Question 1

What is meant by the "administrative state" or the "fourth branch" of government?

Accepted Answer

The administrative state refers to the collection of federal agencies, such as the Department of Labor and the National Labor Relations Board, that have grown over decades to exercise significant power alongside the traditional legislative, executive, and judicial branches. (Timestamp: 00:58)

Question 2

What was the Chevron decision and why was it significant?

Accepted Answer

The 1984 Chevron decision established a rule of deference, which meant that when a statute had a "lacuna" or ambiguity, the judicial branch should defer to the administrative agency's interpretation of that law. This effectively put a "thumb on the scale" in favor of the agency during legal challenges.(Timestamp: 01:51)

Question 3

How did the Supreme Court change the way labor law exemptions are read in Encino Motorcars?

Accepted Answer

In Encino Motorcars, the Court shifted away from the "remedial" approach of strictly and narrowly construing exemptions to favor employees. Instead, it ruled that exemptions are entitled to a "fair reading" just like any other statutory provision. (Timestamp: 07:32)

Question 4

What is the Major Questions Doctrine?

Accepted Answer

The Major Questions Doctrine is a litmus test used by the Supreme Court to determine if an administrative agency has exceeded its authority. It holds that for issues of vast importance or "massive questions," an agency cannot rely on general statutory language; instead, Congress must clearly and specifically delegate that authority. (Timestamp: 12:35)

Question 5

Did the Supreme Court allow OSHA to mandate COVID-19 vaccines for employees?

Accepted Answer

No; the Supreme Court found that OSHA exceeded its statutory authority. The court determined that compelling employees to take a vaccine was not within the scope of what the Occupational Safety and Health Act was designed to cover.&nbsp;(Timestamp: 14:25)

Question 6

What did the Loper Bright decision do to Chevron deference?

Accepted Answer

The 2024 Loper Bright decision specifically overruled Chevron. The Court ruled that judges should no longer defer to an administrative agency's interpretation of the law, but must instead use their own judgment and interpretation principles.&nbsp;(Timestamp: 20:29)

Question 7

How did the Corner Post case change the statute of limitations for challenging federal regulations?

Accepted Answer

The Court ruled that the window to challenge a regulation under the Administrative Procedure Act (APA) is a statute of limitations, not a statute of repose. This means a party can challenge a rule within five years of being "aggrieved" or injured by it, even if the rule was originally issued much earlier.&nbsp;(Timestamp: 24:33)

Question 8

Does an employer have a right to a jury trial in cases involving administrative fines?

Accepted Answer

Yes; in the Jarkesy decision, the Court held that if an agency is seeking money damages or civil penalties, the Seventh Amendment provides a right to a jury trial. Such cases must be heard by an Article III judge rather than through a purely administrative proceeding. (Timestamp: 27:23)

Question 9

Can the President fire members of independent agencies at will?

Accepted Answer

While the 1935 Humphrey&rsquo;s Executor case allowed Congress to restrict the President's power to remove certain officials, recent legal challenges suggest the Court may be narrowing this rule. Current litigation involving agencies like the NLRB and the Consumer Protection Board explores whether these removal protections unconstitutionally interfere with the President's duty to faithfully execute the law.(Timestamp: 39:22)

Question 10

What is the current legal standard for an employer to deny a religious accommodation?

Accepted Answer

The Supreme Court established in Groff v. DeJoy (2023) that an employer must show that a religious accommodation would cause an "undue hardship," which is now defined as "substantially increased costs" to the business. (06:03)

Question 11

Does an employer have to violate a union contract to provide a religious accommodation?

Accepted Answer

No, the courts generally still recognize it as an undue hardship if an accommodation would require the breach of a seniority provision in a collective bargaining agreement. (07:01)

Question 12

What did the Trump administration&rsquo;s executive order on gender ideology change?

Accepted Answer

Executive Order 14168, "Defending Women from Gender Ideology Extremism and Restoring Biological Truth," reversed previous policies that allowed individuals to self-identify on federal documents like passports. (08:26)

Question 13

Are employers required to let employees use the bathroom of their choice based on gender identity?

Accepted Answer

Current guidance has moved away from requiring access based on gender identity toward biological sex; however, providing a private or neutral restroom remains a recommended solution to resolve objections from other employees. (24:36)

Question 14

Can an employer stop an employee from wearing a t-shirt with a religious slogan?

Accepted Answer

Yes, provided the employer has a consistent "no slogans" policy that is applied neutrally to all clothing, such as sports team logos, and is not specific to religious messages. (30:53)

Question 15

Is a beard or headscarf protected as a religious accommodation in the workplace?

Accepted Answer

Generally, yes. Courts typically allow these expressions of belief unless the employer can prove a specific safety reason, such as the risk of a headscarf getting caught in manufacturing machinery. (30:53)

Question 16

How does a court determine if a religious belief is valid for an accommodation?

Accepted Answer

The court typically investigates whether the belief is part of a recognized religion and, crucially, whether the belief is "sincerely held" by the employee rather than a matter of personal convenience. (38:14, 39:53)

Question 17

Does the law protect religious expression for all faiths or just Christians?

Accepted Answer

Title VII protects religious liberty for all recognized religions, including Christians, Muslims, and Jews, and the EEOC principles for protection are intended to be neutral. (35:52, 36:41)

Question 18

What is the difference between disparate treatment and disparate impact under Title VII?

Accepted Answer

Disparate treatment refers to intentional discrimination where an employer treats a protected group less favorably. Disparate impact, or adverse impact, involves neutral employment practices that are not intentionally discriminatory but result in a significantly lower selection rate for protected groups. Both theories are recognized under Title VII of the Civil Rights Act.

Question 19

What was the significance of the Griggs v. Duke Power Supreme Court ruling?

Accepted Answer

Griggs v. Duke Power established that employment practices&mdash;like high school diploma requirements&mdash;are unlawful if they have a discriminatory effect on protected groups, regardless of intent. Unless an employer proves the criteria is a job-related business necessity, unintentional discrimination via neutral hiring requirements is prohibited under federal law.

Question 20

How is adverse impact calculated using the four-fifths rule?

Accepted Answer

The four-fifths rule is a simplified metric where adverse impact is identified if the selection rate for a protected group is less than 80% (four-fifths) of the rate for the highest-selected group. While standard deviation analysis provides more sophisticated statistical evidence, the four-fifths rule remains a common thumb-rule for employers.

Question 21

What qualifies as a "test" or selection criteria under federal employment law?

Accepted Answer

Under the law, a "test" encompasses any selection criteria used to make employment decisions, not just written exams. This includes educational requirements, prior experience levels, criminal record checks, and physical or electronic screening systems. Any of these criteria can be challenged if they produce a substantial adverse impact.

Question 22

How can an employer legally defend a hiring practice that has an adverse impact?

Accepted Answer

Employers must demonstrate that the criteria is a "job-related business necessity" through validity studies. This involves proving the test accurately predicts successful job performance using criterion-related, content, or construct validity. Common examples include showing that an experience requirement or a specific skill test directly measures essential work functions.

Question 23

Is the EEOC still enforcing adverse impact or disparate impact cases?

Accepted Answer

The EEOC and Department of Justice recently shifted enforcement priorities to focus on individual rights and intentional discrimination rather than statistical "numbers games." While the federal government may no longer investigate or sue based on adverse impact theories alone, private plaintiffs still aggressively pursue these cases in court.

Question 24

Should employers maintain applicant flow logs with race and sex data?

Accepted Answer

While the EEO-1 report requires data on current employees, there is no federal obligation to maintain racial or sexual identification logs for unsuccessful applicants. Not keeping this data makes it significantly more difficult for private plaintiffs to establish the statistical evidence required to bring an adverse impact lawsuit.

Question 25

Can I pay an employee purely on commission?

Accepted Answer

Yes, but only if they qualify for specific exemptions, such as the "outside sales" exemption. Outside salespersons do not have a salary requirement and are exempt from minimum wage and overtime laws. However, most other employees must receive at least the minimum wage. (Reference: 01:25)

Question 26

Does an inside salesperson qualify for the outside sales exemption?&nbsp;

Accepted Answer

No. If a salesperson works primarily from an office using a telephone or computer, they do not qualify as an outside salesperson. This is true even if their job duties are otherwise identical to those of a field representative. (Reference: 02:42)

Question 27

What are the requirements for the outside sales exemption?&nbsp;

Accepted Answer

The employee's primary duty must be making sales away from the employer&rsquo;s place of business. While there is no strict percentage test, they must regularly visit customers in person. Time spent in the office for follow-up work related to those outside visits generally counts toward the exemption. (Reference: 03:29)

Question 28

Can inside sales employees be exempt under the administrative exemption?

Accepted Answer

Generally, no. Courts typically rule that sales work falls under "production" (producing the results of the business) rather than "administration" (running the business). Therefore, inside salespeople are usually entitled to overtime pay. (Reference: 06:24)

Question 29

What is the Section 7(i) overtime exemption?&nbsp;

Accepted Answer

This is a specific exemption for employees of retail or service establishments. To qualify, the employee&rsquo;s regular rate of pay must exceed 1.5 times the minimum wage, and more than half of their total compensation must come from commissions. (Reference: 08:46)

Question 30

What is the difference between a commission and a piece rate?&nbsp;

Accepted Answer

A commission is usually a percentage of a sale's value or profit. A piece rate is a set payment for a unit of production, such as a flat fee per square foot of material installed. Unlike some commissioned roles, piece-rate workers are never exempt from overtime. (Reference: 12:10)

Question 31

How do I calculate overtime for a commissioned employee?&nbsp;

Accepted Answer

You must find the "regular rate" by dividing the total weekly commission by the total hours worked. You then owe the employee an additional half of that regular rate for every hour worked over 40. (Reference: 15:02)

Question 32

Do stockbrokers and financial advisors get overtime?&nbsp;

Accepted Answer

They can be entitled to overtime if they work primarily in an office and are not paid a guaranteed salary of at least $685 per week. High total earnings do not automatically make an employee exempt from overtime. (Reference: 18:56)

Question 33

Can I deduct a loan repayment from an employee&rsquo;s commission?&nbsp;

Accepted Answer

Yes, provided there is a written, voluntary agreement. However, you must be careful not to deduct from the guaranteed salary portion of an exempt employee&rsquo;s pay, as "busting" the salary can trigger a loss of the overtime exemption. (Reference: 33:10)

Question 34

Can an employer change a commission plan retroactively?&nbsp;

Accepted Answer

No. A commission plan is a contract. You can change the terms for future sales by providing written notice, but you cannot legally reduce the commission rate for sales that have already been completed. (Reference: 37:30)

Question 35

Can I withhold commissions if an employee leaves the company?

Accepted Answer

In many states, earned commissions cannot be forfeited upon termination. However, you can define in your contract that a commission is not "earned" until the company actually receives payment from the customer. (Reference: 39:15)

On-Demand Webinar

Reflections: 2022 in Review

Reflections: 2023 in Review

Reining In the Administrative State: What the Supreme Court Has Been Up To, and Why it Matters for Employers

Resolving Conflict Between Religious Expression and the Civil Rights of Others

Sometimes We Just Have to Talk About It: Navigating New Rules on Religious Accommodation

Status of Disparate Impact Theory of Discrimination – Hiring Procedures Disproportionately Affecting One Racial or Sexual Group Over Another

Strategy for Meeting the New White-Collar Overtime Exemption Requirements

Suffer the Little Children: 21st Century Child Labor Challenges

Supreme Court Affirmative Action Ruling: What Employers Need to Know

The Perils and Pitfalls of Commissions

Tips on Tipping for Georgia Restaurateurs — Part 1: Mastering Wage & Hour Regulations

Tips on Tipping for Georgia Restaurateurs — Part 2: Navigating FLSA Compliance & Liability Avoidance

TIPS: A Fresh Look at Tip Tax Exemptions & Their Implications

Understanding the New Pregnant Workers’ Fairness Act

Webinar: Employee Misclassification and Overtime Issues

Webinar: What you Need to Know About Union Organizing

Webinar: 10 Things That Might Make Your Company an Attractive Target to a Plaintiff’s Lawyer

Webinar: Covid-19 What Employers Need to Know

Webinar: Employee or Independent Contractor: It’s Not Just a Matter of Choice

Webinar: Love is a Battlefield: The Intersection of Workplace Romance and Sexual Harassment

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