The Fifth Circuit has long held that pain and suffering damages and punitive damages are not recoverable under the ADEA. The Fifth Circuit has also expressed its intent to interpret remedies under the ADEA and FLSA consistently with each other since the ADEA incorporates the FLSA’s remedies provision. Thus, you would think that pain and suffering and punitive damages would not be recoverable in a FLSA retaliation case.

Not so fast. In a decision issued on December 16, 2016, a three-judge panel reaffirmed that pain and suffering and punitive damages are not recoverable for ADEA discrimination or retaliation claims. Only three days later, however, another Fifth Circuit panel issued a decision finding that emotional distress damages are recoverable in FLSA retaliation cases. In so holding, the two panels cited the same 1977 seminal case, Dean v. American Security Insurance Co., but reached different conclusions under similarly worded provisions of the two statutes. Obviously, the two panels did not interpret remedies available under the ADEA and the FLSA consistently.
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white collarAs most are aware, on May 18, 2016, the U.S. Department of Labor (DOL) released its much anticipated final rule, drastically increasing the salary requirements to qualify as an exempt executive, administrative or professional employee. The DOL estimates that the final rule will extend overtime protections to 4.2 million workers in the first year of implementation and boost wages by $12 billion over the next 10 years. The rule is set to become effective Dec. 1, 2016.
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Gun controlRecently, Husch Blackwell partners Stephen Cockerham and Kevin Koronka presented a webinar to Texas employers concerning the impact legislation concerning gun rights may have on employers. The Fifth Circuit Court of Appeals, the federal appellate court with jurisdiction over Texas federal district courts, recently released a decision concerning employee gun rights of which employers, particularly those with Mississippi employees, should take note.
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keyboard_iStock_000003183204Small-computerkeyboardThe Wall Street Journal is reporting  that the Department of Labor’s new overtime regulations are not likely to be final and implemented until late 2016. As we discussed in prior posts, in June of this year the DOL proposed regulations that would significantly increase the salary basis test for most FLSA exemptions. The proposed change would make several million more employees eligible for overtime payments, which could have a significant impact on an employer’s bottom line. Many commentators and employers were anticipating the new regulations would go into effect either late this year or early 2016. According to the WSJ report, however, the DOL’s Solicitor of Labor, Patricia Smith, recently commented at a labor and employment law conference that the new regulations are not likely to be final before late 2016. According to the report, Ms. Smith noted the DOL received approximately 270,000 comments in response to the proposed regulations and that this, along with the complex nature of the changes, warranted additional time to complete the regulations.
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rings-iStock_000007928926_LargeThe Department of Labor (“DOL”) published its final rule on Feb. 24, 2015, relating to the definition of “spouse” under the Family and Medical Leave Act  (“FMLA”) Regulations. Beginning March 27, 2015, when the final rule becomes effective, the definition of “spouse” for purpose of FMLA leave will include eligible employees in legal same-sex marriages. Prior to this rule change, same-sex partners were only considered spouses if their marriage was recognized in the state where they lived. Under the new rule, the focus shifts to where the marriage was “celebrated.” Accordingly, if the marriage is legal under the law of the state where the marriage was performed or “celebrated,” the same-sex marriage is legal for purposes of the FMLA regardless of state law where the employee lives.
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Flags of the word with China -148474930U.S. Citizenship and Immigration Services announced it will be extending U.S. employment authorization to certain H-4 spouses of foreign nationals in H-1B status. Family members of H-1B workers are permitted to enter the United States in H-4 status as dependents of the H-1B worker, but they are not authorized to work. This change permits spouses in H-4 status to apply for an unrestricted work card provided the principal H-1B employee:

  1.  Is the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
  2. Has been granted H-1B status under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), which permits H-1B employees seeking permanent residency to extend their H-1B status beyond the usual six-years.


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dollar-signiStock_000013001848_LargeIn March 2014, President Obama directed the Secretary of Labor to prepare and propose new FLSA regulations. These new rules were to be announced late last year, but have been repeatedly delayed. Now it appears the new rules will be announced later this month. While the scope of the changes is unknown, it is anticipated the changes will reduce the number of employees who qualify for exempt status.
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