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In what appears to be a definitive answer to the question of whether employers must allow a transgender employee to use a restroom that is reserved for the sex with which the employee identifies, the EEOC has issued a fact sheet addressing bathroom access rights for transgender employees.

In its fact sheet, the EEOC cited to federal cases which found that denying an individual equal access to a common restroom corresponding to the individual’s gender identity is sex discrimination.  Similarly, an employer also cannot require a transgender employee to use a single-use restroom (or presumably, a unisex restroom, if a single sex restroom is available).  The EEOC has defined the term “transgender” as people whose gender identity and/or expression is different from the sex assigned to them at birth (e.g. the sex listed on an original birth certificate).

Of course, this is just the EEOC’s position on the matter, and there is no guarantee federal courts will adopt the same conclusion.  Nevertheless, the EEOC’s interpretation of the law is usually given deference by the courts, so it’s a safe bet that courts will also require employers to allow transgender employees to use the restroom that corresponds to the employee’s gender identity.  In Hawaii, there is no law that directly addresses this question.  However, based on a lawsuit that was filed against the state a couple of years ago, Hawaii employers are advised to allow transgender employees to use the bathroom of their corresponding gender identity.

The EEOC’s fact sheet is in line with a fact sheet issued by the DOL’s Occupational Safety and Health Administration (“OSHA”) in 2015.

 

 

On Tuesday, May 17, 2016, news broke that the U.S. Department of Labor (“DOL”) will be publicly issuing their final rules regarding overtime exemptions under the Fair Labor Standards Act on Wednesday, May 18, 2016.  The final rule will raise the salary threshold exemption from $23,660 to $47,476, which is more than double the current amount.  While the salary threshold is not quite the $50,440 that was initially proposed by the DOL, it is still certainly a very high number that will negatively impact many small businesses, non-profit organizations, and other companies that simply cannot afford to raise salaries to $47k for all of their exempt employees.

The final rule will also trigger automatic increases to the salary threshold every three years, beginning on January 1, 2020.  To put it lightly, this escalator clause could prove to be a real back breaker for many companies.  Under the DOL’s estimation, this would increase the salary threshold to $51,168 in 2020.  It is also not clear whether the DOL has fully thought about the implications of this escalator clause, but that is a different discussion for another day (see below).

In addition, the final rule also raises the salary threshold that is used for the “highly compensated employees” exemption from $100,000 to $134,004.   With the escalator clause, this number is estimated by the DOL to be $147,524 in 2020.

Finally, the new rule also provides that non-discretionary bonuses and incentive payments (including commissions) can be used to satisfy up to 10% of the new standard salary level, as long as they are paid on a quarterly basis (or sooner).

The new rules will take effect on December 1, 2016.  This gives employers just under 200 days to start preparing for these major rule changes.

Certainly, this is BIG NEWS!  And bad news, too.

In order to assist employers with understanding and preparing for the DOL’s final overtime rule, the Hawaii Employers Council (“HEC”) will be conducting a seminar/webinar next Wednesday from 8:30 to 10:30 am.  This program will contain three main components:  (1) a discussion of the current and new rule; (2) actions plans employers can implement in response to the new rule; and (3) how to communicate with employees about changes that are (or will be) implemented by the employer.  I will be presenting the first part of the program.  

Here are some links for further information:

Oh, one last thing – I should also note that the final rules do not make any changes to the duties tests for the Executive, Administrative and Professional exemptions.  Employers can probably view that as a good thing, although I do not think such changes were likely because the DOL did not include them in its proposed rule.  Therefore, implementing such changes would have probably been in violation of the Administrative Procedures Act anyway.

 

For the first time ever, the Equal Employment Opportunity Commission (“EEOC”) has issued a memorandum on “how Respondents can draft effective position statements.”

guidance

Oftentimes, employers who receive a charge of discrimination from the EEOC will hire an attorney to draft a position statement in response to the charge.  The attorney will normally work with the employer to gather a set of facts to be used in response to the allegations contained in the charge of discrimination, and then prepare a position statement that summarizes those facts (oftentimes refuting the allegations contained in the charge) and discusses those facts in light of the law.  The position statement should be carefully drafted to ensure that all allegations raised in a charge of discrimination are addressed, and that the employer provides a fact-based response instead of one that simply raises conclusive statements such as “we didn’t discriminate.”

Regardless of whether you hire an attorney or prepare the position statement yourself, it is strongly advised to review the EEOC’s memorandum on what constitutes an effective position statement.  The EEOC’s memorandum addresses the following issues:

  • The importance of fact-based position statements
  • Examples of supporting documentary evidence
  • Segregating confidential information
  • Providing a response by the due date
  • Requesting an extension
  • Uploading the Position Statement into the EEOC’s portal

The EEOC’s memorandum can be viewed here:  EEOC on Effective Position Statements

 

The 2016 legislative session has come to a quiet ending.  As part of my duties at the Hawaii Employers Council (“HEC”), I track and report on bills that may be of particular interest to companies doing business in the State of Hawaii.  I also prepare a digest of all the bills I’m tracking and a separate article that highlights a few of the more significant employment-related bills.

For this year’s session, some of the employment-related legislation that Hawaii employers should know about address the following topics:

  • Social Media Privacy
  • Workers’ Compensation Treatment Plans
  • Penalties for TDI and Workers’ Compensation Violations
  • Additional Unemployment Insurance Benefits

The HEC legislative digest provides a brief overview of these bills, as well as all the other bills I have been tracking this legislative session.  The digest can be viewed here:  Legislative Digest After Sine Die.  The highlights article contains a more detailed discussion of employment-related bills that I found to be of particular significance.  The article is available to HEC members only, and can be accessed here:  Highlights of Bills After Sine Die.

All the bills that have been passed by the legislature have been sent to the Governor for his approval or veto.  The deadline for the Governor to give notice of any vetoes is June 27, 2016.  The deadline to make the actual veto is July 12, 2016.

 

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.