person’s employment.

This exception protection does not appear to apply to “recreational” users who do not have a “medicinal card.”

There is no readily available test to scientifically confirm whether someone is “under the influence of marijuana” nor what the threshold of impairment is under BAC for alcohol. How long a person will test for marijuana depends on a multitude of factors but is not limited to: Continue reading »

Missouri Employers and Abortions as Healthcare: Don’t Ask, Don’t Tell

Authored by Ruth Binger with assistance from Sarah L. Ayers, contributor

The recent U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization triggered a ban on abortion in Missouri and several states. In 2019, Missouri passed the “The Right to Life of the Unborn Child Act,” an anti-abortion bill which included a trigger ban on abortions. In the event Roe v. Wade was ever overturned, the Governor or Attorney General was to issue a statement implementing the ban. Missouri Attorney General Eric Schmitt issued a statement proclaiming the trigger law in effect as of Friday, June 24, 2022, at 9 a.m. following the Dobbs decision.

A variety of new legal questions related to abortion and healthcare have arisen since the decision was announced and states, such as Missouri, have enacted trigger bans. One example of the confusion involves life-saving abortions in cases of a medical emergency. Under a new regulation issued by the Biden administration, a life-saving abortion in cases of a medical emergency is a federally protected procedure. Leaders in several states have challenged the regulation.

Another issue lies with pre-Roe bans in states which outlaw abortion and whose legality today is still questionable even with the reversal of Roe. Many states with pre-Roe bans are in the process of putting updated laws on the books that either re-affirm restricting abortion or protect abortion. Kansas voters recently rejected a proposed state constitutional amendment stating there is no right to abortion within the state. Other questions raised include: How will the laws be enforced? Who can be charged with conspiracy in states under a ban (such as Missouri)? Can a state with an abortion ban exclude a fetus from being considered a person in other areas of the law? Continue reading »

Business Beware: You Can’t Take Deceptive Steps to Manipulate the Collection or Publishing of Negative Reviews on Your Website

Businesses are to avoid potentially deceptive conduct that would confuse consumers under Section 5 of the Federal Trade Commission Act, and the FTC is now focusing very heavily on deceptive customer reviews and endorsements. Deceptive conduct includes any conduct which treats positive and negative reviews unequally, thus misleading consumers of useful information and inflating the product’s star rating.

In one of its first cases, the FTC pursued Fashion Nova, LLC, a fast fashion retailer that attempted to conceal negative reviews. According to the complaint, “Fashion Nova used a third- party online product review management interface to post four- and five-star reviews and hold off on lower star reviews [estimated in the hundreds of thousands] for the company’s approval.” Fashion Nova never approved or posted the lower star reviews. In its settlement with the FTC, Fashion Nova is prohibited from suppressing customer reviews of its products and is required to pay $4.2 million to settle the FTC’s allegations.

What does this mean for businesses that use or consult regarding consumer reviews? Continue reading »