The email platform that we use to send out our legal bulletins had issues in the past week, which we did not discover until late Wednesday. While the technical difficulties were occurring, we published two bulletins, but now we're not sure that they made it to everybody.

Since the blog uses a different email platform, I'm hoping you'll get today's blog email. And I'm linking to those two bulletins here, because you won't want to miss them. We hope our bulletin email platform will be back up and fully functional soon.

"Independent contractor," or "employee"? On January 10, our Wage and Hour Practice Heads Jim Coleman and Ellen Kearns had a bulletin about the new independent contractor regulations that were issued on January 9 by the U.S. Department of Labor. I hope you all got that one. But this week, during the email glitch, Ellen had a more detailed follow-up, in which she covered the six non-exclusive factors that the DOL will consider in determining whether a worker is an "employee" or an "independent contractor" for purposes of the Fair Labor Standards Act. The quick and dirty is that the new regulations will make it harder for businesses to claim that workers are "independent contractors." The regulations will take effect March 11 unless a legal challenge stops them. (Ellen also has the info about two of those challenges.)

NY pay frequency law: An appellate split. And last Friday, Tim Barbetta and Jason Friedman had a bulletin that will interest employers who have employees in New York. Under New York State law, manual workers have to be paid every week -- not every two weeks, and not twice a month. (Don't even think about monthly.) In 2019, a state appellate court held that employees could sue their employers under the law if they were paid less frequently than every week. Even if they got all their pay. As you might expect, the result was a deluge of class action lawsuits against employers.

But two weeks ago, a different state appellate court said that employees can't sue based on pay frequency, assuming the employees did get all the pay that was coming to them. So now the New York appellate courts are split, and the issue may go to the New York Court of Appeals, which is the state's highest court. Meanwhile, Democratic Gov. Kathy Hochul's Executive Budget Proposal for Fiscal Year 2025 includes a provision saying that employers are not liable for liquidated damages under the law just because they paid their manual workers less often than every week, provided that the workers do get paid and that the frequency of pay is at least semi-monthly.

But don't take my word for it! Get over to our website and read the bulletins -- you won't be sorry! Here are the links again:

Independent Contractor Rule: The 6 "economic reality" factors

NY appeals court says manual workers can't sue for being paid biweekly rather than weekly