DOJ About-Face: Supporting Class Action Waivers, Parting Ways with the NLRB

Posted in Employment Litigation, Labor Relations

The Department of Justice (DOJ) has just switched sides in a trio of high profile arbitration cases now pending before the Supreme Court, joining with the employers to argue that the National Labor Relations Board’s (NLRB’s) ban on the use of class action waivers in arbitration agreements oversteps its authority and is misguided. Continue Reading

Preparing for the Unknown: Open Enrollment 2017

Posted in Employee Benefits

With Open Enrollment season just around the corner, employers have been hoping for answers regarding the direction of health insurance under the Trump Administration. However, it’s looking like clarity is a long way off. Despite the lack of certainty, there are a handful of important issues employers should keep in mind:

Future of the Affordable Care Act

Although the Trump administration has been vocal regarding its intent to “repeal and replace” the Affordable Care Act (ACA), efforts to do so have been slow going. The House of Representatives narrowly passed the American Health Care Act on May 4, 2017, however, efforts to pass a similar bill in the Senate have hit major roadblocks. Continue Reading

DOL Drops New Salary Regulation

Posted in Employment & Consulting Contracts, Employment Counseling & Workplace Claims Prevention, Wage & Hour

The Department of Labor is abandoning the new salary regulation that set a  $47,476 threshold salary for employees to be exempt from overtime and intends to go back to the drawing board, based on a brief filed by the DOL on June 30, 2017.

The regulation, which more than doubled the current salary threshold, would have made an estimated 4 million more workers eligible for overtime. While a Texas court last November enjoined the new rule from taking effect and the DOL appealed the ruling, many employers began re-assessing their exempt workers’ salaries and making adjustments. The Texas court said that Congress intended the “white collar exemptions” – executive, administrative and professional – to apply to employees doing actual executive, administrative and professional duties, without reference to a minimum salary level.   The court further concluded that the DOL exceeded its delegated authority and ignored Congress’s intent “by raising the minimum salary level such that it supplants the duties test.”

Notably, the DOL did not announce its intent to withdraw the regulation via press release.  Instead, in a brief filed on June 30, 2017 in the pending appeal, the DOL asked the appellate court not to address the validity of the specific salary level set by the 2016 final rule.  The DOL requested that the appellate court address only the threshold legal question of the DOL’s statutory authority to set a salary level, arguing the court should reverse the November 2016 preliminary injunction and affirm the DOL’s ability to include a salary level test for the FLSA white collar overtime exemptions.  In its brief, the DOL stated that it “has decided not to advocate for the specific salary level ($913 per week) set in the final rule at this time and intends to undertake further rulemaking to determine what the salary level should be.”

For now, employers must wait to see whether the court will find that DOL has the authority set a minimum salary threshold and if it does, what that threshold will be.

DOL: “Joint Employer” and “Independent Contractor” Guidance Out and Wage and Hour Opinion Letters In

Posted in Employment & Consulting Contracts, Employment Litigation, Wage & Hour

On the heels of withdrawing published interpretations of the concepts of “joint employer” and “independent contractor,” the Secretary of Labor announced yesterday that it will reinstate the issuance of opinion letters. Opinion letters are official, written opinions by the Wage and Hour Division that explain how a law applies to specific sets of facts. In 2010, the Obama administration discontinued the issuance of opinion letters and replaced them with Administrator Interpretations, which provided only informal guidance. The change back to opinion letters will be welcomed by employers who may rely on an opinion letter to establish a good-faith defense in wage and hour claims. Additionally, the agency created a website where the public can search to see if existing opinion letters already answer their questions, or alternatively, request an opinion letter. Continue Reading

R-E-S-P-E-C-T in Your Workplace

Posted in Employment Discrimination Harassment & Retaliation

Are racial issues, religious differences, and gender norms creating tension in your workplace? Are the caustic exchanges so evident in news coverage today starting to crop up in the office? Are employees complaining of discriminatory treatment on social media? While it may feel like stepping into a hornet’s nest, employers cannot sit silently by and hope for the best. Employers can and should get ahead of these issues now. Continue Reading

Finally in Play: A Refresher on the Fiduciary Rule for Plan Sponsors

Posted in Employee Benefits

On the heels of Labor Secretary Alexander Acosta’s announcement that the Department of Labor’s oft-delayed “Fiduciary Rule” would finally take effect on June 9th, Congressmen introduced new legislation on June 8th to overturn it. The new bill’s sponsors, House Representatives Phil Roe (R-TN) and Peter Roskam (R-IL), and other opponents contend that the Fiduciary Rule is flawed and will make it harder for low- and middle-income families to save for retirement, while proponents argue that it will strengthen retirement planning by requiring financial advisors to act in their clients’ best interests.  Given the back and forth, plan sponsors may still be unsure about how the Fiduciary Rule’s ongoing implementation lines up with existing fiduciary requirements and what steps, if any, they should be taking to prepare. This article will summarize what the Fiduciary Rule is, why it was delayed, and how it affects plan sponsors. Continue Reading

EB-5 Visa Program: All That Glitters Is Not Gold

Posted in Immigration Planning & Compliance

Concerns over the EB-5 “Gold” visa have been revived since Senior White House advisor Jared Kushner’s sister pitched the prospect of EB-5 immigration visas to Chinese investors. While the program may appear an easy path to permanent residency, any business banking on this program should fully understand the risks. Continue Reading

Steps for Solving the Wage Deduction Dilemma

Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention

Figuring out what deductions from an employee’s wages are permitted and prohibited under the law is a quandary. May an employer deduct an employee’s wages for personal charges on the company’s credit card? What about the cost to replace company property the employee lost or damaged? And what if an employee resigns and never returns the company-issued laptop or other tools of the trade used by the employee? Advances or loans to the employee? The scenarios are seemingly endless. However, by taking the following steps, employers may find the answers to their deduction dilemmas. Continue Reading

Bill Permitting “Comp Time” in Lieu of Overtime Heads to Senate

Posted in Wage & Hour

A Republican proposal to allow private employers to offer employees compensatory time off in lieu of paying overtime at timeandahalf their regular rate has been approved by the U.S. House of Representatives and next moves to the Senate for consideration. The “Working Families Flexibility Act of 2017’’ (H.R. 1180) would amend the Fair Labor Standards Act (FLSA) to enable nonunionized private-sector employers to offer non-exempt employees the opportunity to voluntarily agree, in writing, to accrue 1.5 hours of comp time for each overtime hour worked, with a cap of 160 hours. Currently, the FLSA requires that covered private sector employers pay overtime for hours over 40 each week, unless employees are exempt under one of the FLSA’s recognized exemptions. The FLSA already permits public sector employers to offer comp time in lieu of overtime. Continue Reading