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Dykema Labor & Employment Law Blog

Dykema Labor & Employment Law Blog

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New FLSA Regulations Enjoined!

We have posted several blog entries regarding the FLSA regulations announced in May that drastically increased the minimum salary threshold for most executive, administrative and professional employees from $455 per week (or $23,660 per year) to $913 per week (or $47,476 per year). Late Tuesday afternoon, the United States District Court for the Eastern District of Texas granted a motion brought on behalf of 21 states and supported by business groups led by the United States Chamber of Commerce to preliminarily enjoin the new overtime exemption regulations set to go into effect on December 1, 2016.  

The Elements for Preliminary Relief Were Satisfied by the States

At the outset, the court had to determine if the states will “likely succeed on the merits” as the case is further litigated, and if a permanent injunction is on the horizon. The states’ case was premised on both constitutional and statutory grounds. The court concluded that while the states’ constitutional claims were unlikely to succeed, their statutory arguments appeared strong and likely to succeed.  Read More ›

One Down, One to Go: Courts Weigh In on Enjoining DOL Persuader and FLSA Exemption Rules

Over the course of the last year, the U.S. Department of Labor promulgated two controversial regulations triggering court challenges. One rule–known as the “Persuader Rule”–was set to require employer consultants and lawyers to file disclosure reports of any union avoidance activities they engage in, even if that activity was purely advisory in nature and did not involve direct contact with employees. The other rule regards the changes to the overtime exemption regulations, which are set to increase the salary threshold for exempt status from $455 per week to $913 per week, and then to automatically adjust that threshold every three years. Read More ›

Follow Up: EEOC Releases Revised EEO-1 Form Which Now Tracks Employee Pay Data

Earlier this year, this blog discussed the EEOC’s proposed rule that would require employers to report additional pay data as part of their annual “Employer Information Report EEO-1” (EEO-1) form submissions. The EEOC and Office of Federal Contract Compliance Programs (OFCCP) use the EEO-1 form to collect data from private employers, federal contractors and subcontractors about their employees. It is an established report that all employers with 100 or more employees are required to submit to the EEOC on an annual basis. On September 29, 2016, the EEOC announced the approval of a revised EEO-1 form. Beginning with the 2017 report (which must be filed in March 2018), the EEOC will collect additional summary pay data that it had not previously collected from employers with 100 or more employees. Read More ›

An Employer’s Pocket Survival Guide to the New Overtime Regulations

The overtime regulations are almost here and will affect more than 4 million employees across the country. Although a pending lawsuit seeks to halt the regulations, employers should prepare for the probability that they will soon be faced with new rules for paying white collar employees. The most significant change made by the overtime regulations will raise the minimum salary level for the white collar—executive, administrative and professional—exemptions under the Fair Labor Standards Act (“FLSA”) from $455 per week to $913 per week. After December 1, 2016, any employee earning below that threshold will no longer fall under the white collar exemptions from overtime pay. Read More ›

States Hopping on the Department of Labor’s Misclassification Bandwagon

On August 31, 2016, North Carolina became the latest state to join the U.S. Department of Labor’s (“DOL”) expansive efforts to reduce the misclassification of employees as independent contractors—making it the 33rd state participating in the DOL’s collaborative effort to reduce what it views as rampant misclassification.  Through its administrator’s interpretation, the DOL has issued guidance in its renewed efforts to combat misclassification. The DOL's initiative is a concerted effort to investigate and pursue companies that misclassify employees as contractors to avoid various tax and/or benefit burdens. The initiatives have resulted in a significant number of companies being investigated by the DOL and the payment of significant back pay amounts to employees. Several states have formally adopted the DOL’s heightened scrutiny in this area and have agreed to work closely with the feds to reduce misclassification, thereby raising the stakes for employers who utilize these arrangements. Read More ›

NLRB Continues to Make Non-Union Employers Nervous

Last month, the National Labor Relations Board issued two more significant decisions reminding employers – unionized and non-unionized alike – that they may indirectly be subject to the National Labor Relations Act in ways previously unrealized. They did so by making it more difficult for employers using contracted staff or buying the assets of unionized employers to avoid either an obligation to bargain with unions representing the staffing company or predecessor’s employees, or even being locked into the terms unions may have had with those employers upon buying the assets of another employer. Read More ›

Making It Count—When Employer Harassment Policies Make the Difference

The old axiom that “the best offense is a good defense” is especially true in the context of sexual harassment lawsuits, where an effective anti-harassment policy and complaint procedures are a potent tool in shielding employers from liability for supervisors’ misdeeds. Indeed, these measures can make the difference between a costly verdict or a victory at summary judgment. A recent Fifth Circuit Court of Appeals case, Pullen v. Caddo Parish School Board, highlights the importance of effectively implementing and communicating an employer’s policies and procedures.

In Caddo Parish School Board, Pullen worked at the Caddo Parish School Board (the “Board”), first in the purchasing department and later in human resources. She claimed that her supervisor in the purchasing department verbally harassed her, touched her in an unwelcome manner, and showed her inappropriate photos. She also alleged that, even after she transferred to another department, her supervisor continued to visit her and made additional inappropriate comments. Pullen never reported her supervisor’s behavior to any other employee, but eventually filed a lawsuit claiming that her supervisor’s actions constituted hostile work environment sexual harassment.  Read More ›

Chicago City Council Passes Mandatory Paid Sick Leave Ordinance – What Employers Need to Know

In a first of its kind for Illinois,on June 22, 2016, the Chicago City Council passed the Paid Sick Leave Ordinance, making Chicago the latest in a wave of mandatory paid sick leave ordinances around the country.

Chicago’s Ordinance, which becomes effective next year on July 1, 2017, would require most Chicago employers to provide the following:

  • Employees accrue paid sick leave (“Paid Leave”) of at least one hour for every 40 hours worked, up to a maximum of 40 hours per 12-month period.
  • Employees can carry over up to half of their accrued Paid Leave, up to a maximum of 20 hours, from one year to the next.
  • For employers that are covered by the Family and Medical Leave Act (“FMLA”), employees may carry over up to 40 hours of unused Paid Leave. An employee who uses the carried over 40-hours of FMLA leave for FMLA covered purposesis entitled to use an additional 20 hours of accrued Paid Leave in the same 12-month period, increasing the employer’s Paid Leave obligation to 60 hours.
  • Covered “family members” includeindividuals related by blood or whose close association with the employee is the equivalent of a family relationship.

Coverage

The ordinance would apply to any individual (including partnership, association, corporation, limited liability company, business trust, or any person or group of persons) that gainfully employs at least one eligible employee and maintains a business facility within the geographic boundaries Chicago. The ordinance exempts employers who provide their employees paid time off in an amount and manner that meets or exceeds the ordinance’s minimum standards and requirements.

The ordinance defines “employee” to cover any individual permitted to work by an employer who works in Chicago for at least 80 hours in any 120-day period. The ordinance excludes a number of workers from coverage, including certain employees employed in agriculture or aquaculture, outside salesmen, members of a religious corporation or organization, and any employee working in the construction industry who is covered by a bona fide collective bargaining agreement. Read More ›

The New Overtime Regulations Are Now Official

There’s no longer a basis to speculate or read or ignore the rumors. The Department of Labor (DOL) has finalized its changes to the regulations governing who may be exempt from being paid overtime. The changes will still be dramatic in terms of the number of employees impacted, but employers’ worst fears as to what they might contain did not quite materialize. Read More ›

New Federal Defense of Trade Secrets Act Requires Employers to Re-Examine Employee Confidentiality Agreements

This week, President Obama signed the Defense of Trade Secrets Act (“DTSA”) into law, providing owners of trade secrets new federal protections against trade secret misappropriation. The new law has several features which will be discussed (and inevitably litigated) over the months and years to come, including a provision allowing courts to issue ex parte seizure orders of property containing misappropriated trade secrets, a definition of trade secrets broader than the definition in the Uniform Trade Secrets Act (UTSA), and a definition of misappropriation narrower than the one in the UTSA. For employers, however, a provision of the act may require that longstanding confidentiality agreements be re-examined. Read More ›