Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Overtime exemption rule now coming in July 2016?

Posted in Wage-Hour

NOTE FROM ROBIN: Ellen Kearns is head of our Boston Office and co-chair of the firm’s Wage-Hour Practice Group.

The new overtime white-collar exemption rule will be issuedEllen Kearns approximately July 2016, according to the U.S. Department of Labor’s fall 2015 regulatory agenda, which the Office of Management and Budget published just before Thanksgiving.

I had earlier reported that Patricia Smith, Solicitor of Labor, had said at the annual labor and employment meeting of the American Bar Association in October that the rule might not be issued until “late 2016.”

The DOL’s proposed rule, issued on June 30, would raise the salary threshold for exemption from the current $23,660 to $50,440. Although the DOL did not propose changes to the “duties” test, the agency did invite comments on that topic, indicating that its mind was still open.

We will continue to keep you informed of all developments.

Be thankful you’re not an employment law turkey

Posted in Discrimination, Harassment, Pregnancy, Retaliation, Social media, Work-Life Balance

“I can’t think of anything to be thankful about.”

Well, it’s that time of year again – what are you thankful for? Here are some Human Resources and employment law matters for which I am thankful. Please feel free to add your own in the comments.

I’m thankful that I’m not Trey Gowdy. The Republican Congressman from South Carolina and chair of the House Benghazi Committee is not out, but he’s definitely down — for the moment. He’s been sued, along with the Committee, by a former staffer, Air Force Reserve Maj. Bradley Podliska, who claims he was wrongfully discharged because of his military service obligation and because he refused to sufficiently target Hillary Clinton and the State Department. Rep. Gowdy and others on the Committee say that it was actually the opposite – that Maj. Podliska was the one who was obsessed with Mrs. Clinton and that the Committee had to tell him to Continue Reading

A cornucopia of wellness information for employers!

Posted in Affordable Care Act, Americans with Disabilities Act, Genetic Information Non-Discrimination Act, GINA

Earlier this month, I had a relatively short post on the proposed rule on wellness incentives and the Genetic Information Nondiscrimination Act issued by the Equal Employment OpportunityThanksgiving Card Cornucopia.flickrCC.Dave Commission. I also promised a more in-depth piece that would be done in coordination with our benefits attorneys.

Hot off the press and just in time for your long Thanksgiving weekend (yeah, right) is the in-depth piece, on which I collaborated with Debbie Hembree in our Birmingham Office and Brian Magargle in our Columbia Office. The latest bulletin compares and contrasts the EEOC’s GINA proposal with its proposal issued in April regarding wellness programs and the Americans with Disabilities Act.

But wait! There’s more!

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We made the ABA Blawg 100 again. I love you guys!

Posted in Uncategorized

Thanks so much to all of you who elected Employment & Labor Insider to the ABA Blawg 100 for another year. We appreciate you more than you know.image

I would also like to thank my colleagues who contributed posts this year and helped get us where we are today: Cara Crotty, Tommy Eden, Ellen Kearns, Marcia McShane,  David Phippen, and David Smith.

Congratulations also to fellow employment blog winners and friends Donna Ballman, Bill Goren, Jon Hyman (hall of famer!), Eric Meyer, and Jeff Nowak. I am honored to be in your company.

Pretty good year for the EEOC (in pictures)

Posted in Class actions, Discrimination

Bloomberg BNA reports that the Equal Employment Opportunity Commission had a good year in FY 2015, which ended September 30. The agency collected more than $526 million in relief in all types of cases, involving federal as well as private-sector employees. If you have the ambition to read all 106 pages of the agency’s report, please be my guest.

For the rest of us, here are some graphics that will give you the picture in a hurry. All of the monetary figures are in millions. You can click on the images to enlarge.

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BEFORE YOU SUE: 10 questions every employee should ask

Posted in Class actions, Discrimination, Employment at Will, Evidence, Harassment, Retaliation

Last week, we talked about 20 things an employer should ask itself before terminating an employee. In the interests of fairness, here are 10 things that an employee should ask before suing an employer. You should know that I generally don’t believe that lawsuits are the best way to resolve problems. (I realize that there are exceptions.)

BEFORE YOU GO ON, PLEASE READ THIS!!!! I represent employers only, not employees or applicants. This blog never contains legal advice, and especially not today. Reading this blog is no substitute for consulting with your own lawyer who is (1) on your side and (2) understands your situation.

You still care what I think? Great! Here we go.


(Click on picture to enlarge and laugh.)

1) Are you pretty confident that your employer didn’t just treat you inconsiderately, or unfairly, or stupidly, but actually violated the law? It’s not against the law to be an unfair employer, as unfair (heh) as that may seem. Even though I rail on a regular basis against employer favoritism, unfairness, poor communication, and the like, it’s not because these things are illegal — it’s because (a) they encourage employees to file lawsuits, and even a baseless lawsuit is an expense and hassle that most employers don’t need, and (b) being fair and even-handed with employees is the right thing to do. If your employer is a garden-variety jerk, then your best bet may be to find another job.

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OSHA targets more manufacturing industries for amputation inspections

Posted in Safety

NOTE FROM ROBIN: This is the third and final installment of David Smith‘s series on the latest developments from the Occupational Safety and Health Administration. (But we hope he’ll be back soon!)

David Smith

David Smith

In August, OSHA issued a revised version of its 2006 Directive on the Agency’s National Emphasis Program on Amputations that includes an updated list of 80 industries, primarily in manufacturing, that are targeted for inspection based on the high number of amputations that have occurred in those industries since 2006.

The list of industries includes 49 that have been included for the first time. For the most part, these are various manufacturing industries.

The targeted industries are identified by their six-digit North American Industry Classification System codes. Inspections under the Program focus on any machinery or equipment likely to cause amputations, and according to OSHA’s press release on the revision “typically include an evaluation of employee exposures during operations such as: clearing jams; cleaning, oiling or greasing machines or machine pans; and locking out machinery to prevent accidental start-up.”


“Here’s looking at you, kid.”

In Fiscal Year 2013 the amputation program resulted in 1,500 OSHA inspections and approximately 2,800 citations. According to the most recent data from the Bureau of Labor Statistics, manufacturing employers reported that 2,000 workers suffered amputations in FY 2013, and the rate of amputations in the manufacturing sector was more than twice as high (1.7 per 10,000 full-time employees) as that of all private industry (0.7 per 10,000 full-time employees).

Image Credits: Photo of David Smith from Constangy website. Detective from flickr, Creative Commons license, by Paurian.

New Overtime Regs: Will “duties test” be beefed up after all?

Posted in Wage-Hour

NOTE FROM ROBIN: This post is by Ellen Kearns, head of our Boston Office and co-chair of our Wage and Hour Practice Group.

Ellen Kearns

Ellen Kearns

You have probably heard by now that Patricia Smith, Solicitor of Labor, announced at the annual labor and employment conference of the American Bar Association that a final rule on the white-collar exemptions to the overtime regulations will not be issued until late 2016, which was a shock for those who’ve been following this issue and expected a final rule to be imminent.

Ms. Smith said that the main reason for the delay was that 270,000 comments were received in response to the proposed rule, issued on June 30. However, she also said that only approximately 6,000 of those comments were substantive. The rest were presumably “form” comments, or otherwise non-substantive, which means the DOL should not have had to spend much time on those.

Could the real reason for the delay be that the DOL is seriously considering making changes to the duties test? In its Notice of Proposed Rulemaking the DOL asked for “additional information on the duties tests for consideration in the Final Rule.” Specifically,

[s]hould employees be required to spend a minimum amount of time performing work that is their primary duty in order to qualify for the exemption? If so, what should that minimum amount be? Should the Department look to the State of California’s law (requiring that 50 percent of an employee’s time be spent exclusively on work that is the employee’s primary duty) as a model?”

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Jacqueline Berrien, former head of EEOC, dies at 53

Posted in Uncategorized

I just learned today that earlier this week, Jacqueline Berrien, the first Chair of the Equal EmploymentJacqueline_Berrien.JPG Opportunity Commission appointed by President Obama, died of cancer at the age of 53.

Ms. Berrien stepped down from the EEOC in 2014. The agency’s current Chair is Jenny Yang.

I did not always agree with Ms. Berrien, and I’ve given her what I hope she took as some good-natured grief about some of the EEOC’s positions under her leadership. (Assuming she paid any attention to this blog.) Nonetheless, I am very sorry to hear about her death, and we offer our condolences and prayers to her husband, Peter Williams, and to her family and friends.

The Washington Post has a nice article about Ms. Berrien’s career. And here is the press release from the EEOC.

Here is a statement from President Obama.

Many thanks to blogging colleague Jason Shinn who alerted us to this news.

Image Credit: U.S. Equal Employment Opportunity Commission.

BEFORE YOU FIRE: 20 questions every employer should ask

Posted in Americans with Disabilities Act, Discrimination, Employment at Will, Evidence, Family and Medical Leave Act, Harassment, Labor Relations, Protected Concerted Activity, Retaliation, Safety, Settlements, Unemployment, Workers' Compensation

So you think you’re ready to terminate an employee. Are you really?

Magic 8-Ball.flickrCC.WaiferX


Here are 20 questions that every employer should ask itself before going ahead with a termination. If you think I’ve missed anything, please feel free to add your own in the comments.


No. 1. Is the employee covered by a collective bargaining agreement? If so, make sure that whatever you do is consistent with the CBA.

No. 2. Is there a relevant employment policy? Have you read it lately? If the termination will be for attendance, have you reviewed your attendance policy? If for poor performance, have you reviewed your policies dealing with progressive discipline and performance improvement plans? If for misconduct, does your policy say that the alleged misconduct should result in termination?

No. 3. Is there a “past practice” for handling the issue that you are encountering with this employee? Are the options you are considering consistent with that practice?

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