Labor & Employment

In April, the U.S. Department of Labor issued its final overtime rule,under which the salary level for the white-collar Fair Labor Standards Act overtime exemption will be $1,128 per week, effective January 2025.

To comply with the Immigration and Nationality Act, the U.S. Department of Labor requires that H-2B visa workers, who are employed in less-skilled seasonal work, must be paid at least the prevailing wage for their occupation and work location.

The Department of Labor’s (DOL’s) September 8, 2023 Notice of Proposed Rule Making (NPRM) increases the standard salary level for the white-collar exemption to the 35th percentile of the pay distribution of full-time, non-hourly workers in the South Census region and imposes automatic updates to the salary threshold every three years.  The automatic adjustments would use the most recent quarterly data from the Current Population Survey to determine the 35th percentile of the pay distribution for full-time non-hourly workers in the South Census region. 

The Department of Labor’s September 8, 2023 Notice of Proposed Rule Making (NPRM) increases the salary threshold for the white-collar FLSA exemption.  In the NPRM, the Department explains that the purpose of the salary level test is to serve as an initial screening tool.[1]  It then goes on to downplay the extent to which the new threshold will increase the fraction of white-collar workers who will fail the salary level test by stating “the number of salaried white-collar employes for whom salary would be determinative of their non-exempt status and who earn at least the long test salary level – 3.2 million – is nearly ten times smaller than the number of salaried white-collar workers for whom job duties would continue to be determinative of their exemption status…”[2] 

Dr. Stephen Bronars of Edgeworth Economics analyzes the anticipated new salary thresholds for the Fair Labor Standards Act, expected to be proposed in May.

Dr. Stephen Bronars of Edgeworth Economics analyzes the Federal Trade Commission’s stance that non-compete clauses reduce worker earnings across industries, saying that research doesn’t support this conclusion.

In this article, Edgeworth CEO Dr. John Johnson and Edgeworth President Chuck Fields, along with Kirkland & Ellis Partner James H. Mutchnik, map the DOJ’s evolving position over time and discuss both the legal and economic reasons why it is improper to presume that all such agreements should be treated under a per se standard as de facto market allocation.

The Congressional Progressive Caucus recently proposed an increase in the salary threshold that they claim will reach $82,732 by 2026 — $1,591 per week. Businesses required to accurately record the work hours and accurately calculate regular rates of millions of managers and professionals, many of whom receive bonuses and commissions, are likely to face a considerable increase in compliance costs.

In this article Dr. Stephen Bronars quantifies the impact of the new $15 minimum wage for three contractor jobs that were identified by the White House in its announcement of the executive order. He shows that the impact of a $15 minimum wage for janitors, cafeteria attendants and nursing assistants varies substantially by metropolitan area.

Headlines announcing impending layoffs and furloughs abound as the economy declines due to the spread of the COVID-19 virus and a downturn in the oil and gas sector. Depending on the demographics of their employees, some firms may be particularly susceptible to risk of adverse impact in layoff and furlough decisions.

Edgeworth Partners Dr. Stephen Bronars and Dr. Deborah Foster discuss the Department of Labor's recent proposal to increase the HCE salary threshold from $100,000 to $147,414. 

By 2022, the California minimum wage will be $15, and it will increase annually after that based on inflation. The California white collar exemption requires that employees be paid twice the minimum wage. As a result, some employees who pass the duties test will soon be ineligible for the white collar exemption based on their salaries. Employers should review all jobs under the white collar exemption to ensure they remain above the threshold as the salary test level increases. Edgeworth's labor and employment experts have compiled a guide to the factors employers should consider when reviewing jobs with salaries close to the threshold.

In anticipation of future civil class actions related to no-poach and wage-fixing agreements, Edgeworth Partners Dr. Stephen Bronars and Dr. Deborah Foster have published a two-part primer in Law360 on wage analyses that are frequently used in employment discrimination cases and will become increasingly relevant as labor issues cross over into the antitrust arena.

In anticipation of future civil class actions related to no-poach and wage-fixing agreements, Edgeworth Partners Dr. Stephen Bronars and Dr. Deborah Foster have published a two-part primer in Law360 on wage analyses that are frequently used in employment discrimination cases and will become increasingly relevant as labor issues cross over into the antitrust arena.

The DOL's estimate of an additional 2.5 percent increase in the new salary threshold over three adjustments may not be accurate and likely understates its magnitude.

The pay ranges specified in the US Equal Employment Opportunity Commission's proposed EEO-1 forms are broader than the pay differences it aims to detect. While the goal of determining instances of pay discrimination is sensible, the authors show that the proposed data collection system is unlikely to accomplish the objective.

In this Law360 article, Dr. Stephen Bronars and Dr. Nathan Woods discuss the possibly profound consequences of using external benchmarks when conducting analyses of age discrimination allegations.

Mr. Michael Kheyfets, Dr. Deborah Foster and Dr. Nathan Woods discuss the 10 questions you should ask your experts who are working with your sensitive data. 

Drs. Bronars, Foster, and Woods discuss the Department of Labor’s (DOL) proposed salary test for the white collar exemption to the Fair Labor Standards Act (FLSA).

Drs. Deborah K. Foster, Stephen G. Bronars, and Nathan D. Woods published the article “Approaches to Hourly Rates Under DOL White Collar Rules” in Law360.

Dr. Stephen Bronars and Chuck Fields, along with Christopher Craig of O’Melveny & Myers, co-authored the article in Law360.

This article by Dr. Nathan Woods is the third article in a three part series discussing the statistical analysis of class certification topics in wage-and-hour class and collective actions.

This article by Dr. Nathan Woods is the second article in a three part series discussing the statistical analysis of class certification topics in wage-and-hour class and collective actions.

This article by Dr. Nathan Woods is the first article in a three part series discussing the statistical analysis of class certification topics in wage-and-hour class and collective actions. 

Dr. Korenko published an article in Law360 that discusses the idea of fairness in executive compensation from an economic perspective.

Dr. Jesse David completed analysis of comprehensive concussion and injury data for the 2011 NFL season, along with comparisons to prior seasons going back to 2004.

This article examines recent class actions, including a review of the issues that affect economic analysis as it relates to antitrust matters.

Matthew Milner opined on the reliability of structured data in litigation, writing “Structured data is frequently the foundation of expert analysis in litigation for a variety of damages and liability issues."

In late June 2024, a four-day bench trial was held in the U.S. District Court for the Northern District of Texas to determine if American Airlines had violated its duties to employees by allowing the asset managers of its employees’ 401(k) plans to pursue environmental, social and governance (“ESG”) goals.

California’s minimum wage increased by 25% to $20 per hour on April 1 for limited-service restaurants with at least 60 locations in the U.S. Little attention has been paid to a part of the law that will cause thousands of managers in these businesses to lose their exempt status and may increase wage and hour lawsuits against these businesses.

On April 1 the minimum wage in California increased by 25% to $20 per hour for limited-service restaurants with at least 60 locations in the U.S.

Companies may be interested in assessing their compensation policies for a number of reasons. In a survey by the Society for Human Resource Management, three-quarters of firms responded that they regularly audit for pay equity across a variety of characteristics such as gender, race or ethnicity, and age.

The recent 25% increase in California’s minimum wage from $16 to $20, for limited-service restaurants (including fast-food restaurants, coffee shops, and juice bars) with at least 60 locations nationwide, has sparked controversy.

In April, the U.S. Department of Labor issued its final overtime rule,under which the salary level for the white-collar Fair Labor Standards Act overtime exemption will be $1,128 per week, effective January 2025.

In the Final Rule “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees” (Rule), the Department of Labor (DOL) dismisses concerns that the proposed mechanism for automatically updating the standard salary level will result in increases to the salary level above and beyond those related to wage growth. 

This article provides a preview of the range of H-2B wage increases mandated by the DOL. As explained in a recent analysis volatility in H-2B prevailing wages is caused by the DOL’s methodology and limited sample sizes, especially in less populated labor market areas, and may discourage employers from relying on the H-2B program.

To comply with the Immigration and Nationality Act, the U.S. Department of Labor requires that H-2B visa workers, who are employed in less-skilled seasonal work, must be paid at least the prevailing wage for their occupation and work location.

The American Bar Association Labor and Employment Section held its annual Equal Employment Opportunity Law Conference in Boston from March 19 to March 22, 2024. Over 200 attendees took part in the four-day conference.

We have developed a tool that provides a preview of the prevailing wages that the OFLC will officially announce on July 1, 2024. Our interactive tool focuses on 34 occupations that account for a majority of H-2B visas in over 3,000 combinations of states and counties.

Federal anti-discrimination laws in the U.S. protect applicants, employees, and former employees from employment discrimination based on race, color, religion, sex, national origin, age, disability, and genetic information. One dimension not included is discrimination based on an individual’s “caste.”

Farmers and ranchers who hire seasonal workers on H-2A visas will face prevailing wages in 2024 that are about 5.54% higher, on average, than in 2023.  This occurs after a large increase in H-2A wages between 2022 and 2023.  The H-2A visa program requires that visa workers, and domestic workers in corresponding employment, are paid at least the prevailing wage, or Adverse Effect Wage Rate (AEWR).  AEWRs are determined by the US Department of Labor (DOL) and vary by region.  AEWRs will increase in every region between 2023 and 2024 with the largest increases in Hawaii (8.64%), Alabama, Georgia, and South Carolina (7.39%), and Oregon and Washington (7.12%).

The NPRM claims the new salary threshold for the EAP exemption “will, in combination with the standard duties test, better define and delimit which employees are employed in a bona fide EAP capacity in a one-test system.”  However, the new salary threshold is set at the 35th percentile of the non-hourly pay distribution in the South region, which is $1,059 per week.  The non-hourly pay distribution includes many blue-collar workers and white-collar workers explicitly excluded from the FLSA (such as teachers), raising doubts as to whether an arbitrary threshold from this distribution has any ability to determine which EAP employees are bona fide.

The Department of Labor’s (DOL’s) NPRM provides estimates of the number of employees affected by the proposed salary test level increases, but projections are only as good as the data on which they are based.  In fact, there is no data currently collected that would enable an accurate and reliable estimate of the number of employees who are subject to the FLSA or how many employees are classified as exempt, much less an estimate of those that would be impacted by the proposed changes. 

The NPRM touts that an estimated 3.4 million employees will “gain overtime protection” under the proposed regulations.  As described in our post on October 25, it is unlikely that the new rule will increase compensation of the re-classified employees.

The Department of Labor claims that the increased salary test level will “give employees higher earnings in the form of transfers of income from employers to employees,” but that assertion is inconsistent with economic reasoning.  Even the economic studies cited in the NPRM cast doubt on that assumption. 

On September 8, 2023, a Notice of Proposed Rule Making (NPRM) from the Department of Labor was published in the Federal Register titled “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees.”

The Department of Labor’s Notice of Proposed Rulemaking (NPRM) regarding the white-collar exemption to the Fair Labor Standards Act (FLSA) includes an initial regulatory flexibility analysis that is required for all regulations that will have a material impact on small businesses.  In that analysis, the Department concludes that 1.3 million workers employed by between 179,700 and 1.3 million small businesses will be impacted by the substantial increase in the white-collar exemption salary threshold in the NPRM.  However, that analysis almost certainly understates the impact on small businesses.

Employers may not be paying attention to BIPA and resulting litigation in Illinois, but they should. BIPA class action lawsuits have surged since 2015, and filings are expected to reach new heights by the end 2023 [1]. Similar proposals, often modeled after BIPA, have emerged in Arizona, Hawaii, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, New York, Tennessee, Vermont, and Washington, and others are likely to follow [2] [3].

When tasked to quantify potential pay gaps between gender or race groups, economists usually rely on multivariate regression analysis. In pay equity studies, this regression estimates the average pay difference between male and female employees after accounting for important factors which affect pay. However, if any of those factors (known as control variables) are measured with error, pay differences might erroneously be attributed to gender and biased results can emerge.

Dr. Stephen Bronars of Edgeworth Economics analyzes the Federal Trade Commission’s stance that non-compete clauses reduce worker earnings across industries, saying that research doesn’t support this conclusion.

Farmers and ranchers who hire foreign-born seasonal workers on H-2A visas will face prevailing wages in 2023 that are about 9.36% higher, on average, than the prevailing wages for H-2A workers in 2022.

Edgeworth Economics President Chuck Fields and Principal Consultant Dr. Stephanie Cheng recently presented on this topic at the DC SHRM 2022 Annual Conference. This post summarizes their key takeaways from that event.

Federal and state labor laws limit which employees can legally be paid a salary independent of hours worked. The Fair Labor Standards Act (FLSA) is the Federal law requiring that certain workers receive overtime compensation, at 1.5 times their regular rate of pay, for all hours of work above 40 each week.

On March 7th, the Treasury Department released a draft report entitled “The State of Labor Market Competition” (herein “the report” or “the Treasury”), which addressed the level of concentration and anti-competitive labor practices in the U.S. economy. The report claimed to reaffirm the current administration’s executive orders regarding promoting competition in labor markets and examines possible implications.

We gathered our Labor and Employment experts together and asked them:  What is the “Great Resignation,” and what does it mean for employers?

Excerpts of their wide-ranging conversation were lightly edited for clarity and reported here.

Join our speakers in this CLE webcast as they delve into the latest developments in class action litigation and reveal essential best practices.

Join expert labor economists from Edgeworth Economics and Kevin White, co-chair of the Hunton Andrews Kurth Labor and Employment team, on July 21 for this complimentary webinar addressing key legal issues arising in the COVID-19 world of which employers should be aware.

Dr. Stephen Bronars will speak at the 56th Annual Meeting of the National Council of Agricultural Employers (NCAE), to be held February 4-6, 2020 in Washington, DC.

Dr. Deborah Foster will speak at the 16th Annual Georgetown Law AEDI plenary panel entitled, "Statistics: Oh What Stories Your Data Can Tell."

Dr. Nathan Woods will be a panelist at the 13th Annual Labor and Employment Law Conference, sponsored by the ABA Section of Labor and Employment Law. 

Dr. Stephen Bronars will be a featured presenter at the 15th Annual Employment Practices Liability Insurance ExecuSummit. Dr. Bronars will join the panel entitled, "Pay Parity and the Revival of the EEOC Pay Data Survey."

Edgeworth Partner Dr. Stephen Bronars will join a panel discussion focused on key issues involving the US H-2B visa program. 

Edgeworth Partner Dr. Stephen Bronars will present “A Labor Economist’s View of the Problems with AEWR,” on the first day of the 55th Annual Meeting of the National Council of Agricultural Employers (NCAE), to be held February 5-7, 2019 in Washington, DC. 

Edgeworth Partner Dr. Stephen Bronars will discuss the impact of wage and employment claims on the bankruptcy process, including the decision of a company to file a bankruptcy, and issues involved in bankrupty and restructuring. 

Edgeworth Partner Dr. Nathan Woods will discuss the types of data and analyses that will be critical for organizations to leverage in preparing for and responding to predictive scheduling laws.

Edgeworth Partner Dr. Nathan Woods will discuss the types of data and analyses that will be critical for organizations to leverage in preparing for and responding to predictive and flexible scheduling laws.

Edgeworth Economics Partner Dr. Nathan Woods will present on pay equity alongside Phelps Dunbar Partner Reed Russell at the Wage & Hour Defense Institute (WHDI)’s annual Spring Meeting, to be held May 4, 2018 in Nashville, TN.

Dr. Stephen Bronars is to present at the 89th Annual Meeting of the National Council of Farmer Cooperatives.

Dr. Stephen Bronars is to present at the 54th Annual Meeting of the National Council of Agricultural Employers.

Join Dr. Nathan Woods for a live webinar discussing the fast-approaching compliance deadlines following the DOL's final overtime exemption rule.

ACI will host its annual National Forum on Employment Discrimination Litigation, where Dr. Stephen Bronars will discuss economic damages and statistical issues in employment discrimination cases.

Join Edgeworth's Dr. Nathan Woods and fellow experts as they examine the economic impact of the DOL's overtime exemption rule in this live webinar.

In this two-hour live webcast, hosted by The Knowledge Group, Dr. Deborah Foster will serve on a panel of seasoned leaders and professionals who will help the audience understand the most important aspects of Wage and Hour Class Actions. 

Dr. Stephen Bronars will discuss the Final Rule on Overtime Exemption under FLSA during a panel session on wage and wage-related issues that can impact the viability of a business and impede a successful Plan of Reorganization. 

Dr. Foster will present on "The Latest on the New WhiteCollar Exemption Overtime Regulations: Analyzing the Practical Implications of the New Rules, Strategies for Minimizing Litigation Risks, and Defending Against Claims of Violation Once Litigation is Brought."

The Department of Labor has issued its much-anticipated Final Rule profoundly redefining white collar exemption under the FLSA. Dr. Nathan Woods will join a BLR webinar on the action plan employers need to set into motion now to ensure that compliance is met on December 1, 2016, the effective date of the DOL’s final rule. 

Edgeworth has been invited to speak on the DOL's Final Rule on Overtime Exemption under FLSA at the Annual Retail & Hospitality Executive Summit in Pebble Beach, CA on May 25, 2016, hosted by Kronos, a global leader in delivering workforce management solutions.

In this webinar, to be hosted by Bridgeport Continuing Education Programs, Edgeworth Economics Partners Chuck Fields and Dr. Deborah Foster will join Dr. Brandy Ware and Dr. Anand Subramanian of JFA Associates, to provide several options available to estimate work time and understand employees' activities so that firms can make informed decisions regarding employee classification.

Edgeworth Partner Dr. Stephen Bronars was cited in a  Bloomberg Law article, "Job Market Is Tougher for Recent College Grads Than All Workers." Read more>

Dr. Deborah Foster cited by the California Court of Appeal in matter relating to improper rounding and regular rate of pay in California law.

In Edgeworth’s first decade, the firm has become one of the world’s leading economic consultancies, distinguished at the forefront of antitrust, class certification, intellectual property, and labor and employment, in North America and China.

An Edgeworth Economics team was retained by two California hospitals accused of violating California labor law by using a payroll system that automatically rounded employees’ hours up or down to the nearest quarter-hour. 

Dr. Stephen Bronars cited in multiple sources regarding trends in US farm labor supply.

On June 8, 2016, Edgeworth Economics Partner Dr. Stephen Bronars was called to testify before the Senate Subcommittee on Immigration and the National Interest regarding the economic impact of the H-2B Temporary Foreign Worker Program on the wages of US workers.

Edgeworth Economics Partners Dr. Stephen Bronars and Dr. Nathan Woods have published an article in Law360 entitled "How Estimates Can Miss The Mark On Age Discrimination."

Edgeworth Economics is pleased to announce that Dr. Stephen G. Bronars has joined the firm as a Partner in the Washington, D.C., office. 

Edgeworth Economics is pleased to announce that labor and employment expert Dr. Deborah Foster has joined the firm as a Partner in the Washington, D.C., office.

Edgeworth Economics is pleased to announce that Dr. Nathan Woods has joined the firm as a Partner in the Washington, D.C., office. Dr. Woods specializes in class action wage and hour disputes and employment discrimination matters at the state and federal levels. 

Edgeworth Economics, today announced that Michael Kheyfets has been promoted to Partner in the firm’s Washington, D.C., office.

Dr. John Johnson, Edgeworth CEO, will speak about pay equity, EEOC and OFCCP at the Jones Day Labor & Employment Discussion Group on April 9, 2013.

Edgeworth Partner, Dr. George Korenko, published an article in Law360 that discusses the economics behind executive compensation, including compensation values and fairness. 

Senior Vice President, Dr. Jesse David provides a statistical analysis of 2011 NFL concussion and injury data.

Edgeworth Economics announces the addition of University of Michigan Law Professor and economist J.J. Prescott as a senior academic affiliate.

Dr. John Johnson discussed the importance of statistical data analysis to economic issues of class certification in wages and hours litigation post Dukes and Brinker. 

Edgeworth Economics extends a warm congratulations to Dr. John Johnson on being selected as a finalist for Global Competition Review’s  2012 Economist of The Year.

Washington, DC – Edgeworth Economics LLC is pleased to announce that Dr. George Korenko, an expert economist, has joined the firm. 

Edgeworth President and CEO Dr. John Johnson discusses the use of statistical analyses in systemic discrimination in Law 360. Taking pregnancy discrimination class actions as the example, they discuss the importance of appropriate control groups, econometrics and robustness tests.  

A study conducted by Edgeworth Economics for the NFL Players Association was mentioned in an Associated Press article carried by The Wall Street Journal and other leading publications.  The study demonstrated the economic impact of the NFL season on host cities throughout the United States. 

In finding for summary judgment on behalf of Bloomberg L.P., Judge Loretta A. Preska cited heavily Dr. Johnson’s statistical evidence in favor of Bloomberg, calling it “highly probative and uncontroverted.” Dr. Johnson’s testimony demonstrated that the compensation of alleged Class Members actually increased more than the compensation of employees who took leave for other reasons, contributing to a finding that the Plaintiffs' claims are “insufficient to demonstrate that discrimination was Bloomberg’s standard operating procedure.” 

Edgeworth Economics LLC, a boutique economic consulting firm, is pleased to announce the promotion of Mr. Chuck Fields to Senior Vice President.

Our expert reports for the NFL Players Association have received numerous mentions in the press over the past few months, including the Washington Post, Esquire magazine, and a CBS News affiliate. Edgeworth Experts analyzed the potential economic impact of a lockout, as well as the impact of injuries on salaries and retirement rates. 

Washington, D.C. – Edgeworth Economics has prepared a report titled “Dangers of the Game” for the NFL Players Association, analyzing player injuries in the 2010 regular season. This report was recently featured in a cover story on Esquire.com. Edgeworth found substantial increases in injury frequency and severity in the 2010 season.

Edgeworth President John H. Johnson and Senior Vice President Jesse David, along with economist Paul Torelli, discuss the unique circumstances surrounding antitrust cases that target labor markets.

Washington, D.C. - Edgeworth Economics is pleased to announce that Dr. John Johnson has been appointed an Assistant Editor of the Antitrust Law Journal for the 2010-2011 ABA year.

The FTC has put forward a rule banning non-compete agreements and Brent, Nathan, and Steve are here to investigate. Why do people sign non-competes in the first place? Would incomes rise if this restriction weren't on the labor market? How would we know? These are all questions the Stat Pack asks so bask in their task and try to relax!

Are the kids alright? Are they working hard enough? Steve, Nathan, and Brent break down the drama around summer employment among the youths and talk about some of the summer jobs they used to have.

Brent and Nathan plumb the depths of Steve’s mind to get to the bottom of the question on everybody’s mind: is there anything that Steve Bronars doesn’t know about the unemployment rate? Listen to find out! Spoiler: the answer is “probably."

Nathan, Brent, and Steve finally take on academic elites and their out of control theories about human capital, how it's measured, and whether it's important. Just kidding, this is a classic, balanced episode about human capital in theory and practice that's completely hinged. This episode doesn't just have economics though: it's also got science and art (kind of)!

Let's get meta right off the bat as Nathan, Brent, and Steve think about how we think about what's important. In this kickoff episode, they dive deep into the different ways things matter or mislead and Steve reminisces about a poll that came out when he was a wee lad.

Edgeworth Economics' new podcast featuring experts Dr. Steve Bronars, Dr. Nathan Woods, and Brent Butgereit premieres soon. Check out our trailer here!