Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Post no bills? Employers have to post plenty!

Posted in Affirmative Action
Stephanie Underwood

Stephanie Underwood

This year is ending with quite a few changes in various federal workplace posters. To ensure that employers, especially federal contractors, have kept up with the required changes, here is a summary:

Federal 6-in-1 Poster 

The U.S. Department of Labor made changes to some of the posters included in what is commonly called the Federal 6-in-1 Poster. The changes relate to the posting requirements under the Fair Labor Standards Act, the Employee Polygraph Protection Act, and the Family and Medical Leave Act.

The FLSA posting was revised to include the rights of nursing mothers, the wage credit for tipped employees, and the classification of independent contractors.  The polygraph poster contains revised information regarding penalties. The FMLA poster more fully integrates the military family leave provisions than the previous version.

The 2013 version of the FMLA poster is still acceptable to post, but the remainder of the posters should have been updated by August 1, 2016. If your Federal 6-in-1 Poster has not been updated since these changes, you should replace the version you are using with the new version.

Worker Rights Under Executive Order 13706 (Paid Sick Leave)

Executive Order 13706 requires certain employers that contract with the Federal Government to provide up to 7 days of paid sick leave annually, which includes caring for family, and absences resulting from domestic violence, sexual assault and stalking.

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E.O. 13706 provides sick leave to any person engaged in performing work on or in connection with (1) procurement contracts for construction covered by the Davis-Bacon Act; (2) service contracts covered by the McNamara-O’Hara Service Contract Act; (3) concessions contracts, including any excluded from the SCA; and (4) contracts in connection with federal property or lands and related to offering services for Federal employees, their dependents, or the general public. Any subcontract of a covered contract that falls into one of these four categories is subject to the paid sick leave requirements as well.

Covered employees accrue 1 hour of paid sick leave for every 30 hours worked on or in connection with a covered contract. E.O. 13706 applies to new federal contracts and replacements for expiring contracts with the federal government that result from solicitations issued on or after January 1, 2017. Once covered, contractors must post the DOL notice in their workplaces or electronically where employees typically receive notices about terms and conditions of employment.

Worker Rights Under Executive Order 13658 (Minimum Wage)

Beginning January 1, 2017, certain federal contractors must pay covered workers at least $10.20 per hour.  Additionally, covered tipped employees performing work on or in connection with covered contracts must be paid a cash wage of at least $6.80 per hour.  The DOL does not yet have the 2017 poster available on its website, but it will presumably be similar to the current version:

Screen Shot 2016-12-06 at 8.22.58 PM

Pay Transparency Non-discrimination

The OFCCP’s Pay Transparency regulations went into effect in January 2016, so many contractors are now required to post a non-discrimination notice electronically or in their workplaces in conspicuous locations. This mandatory language must also be included in employee handbooks and manuals.

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Employers should ensure that they have all workplace posters applicable to them posted where accessible by employees. The DOL’s website provides a link to various required posters by subject matter.

BREAKING: FMCSA announces national drug and alcohol testing clearinghouse for commercial truck, bus drivers

Posted in Drug Testing, Transportation Industry
Tommy-Eden.jpeg

Tommy Eden

As we expected here and here, the day has finally come. The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration announced Friday that it had issued a Final Rule establishing a drug and alcohol clearinghouse for holders of commercial drivers’ licenses. The effective date of the Final Rule is January 6, 2017, but transportation employers will not have to start complying with the rule until January 2020.

Here’s the word from the FMSCA’s website:

The clearinghouse database will serve as a central repository containing records of violations of FMCSA’s drug and alcohol testing program by commercial driver’s license (CDL) holders. . . . 

Once the clearinghouse is established, motor carrier employers will be required to query the system for information concerning current or prospective employees who have unresolved violations of the federal drug and alcohol testing regulations that prohibit them from operating a commercial motor vehicle (CMV). It also requires employers and medical review officers to report drug and alcohol testing program violations.

I will be hosting a webinar on this topic in early January.

What should employers do about overtime now? Ask the wage-hour lawyers.

Posted in Wage-Hour

As most readers know, the U.S. Department of Labor’s overtime rule, which was set to take effect yesterday, was preliminarily enjoined (temporarily blocked) on November 22 by U.S. District Court Judge Amos Mazzant III. The injunction in Nevada v. Perez applies nationwide, but the court’s decision is not final, and the DOL appealed yesterday. An article in the Washington Post said that workers are “in limbo,” but I think it would be more accurate to say that all of us – employers, employees, and even Human Resources professionals and attorneys — are in limbo.

Jim Coleman

Jim Coleman

Ellen Kearns

Ellen Kearns

What now? Can employers relax? What happens to employees who were told they’d be reclassified and eligible for overtime? And what can we expect the incoming Trump Administration to do?

I am grateful to Jim Coleman and Ellen Kearns, co-chairs of Constangy’s Wage and Hour Practice Group, for having agreed to share with us their wisdom about this perplexing turn of events.

ROBIN – Jim and Ellen, does Judge Mazzant’s order mean that employers can relax? What are the possible legal scenarios that could follow his decision?

JIM – Relax, yes, but only a little. The odds are probably good, but not certain, that the injunction will remain in force through January 20 (Inauguration Day), at which time new decision-makers will be running the DOL. Yesterday, the same day that the regulations were to have taken effect, the DOL filed its appeal to the the U.S. Court of Appeals for the Fifth Circuit. If the Fifth Circuit reverses before President-Elect Trump takes office, the new regulations would become effective before the new administration has time to pursue a more permanent fix through either executive rulemaking or legislation from Congress.

ELLEN – I agree with Jim that “relax” is too strong a word to describe what an employer should do in the wake of Judge Mazzant’s decision.

The DOL’s appeal of the preliminary injunction order is “interlocutory,” meaning that the DOL is appealing a decision that is not final. An appeals court will reverse a preliminary injunction only if it finds that the lower court abused its discretion. The Fifth Circuit would have to find that Judge Mazzant’s decision was based on a clearly erroneous finding of material fact, or that he misapplied the law or the four-factor standard for granting a preliminary injunction.

In sum, the Fifth Circuit could overturn the injunction and thereby reinstate the regulations, modify the injunction, or leave the injunction in place while the Nevada case is pending. Then the case would go back to Judge Mazzant to make a final decision, which could also be appealed.

Cat Winking.flickrCC.Lamia

Relax, but keep one eye open.

To complicate matters more, the plaintiffs in the companion Plano Chamber of Commerce v. Perez case (the “business plaintiffs”) have filed a motion for expedited summary judgment. Judge Mazzant will be hearing that motion soon, and he could grant or deny that motion. If he denies it, the case would go to trial. If he grants summary judgment to the business plaintiffs, then his summary judgment decision can be appealed to the Fifth Circuit, as it is a final judgment.

It’s worth noting that some legal commenters have found what they call a “fatal flaw” in Judge Mazzant’s preliminary injunction decision in the Nevada case, which may help the DOL in its appeal. Judge Mazzant said that the doubling of the salary threshold was probably illegal because it effectively eliminated the duties test. In fact, his order strongly suggests that the DOL does not have the authority to impose a salary threshold at all: “The plain meanings of the terms in Section 213(a)(1), as well as Supreme Court precedent, affirms the Court’s conclusion that Congress intended the [Executive-Administrative-Professional] exemption to depend on an employee’s duties rather than an employee’s salary.” Elsewhere, in a footnote, the judge said that he wasn’t challenging the DOL’s authority, but it sure sounded like he was, and other commentators have agreed.

ROBIN – So, a lot can happen between now and Inauguration Day. If an employer chose not to make any changes because of the injunction, and then Judge Mazzant’s preliminary injunction order is reversed on appeal, would the employer face any type of legal exposure under the Fair Labor Standards Act?

JIM – Yes, that is a risk. If this were to happen, the courts could take the position in subsequent FLSA litigation that the injunction was invalid from the beginning, and therefore that the new regulations did become effective December 1. Something very much like this happened with the in-home caregiver exemption regulations that were to take effect on January 1, 2015. A federal court vacated the regulations days before they were to become effective, and eight months later, the U.S. Court of Appeals for the District of Columbia Circuit reversed. All told, there were about 10 months when the regulations did not appear to be in effect.

But since then, at least five private FLSA collective action lawsuits have been filed against employers who did not pay overtime during that 10-month period. In two cases, the courts ruled that the employer did not have to pay overtime while the regulations were vacated. But in three cases, the courts ruled that the appeals decision retroactively nullified the district court’s decision, meaning that the regulations had effectively been “in place all along.” One of the three employer-adverse rulings is now being appealed to the U.S. Court of Appeals for the Second Circuit, so we may see an appellate court analysis of the issue next year.

Pigs Flying.flickrCC.AustenSquarepants

Theoretically, at least, anything could happen.

ELLEN – Just to give you the flavor of the opposing views on this issue, we have Bangoy v. Total Homecare Solutions, LLC, in which a federal judge in Ohio said, “In this court’s view, the third party employer was entitled to rely on the district court’s decision. . . . [P]ermitting Plaintiffs to recover for a violation of the rule while [it was vacated] would give the rule an impermissible retroactive effect.”

By contrast, in Kinkead v. Humana, Inc. – the case that Jim referred to that is on appeal to the Second Circuit – a federal judge in Connecticut said, “Long-established law gives retroactive effect to federal judicial decisions. . . . [I]nsofar as defendants seek dismissal on a theory that would negate the agency’s choice of an effective date and preclude retroactive application of the D.C. Circuit’s decision, I will deny Defendants’ motion to dismiss this case.”

The current situation is different from the home caregiver situation in at least two respects. First, from a legal standpoint, Judge Mazzant issued a preliminary injunction, which is not a final ruling on the merits. Even if his decision is reversed on appeal, the reversal might be based on the ground that preliminary relief wasn’t warranted. That would not be a ruling on the legality of the underlying regulations, which means that the rule on giving retroactive effect to federal judicial decisions might not come into play. Second, the political landscape is of course entirely different now, as compared with 2015. We don’t know what the incoming administration will do with these new regulations.

Donald Trump caricature.flickrCC.DonkeyHotey

“I’m gonna make just a few little changes when I get in . . .”

ROBIN – Speaking of Donald Trump, I realize you don’t have a crystal ball, but what do you expect his administration to do?

JIM – This is very hard to predict – almost as hard to predict as the outcome of the election! The odds are good that any Secretary of Labor chosen by President-Elect Trump will be more employer-friendly than the current Secretary of Labor. Despite the appeal by the Obama DOL, it is not likely that the Fifth Circuit will have time to address it substantively before January 20, and after that date the new leadership of the DOL could simply withdraw the appeal and let the injunction stand. This would give a Trump Administration time to either open a new administrative rulemaking proceeding, or work with Congress to enact legislation amending the FLSA to either eliminate the DOL’s regulatory authority on this subject, or to define the exemption criteria by statute. Either way, a more permanent solution would be forthcoming under a Trump Administration.

ELLEN – I agree that the appeal of Judge Mazzant’s decision will probably be withdrawn after President-Elect Trump takes office. Assuming the injunction stays in place, I would expect Mr. Trump to ask his DOL to go back to the drawing board and issue new regulations that will modify the salary threshold by lowering it (as compared with the Obama threshold that has been enjoined) and phasing in any increases over a two-, three-, or four-year period. I think he may also make the new levels inapplicable to non-profit, higher education, and public employers. And, as Jim has already noted, Mr. Trump might also work with Congress to amend the FLSA to eliminate the salary thresholds, or at least to exempt certain sectors of the economy.

Limbo.flickrCC.Jeffrey

FLSA overtime limbo.

ROBIN-Which brings us to the practical “limbo” issue that everyone is wondering about. The injunction was issued on November 22, and by that time some employers had already put their changes into place. Others had announced the changes to employees. Others may not have taken any action at all. Do you have a feel for what employers in each of these categories are doing now?

 JIM – In my experience, most employers who had already executed on their planned changes are sticking with those changes and waiting to see what happens next. Many expressed discomfort with the idea of reversing their changes based on a preliminary injunction, and concern about disruptions in the workplace and employee morale.

With employers who were ready to execute on their planned changes and had communicated the coming changes to employees but hadn’t put them into effect yet, I know many who have decided to put the changes on hold until there is greater certainty about whether, and when, the new regulations will ever become effective.

And for those employers who did nothing (not that we condone that!), I would expect them to simply continue waiting and seeing what the future brings.

ELLEN – I agree with all that Jim has said.

Image Credits: From flickr, Creative Commons license. Cat by Lamia; flying pigs and blueberries by Austen Squarepants; Donald Trump caricature by Donkey Hotey; limbo by Jeffrey.

Weekly catch-up

Posted in ConstangyTV, Drug Testing, FOCUS, Immigration, Safety

The November edition of ConstangyTV’s Close-Up on Workplace Law tackles workplace holiday parties, the legal risks, and how to minimize those risks. Hot Dog Man.flickrCC.JeleneMorrisHost Leigh Tyson interviews Gary Wheeler of our Jacksonville Office about what employers should and shouldn’t do. If you haven’t already done so, please subscribe to our YouTube channel.

The new, improved I-9 form. Elizabeth Joiner of our Immigration group has what you need to know about the new, sort-of-smart electronic I-9 form. Employers will be required to use the new form effective January 22.

FLASH! Federal judge in Texas does not enjoin a DOL rule. The way things have gone lately, the denial of a preliminary injunction against a rule issued by the U.S. Department of Labor may be more newsworthy than the granting of one. But Judge Sam Lindsay denied a request by a number of business groups to prevent the post-accident drug testing and retaliation provisions of the OSHA “Reasonable Reporting Procedures” rule from taking effect, which means the rule took effect yesterday. David Smith of our Workplace Safety group has the story.

Sincere thanks to my colleague and friend Heather Owen, proprietor of the FOCUS women’s leadership blog, for her very kind words about this blog, me, and our inclusion on the ABA Blawg 100 for 2016. If you have not subscribed to FOCUS, you will want to do it right this minute.

Image Credit: From flickr, Creative Commons license, by Jelene Morris.

Thank you ever so much! We made the ABA Blawg 100 again!

Posted in ABA Blawg 100

Thank you all very much for helping elect us to the American Bar Association Blawg 100 for 2016. We were one of only five employment law blogs to make the list, out of approximately 4,000 blogs in all legal categories. Your support and your readership are greatly appreciated!HonoreeBadge

We had a lot of guest bloggers this year, and they also deserve credit for our success. So thank you very much (in alphabetical order) to Ken Carlson, Cara Crotty, Louise Davies (no web page), Tommy Eden, Billy Hammel, Steve Katz, Ellen Kearns, Damon Kitchen, Angelique Lyons, Marcia McShane, Alyssa Peters, Ray Poole, Angela Rapko, Kristine Sims, Stephanie Underwood, Heidi Wilbur, and Jon Yarbrough. I hope you will all be back next year!

I’d also like to offer my congratulations to fellow employment law bloggers and “cyber friends” Donna Ballman (“Screw You Guys, I’m Going Home”), Bill Goren (“Understanding the Americans with Disabilities Act”), Eric Meyer (“The Employer Handbook”) and Jeff Nowak (“FMLA Insights”). Jeff has won so many times that he made it to the Blawg 100 Hall of Fame this year, joining two other outstanding employment law bloggers, Dan Schwartz (“Connecticut Employment Law Blog”) and Jon Hyman (“Ohio Employer’s Law Blog”). If you’re not already visiting these blogs, then please do. (But keep coming here, too!)

Thank you again!

2016 workplace holiday party central!

Posted in ConstangyTV

Ho, ho, ho! We have all of your 2016 workplace holiday party needs right here!Santa.flickrCC.Dennis Hill

(Well, anyway, everything you need to know to keep your risk of being sued to a minimum.)

First, we have a new episode of ConstangyTV’s Close-Up on Workplace Law. Our latest show is on workplace holiday parties, in which host Leigh Tyson interviews Gary Wheeler of our Jacksonville Office about the legal risks associated with the parties and how employers can stay out of trouble.

Second, we have a webinar on holiday parties that I recently conducted with Laura Kerekes (scroll down) and the excellent people at ThinkHR on the same subject. This webinar is an hour and three minutes long, but you won’t regret a single moment.

Third, here is my 2015 Workplace Holiday Party Quiz. Maybe you missed it last year. Even if you didn’t, you’ve probably forgotten what I said, so you should read it again.

Fourth, here are my 2014 Planning Tips for a workplace holiday party. Not much has changed in the past two years, so these tips are as enduring as Aunt Edna’s bourbon-soaked fruitcake.

Fruitcake.flickrCC.RachelTayse

“I’ll pass, thanks.”

Finally, here is my 2013 (sarcastic) advice on how to have a FABULOUS workplace holiday party.

Party on! Happy holidays!

Image Credit: Fruitcake from flickr, Creative Commons license, by Rachel Tayse.

BREAKING: OSHA reasonable reporting procedure rule is NOT enjoined!

Posted in Drug Testing, Safety

Which means the rule will be enforced starting day after tomorrow, December 1.

Judge Sam A. Lindsay of the Northern District of Texas found in TEXO ABC/AGC, Inc. v. Perez that the plaintiffs challenging the rule had failed to show that they would suffer irreparable harm if the rule was not preliminarilyStove fire.flickrCC.StateFarmIns enjoined. He also found that the plaintiffs had failed to show that the balance of equities and public interest weighed in favor of the plaintiffs.

Judge Lindsay concluded, “That the court has denied injunctive relief requested by Plaintiffs is not a comment or indication as to whether Defendants will ultimately prevail on the merits. This determination is left for another day.”

Thus, although this is a “battle” victory for the U.S. Department of Labor, it’s possible that the plaintiffs will still win the “war.”

We’ll be back soon with more on yesterday’s decision. Mega hat tip to Tommy Eden, who alerted us.

And here are links to our prior coverage of the reasonable reporting procedure rule and this lawsuit:

OSHA rule requires public reporting of injuries by employers, bans “unreasonable” requirements for employees to report

Don’t panic! Employers should be able to continue most post-accident drug tests under OSHA’s new “reasonable reporting procedure” rule

Employer groups sue to block OSHA’s drug testing provisions

OSHA provides guidance on its new “reasonable reporting procedure” rule

OSHA DELAYS enforcement date for new anti-retaliation rule

Enforcement date of OSHA rule delayed again — until December 1

OSHA issues guidance on how it will enforce new anti-retaliation regulation

Image Credit: From flickr, Creative Commons license, by State Farm Insurance.

Court blocks DOL overtime rule: The fuller story

Posted in Wage-Hour

NOTE FROM ROBIN: As I posted last night, the U.S. Department of Labor Overtime Rule, which would have taken effect a week from tomorrow, has been preliminarily enjoined. I am re-posting here a client bulletin by Jim Coleman, co-chair of our Wage and Hour Compliance and Litigation Practice Group, and me. This went out to our clients this morning.

Jim Coleman

Jim Coleman

The new regulations that would have more than doubled the salary threshold for Administrative, Executive, and Professional exemptions from the minimum wage and overtime requirements of the Fair Labor Standards Act – due to take effect on Thursday, December 1 – have been preliminarily enjoined nationwide by a federal court in Texas.
This means that the regulations will not take effect on December 1, although it is possible that they could be revived at some later date.

Ellen Kearns has a comprehensive summary of the Rule here. Some months after the regulations were issued in May 2016, two lawsuits were filed challenging the validity of the new regulations: One, Nevada v. U.S. Department of Labor, by a group of 21 states, and the other, Chamber of Commerce of Plano v. Perez, by the U.S. Chamber of Commerce, local chambers, and a number of other business groups. Both cases were pending in federal court in Sherman, Texas.

Ellen Kearns

Ellen Kearns

The “state plaintiffs” filed a motion for the court to preliminarily enjoin (block) the regulations from taking effect. The “business plaintiffs” filed an emergency motion for summary judgment.

Judge Amos Mazzant heard arguments in the consolidated cases on November 16 and said he would try to have a decision issued yesterday.

And he certainly did.

The state plaintiffs had argued that the Tenth Amendment to the U.S. Constitution deprived the U.S. Department of Labor of the authority to impose these regulations on states. Judge Mazzant rejected that argument, and found that the DOL did have such authority.

However, Judge Mazzant found that the plaintiffs were likely to succeed in their argument that the DOL lacked authority under 29 U.S.C. Section 213(a)(1) to use a salary threshold to determine whether an employee qualified for the so-called “EAP” exemptions. Rather, he ruled, the DOL had authority only to adjust the “duties” components of the exemptions as they might evolve over time. As most employers know by now, the regulations made no changes to the existing duties tests but only raised the salary and compensation thresholds. Indeed, the DOL said that, with limited exceptions, an employee would not qualify for exemption if he or she was not paid the new minimum salary, regardless of his or her job duties. According to Judge Mazzant, this creates “essentially a de facto salary-only test,” which conflicts with Congressional intent: “If Congress intended the salary requirement to supplant the duties test, then Congress, and not the [DOL], should make that change.”

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Employment and labor law developments (and a few other things) I’m thankful for

Posted in Affirmative Action, Discrimination, Elections, FOCUS, Gender Identity Discrimination, Labor Relations, Public Sector Employment, Settlements, Sexual Orientation

This has been a weird year for me. (And, no, I’m not even thinking about the election!) But ITurkeyDrawing.flickrCC.LovelornPoets have much to be thankful for, and I hope you do, too.

BREAKING THING TO BE THANKFUL FOR: Yesterday evening, the U.S. Department of Labor’s new rule governing white-collar exemptions under the Fair Labor Standards Act was struck down by a federal judge in Texas. I’ll have more on the decision itself later today.

No. 1. A possibly kinder, gentler EEOC. As I reported last week, the Equal Employment Opportunity Commission released charge-filing/resolution statistics for Fiscal Year 2016, which ended September 30. The statistics (which are incomplete) indicate more charges filed, but less money paid by employers in mediation, settlement, or conciliation, less money recovered through lawsuits, and fewer lawsuits filed, compared with FY 2015. Nice!

No. 2. The ignominious defeat of the new Persuader Rule. In addition to being burdensome for employers, the new rule issued by the U.S. Department of Labor would have seriously infringed on the attorney-client relationship. Last week, a federal judge in Texas issued a permanent, nationwide injunction, which prevents the rule from ever taking effect (subject to the DOL’s right of appeal).

No. 3. (*Not a political endorsement*), but if President-Elect Trump gives some regulatory relief to employers, I will be thankful. (Although federal judges in the State of Texas are not leaving him much to do!) Continue Reading

Deadline to comment on pay transparency language is next Tuesday

Posted in Affirmative Action
Heidi Wilbur

Heidi Wilbur

Last chance! The deadline to comment on the Interim Rule that adds pay transparency language to government contracts is this coming Tuesday, November 29.

On September 30, 2016, the U.S. Department of Defense, General Services Administration, and National Aeronautics and Space Administration issued an interim rule  called “Non-Retaliation for Disclosure of Compensation Information,” which amends the Federal Acquisition Regulations to implement Executive Order 13665.

As we’ve discussed in previous posts, the EO prohibits federal contractors from discriminating against employees and applicants who ask about or discuss compensation. The Office of Federal Contract Compliance Program’s Final Rule implementing the Order (known as the “Pay Transparency Rule”) became effective January 11, 2016. In addition to providing protection to employees who ask about or discuss compensation, the Pay Transparency Rule also requires federal contractors to notify employees and applicants of their rights to discuss compensation by requiring mandatory language in employee handbooks and postings.

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