Court Ruling Revives Pay Data EEO-1 Reporting Requirements

Posted in Wage & Hour

Employers may need to begin collecting pay and hours data to report on EEO-1 forms, now that a federal district judge revived the controversial requirement put in place during the Obama administration. During that administration, the EEO-1 form was revised to require employers with 100 or more employees to report earnings and hours worked within 12 pay bands, in addition to reporting race, ethnicity, and sex. In August of 2017, the Office of Management and Budget (“OMB”) stayed the requirement, but a lawsuit was brought by The National Women’s Law Center and the Labor Council for Latin American Advancement in the federal district court in Washington D.C. On March 4, 2019, the federal district judge vacated the stay, finding that OMB did not sufficiently justify its rationale for blocking the rule. The judge then went a step further, pointedly stating that “OMB’s deficiencies were substantial, and the court finds it unlikely that the government could justify its decision on remand, despite its assertion that ‘OMB could easily cure the defects in its memorandum by further explanation of its reasoning.’” Continue Reading

New Salary Threshold for Employees Exempt from Overtime

Posted in Wage & Hour

Exempt employees would have to be paid a minimum annual salary of $35,308 in order to be exempt from the overtime and record keeping requirements of the Fair Labor Standards Act, under the Department of Labor’s long-awaited proposed new rule. The proposed new salary threshold represents almost a 50% increase over the current threshold of $23,660 but is substantially less than the 2016 threshold of $47,476 adopted under the Obama administration. A Texas court blocked the Obama era regulation from taking effect in November 2016, and the DOL later abandoned it.

As a result of the new threshold proposed by the Department of Labor on March 7, 2019, nearly 1.1 million employees previously exempt from overtime will likely become entitled to overtime based solely on their salary. The new regulation is now open for a 60-day public comment period, after which the DOL will issue a final rule. The final rule is not expected to go into effect until January of 2020, so employers have some time to prepare and adjust their policies and practices in anticipation of the change. Continue Reading

National Labor Relations Board Continues Trend of Employer-Friendly Actions

Posted in Labor Relations

The National Labor Relations Board’s (NLRB) recent decision significantly revising the independent contractor standard will allow more workers to be so classified and therefore unable to unionize. This decision continues the Board’s growing trend towards employer-friendly positions and scaling back Obama-era developments. In other action this winter, the Board has proposed rulemaking modifying the joint employer test and limited its definition of “protected concerted activity.”  Continue Reading

Don’t Sell Your Company Short: Properly Classify Sales Employees

Posted in Wage & Hour

While certain sales employees are exempt from minimum wage and overtime requirements under federal and state laws, others are not. Getting it wrong can be a costly mistake, so employers are well advised to ensure their salespeople are properly classified.

The federal Fair Labor Standards Act (FLSA) provides that employees engaged in “outside sales” are exempt from overtime, but those engaged in “inside sales” are not – except when they fall under a separate exemption. But what constitutes “outside” vs. “inside” sales? If your employee doesn’t have to come to the office and conducts sales from home, that’s outside sales, right? Actually, wrong. What about an employee who delivers, stocks, solicits sales and obtains orders for baked goods at customer locations? It depends. Continue Reading

Religious Accommodation Requests: What Employers Should Know

Posted in Employment Discrimination Harassment & Retaliation

Employers must walk a tightrope when dealing with an employee or applicant seeking a religious accommodation as demonstrated by two recent court cases with opposite results.

In one case, a federal appellate court decided that a job applicant whose offer was rescinded after she asked for a religious accommodation did not have a retaliation claim because her request did not amount to “opposition” of an unlawful employment practice under Title VII of the Civil Rights Act. In the other, a jury awarded $21 million to a hotel dishwasher who was forced to work Sundays after being accommodated for her religion for years. Continue Reading

Fishing in the Company Pond

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

Valentine’s Day is here, and office romances are either casting in the air, already afloat, or over and, in any event, likely the subject of the latest office gossip. In honor of this holiday, this blog explains why employers should have a policy on romantic workplace relationships and what it should include. Continue Reading

State of the “Unions”: 2018-2019

Posted in Labor Relations

If there were a State of the “Unions” report, it would no doubt highlight unusual protests, increased organizing and widespread strikes in 2018, along with a forecast for a labor board likely to give more latitude to employers in 2019.

Groups of employees protesting against the actions of their employers are not unusual. However, two protests by groups of Washington, DC employees in 2018 were extraordinary. The NLRB Professionals Association, representing career staff NLRB employees, picketed speeches made by the NLRB Chairman and the NLRB General Counsel. According to their leaflets, they criticized the NLRB’s “systematic attacks on the employees . . . and the agency (NLRB) as a whole.” They further expressed concern regarding their upcoming collective bargaining negotiations, which they anticipated would include NLRB management’s demands to reduce compensation, benefits and job protections. The second unusual group of protesting employees was represented by the Office of Professional Employees International Union. They picketed their employer, the AFL-CIO, which found itself in the ironic position of being an employer opposing the concerns by its own employees over matters including job security and increased economic benefits. Continue Reading

The NLRB Rolls Back the Definition of “Protected, Concerted Activity”

Posted in Labor Relations

Workers who complain in a group setting will no longer be presumed to be engaged in “protected concerted activity” under the National Labor Relations Act based on a new decision issued last month. The decision means that fewer employees in the workplace – whether unionized or not – will be covered by the protections of the NLRA. Continue Reading

The Outlook for Non-Compete Agreements in 2019

Posted in Employment & Consulting Contracts, Non-Compete & Trade Secret Litigation

As employers gear up for 2019, they should be mindful significant reforms in the area of non-compete law that took place in 2018. Although non-competes are widely used and enforceable in the majority of states, there is a growing trend toward limiting the use of non-competes in favor of employee mobility. In recent years, several states have proposed, passed, and enacted laws restricting or prohibiting these types of agreements and many courts have been increasingly reluctant to enforce them against employees. In addition, attorneys general across the country have been investigating employers’ use of broad non-competes and pushing employers to limit their use. Continue Reading

Illinois Expands Employee Rights and Imposes New Obligations on Employers

Posted in Employee Benefits, Employee Handbooks & Policies, Medical & Other Leaves

New Illinois Expense Reimbursement Obligations

Joining employers in California and a growing number of other states, Illinois employers must now reimburse their employees for all expenditures or losses incurred within the scope of their employment which were authorized or required by their employer. A failure in compliance could result in severe penalties and the payment of employees’ attorneys’ fees.

Effective January 1, 2019, Illinois employers must reimburse employees for “all necessary expenditures or losses incurred by the employee within the employee’s scope of employment and directly related to services performed for the employer.” “Necessary expenditures” means all reasonable expenditures or losses required of the employee in the discharge of employment duties that inure to the primary benefit of the employer.

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