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The Department of Labor’s (“DOL”) proposed new rules regarding the administrative, executive and professional exemptions (“EAP Exemptions”) under the Fair Labor Standards Act have created quite a stir, mainly because the DOL has proposed to raise the salary threshold for the EAP Exemptions from $23,660 to $50,440.  In addition, the DOL has also proposed to raise the salary threshold for the highly-compensated employee exemption from $100,000 to $122,148.  According to the DOL, these increases to the salary thresholds might cause as much as 4.7 million workers in the country to lose their exempt status.

That’s right.  4.7 million people.  Losing their exempt status.  Can you say “oh no…”?

oh no

Just recently, news has leaked from a “Democratic staffer” that the salary threshold for the EAP Exemptions might be raised to $47,000 per year (instead of $50,440).  While this figure it not as high as originally proposed, it is still going to be double the current salary threshold amount.  So yeah, you can still say “oh no…”

Otherwise, it sounds like the DOL is putting its finishing touches on the new FLSA rules and could be issuing the rules shortly.

 

So it has begun.  As of this morning, several lawsuits have been filed against the U.S. Department of Labor to invalidate the persuader rules mentioned in this post.

lawsuit

Specifically, the National Federal of Independent Business (“NFIB”) and National Association of Home Builders (“NAHB”) have both filed lawsuits arguing that the new rules violates business owners’ right to free speech under the First Amendment and make it nearly impossible to consult with legal counsel when faced with a union organization campaign.

In addition, a consortium of law firms that make up the Worklaw Network have also filed a lawsuit in a Minnesota federal court challenging the new persuader rule.  Their complaint argues that the final rule is contrary to the plain meaning of the “advice” exemption under the Labor Management Reporting and Disclosure Act.  In addition, the lawsuits also argue that the new rules violates several other laws, including free speech rights under the First Amendment, due process rights under the 5th Amendment, and the Regulatory Flexibility Act because the DOL failed to conduct a proper regulatory flexibility analysis.

Finally, the Texas Association of Business, the Texas Association of Builders, and the Lubbock Chamber of Commerce have also filed similar lawsuits in a Texas federal district court.  The lawsuits filed in Texas have also argued that the new rule violates the Due Process Clause of the 14th Amendment and the Regulatory Flexibility Act.

 

They’re finally here:  the DOL’s new persuader rules have been published in the Federal Register and – at first glance – they look pretty bad.  The DOL watered down their proposed rules just a lil’ bit, and even provided a small set of different rules to allow trade associations to engage in certain activity without triggering any reporting requirements, but overall the rules will be a game-changer for most employers.

discussionI’m currently going through the rules with a fine tooth comb (the rules are either 129 or 446 pages long, depending on whether you read the version with small print or the one with a larger font and double spacing).  In a nutshell, the new persuader rule will no longer accept the “accept or reject” test for the “advice” exception.  As a result, persuaders and employers will be required to file a report for “indirect” persuader activities, which could include the following:

  • Planning, directing, or coordinating supervisors or managers;
  • Providing persuader materials;
  • Conducting seminars; and
  • Developing or implementing personnel policies or actions.

It appears trade associations are exempt from the reporting requirements if they (1) host a counter-organizing seminar but bring in outside speakers or (2) simply provide “off the shelf” materials to an employer for a union campaign.  To get a firmer grasp on how these new rules will affect organizations like the Hawaii Employers Council (“HEC”), however, I need to read through the rules and examine them in more detail.

For anybody who wants to read up on the rules, you can view the following:

In addition, HEC will be providing a seminar on May 11, 2016 that will provide an overview of the new rules, a discussion of how the new rule will impact employers, instructions on how to fill out the LM-10 form for employers, and a review of some of the legal challenges that have arisen against these new rules.  That seminar will be available to HEC members only, and on a first-come-first-served basis.

Finally, once I have a chance to read through all the rules, I’ll prepare and send out an article summarizing the new rule – which will also be available only to HEC members.

 

The U.S. Equal Employment Opportunity Commission (“EEOC”) recently announced that it is seeking public input on proposed enforcement guidance addressing retaliation and related issues under federal employment discrimination laws.  The draft guidance can be viewed here:  EEOC Draft Guidance on Retaliation.

Comment button

In its proposed guidance, the EEOC outlines the elements of a retaliation claim (including protected activity and adverse action), provides an overview of EEO laws and regulations that prohibit retaliation, discusses the ADA interference provision, summarizes court decisions addressing retaliation claims, and provides “best practices” for employers.  Such best practices include (1) adopting written policies, (2) training, (3) providing anti-retaliation advice for employees, managers and supervisors, (4) follow-up, and (5) reviewing consequential employment actions to ensure EEO compliance

The EEOC has provided a 30-day period for the public to provide input on the draft guidance, which ends on February 24, 2016.  Such input may be provided using www.regulations.gov in letter, email or memoranda format.  Alternatively, hard copies may be mailed to:

Public Input, EEOC
Executive Officer
131 M. Street, N.E.
Washington, D.C. 20507

All public input will be posted on www.regulations.gov.  The EEOC’s last guidance addressing retaliation was issued in 1998.

 

The U.S. Department of Labor just issued a new fact sheet discussing Joint Employment and Primary and Secondary Employer Responsibilities Under the FMLA.

Under the FMLA, two or more employers can simultaneously employ an individual, making them joint employers of the individual.  Joint employment exists when an employee is employed by two (or more) employers such that the employers are responsible for compliance with the FMLA.  The analysis for determining joint employment under the FMLA is the same as under the FLSA.

Here are some highlights from the new fact sheet:

  • Where joint employment exists, one employer will be the primary employer while the other(s) will be the secondary employer(s).  Determining which employer is primary will depend on (1) who has authority to hire, fire, place and assign the worker; (2) who decides how, when and the amount the employee is paid; and (3) who provides the employee’s leave or other employment benefits.
  • In the case of temporary placement or staffing agencies, the agency is most commonly the primary employer.
  • Employees who are jointly employed get counted towards the 50-employee threshold for coverage under the FMLA for all employers.
  • For purposes of determining whether an employee works at a worksite where the employer empoys at least 50 employees within a 75 miles radius, the employee’s worksite is the primary employer’s office from which the employee is assigned.
  • Primary employers are responsible for giving required notices to the employees, providing FMLA leave, maintaining group health insurance benefits, restoring the employee to the same/equivalent job upon return from leave, and preserving all records required under the FMLA.
  • Secondary employers are prohibited from interfering with an employee’s exercise or attempt to exercise FMLA rights, or from discriminating against such an employee.

The end of the fact sheet also contains a helpful chart summarizing the responsibilities of primary and secondary employers.  A copy of the fact sheet can be viewed here:  DOL Fact Sheet #28N.

 

Per Act 19, Session Laws of Hawaii 2015, “electronic smoking devices” are now prohibited anywhere that smoking cigarettes or other tobacco products are also prohibited, including all enclosed or partially enclosed places of employment, as well as within 20 feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed or partially enclosed area where smoking is prohibited.  This new law took effect on January 1, 2016.

e-cig ban

An “electronic smoking device” is defined as any electronic product that can be used to aerosolize and deliver nicotine or other substances to the person inhaling from the device, including but not limited to the following:

  • Electronic cigarettes;
  • Electronic cigars;
  • Electronic cigarillos;
  • Electronic pipe;
  • Hookah pipe;
  • Hookah pen; and
  • Any cartridge or other component of the device or related product, whether or not sold separately.

Employers who have no smoking policies for their workplace should update those policies to also include electronic cigarettes as well.

 

This is a brief summary of regulatory changes that recently took effect for federal contractors.

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First, the pay transparency requirements under Executive Order 13665 just took effect earlier this week and apply to covered contracts entered into or modified on or after January 11, 2016.   As a reminder, EO 13665 prohibits federal contractors from discharging or otherwise discriminating against any employee or applicant because the individual has inquired about, discussed, or disclosed his own compensation or the compensation of another employee or applicant.  In addition, covered contractors must include a Pay Transparency Nondiscrimination Provision - and are prohibited from including any “pay secrecy” policies – in their employee handbooks.  The Pay Transparency Nondiscrimination Policy must use the language provided by the Office of Federal Contracts Compliance Programs, which can be found here:  PTNP.  (Also, as a reminder, the National Labor Relations Act also provides employment protection for individuals who discuss wages and other terms and conditions of employment with others.)

In addition, there is a new EEO is the Law Poster Supplement that federal contractors need to utilize in conjunction with the existing EEO is the Law poster.  The supplemental poster includes updated language regarding Executive Order 11246 with respect to gender identity and sexual orientation discrimination, pay secrecy, disability discrimination, and protected veterans.

Finally, the minimum wage for federal contractors who are covered by EO 13658 has increased to $10.15 per hour (or $5.85 per hour for tipped employees).  The current minimum wage poster for federal contractors can be found here:  Federal Contractor MW.