DOL’s Increased Salary Test: What Employers Need to Know

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For months, employers have been anxiously awaiting the Department of Labor’s (DOL’s) final rule on exemptions from overtime under the Fair Labor Standards Act (FLSA) and wondering whether the DOL would pass the rule as previously proposed or make modifications to its June 2015 proposed rule. Now the wait is finally over and, as anticipated, the DOL’s final rule (which will be published in the Federal Register today) contains some significant changes for employers with salaried workers. Notably, this rule is only one of many new regulations that the President’s Administration pushed through by May 23, 2016 in order to ensure they take effect before President Obama’s term ends in January 2017. Below are several highlights of the final rule change, along with strategies employers should consider before the rule changes take effect. Continue reading this entry

NYC Lays Down Law (And The Wave Of The Future?) On Gender Identity Discrimination

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We have seen a veritable maelstrom of controversy surrounding transgender rights and other gender identity issues in the past year, and especially in the last several weeks, with everyone weighing in on the subject from Donald Trump to President Obama. While in some ways it is difficult to predict precisely how federal, state and local laws will all shake out on the issue – particularly in the context of employer/employee relations – the New York City Commission on Human Rights has taken this potential problem of uncertainty head-on in recently published enforcement guidance on gender identity discrimination that is so comprehensive in scope that it seems destined to serve as a model for other jurisdictions. Therefore, all employers, whether or not they are in New York City, can benefit from reviewing the guidance – including the eight categories of violations identified by the Commission – to better understand how to safeguard against gender-identity based discrimination Continue reading this entry

New EEOC Rules for Wellness Programs: A 30 Percent Incentive = Voluntary

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For years, employers have been allowed to offer voluntary wellness programs to employees under the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act (ADA). Both laws generally prohibit health-related questions and medical examinations, such as biometric screenings, but have an exception if done in conjunction with a voluntary wellness program. However, in recent years several employers offering wellness programs have raised the ire of the Equal Employment Opportunity Commission (EEOC) by offering wellness programs containing financial incentives, which the EEOC claimed eliminated the voluntary character of the programs. Ironically when the EEOC began challenging these employer programs, they did so despite having never committed to what it considered voluntary, let alone issued any formal guidance on the matter. Finally, now the EEOC has done just that. Continue reading this entry

Changing Past Practices – You Might Already Have the Right to do What You Want

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Employers frequently find themselves in a situation where they have the right to do something under their labor agreements, but they have not been exercising the right. For example, the labor agreement might provide:

  • “There shall be no pyramiding of overtime,” but under the employer’s pay practices, the employer has in fact been pyramiding (counting the same hours twice for purposes of overtime)
  • “Double time shall be paid for the seventh consecutive day worked,” but under the employer’s pay practices, it has been automatically paying double time for all work on Sunday, not just on Sunday if it is the seventh consecutive day worked
  • “The employer has the right to change shift start times,” but through past practice, the employer has never exercised that right
  • “The employer can require employees to work overtime,” but as a matter of course, the employer has not been mandating overtime
  • “Employees will be discharged for sleeping on the job,” but the employer has traditionally only suspended employees for that offense

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Joint Employer Standard Causing Jurisdictional Headaches

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Ever since the National Labor Relations Board (NLRB) blew open the joint employer concept last year in Browning-Ferris, it has been a rocky road for all involved to understand the implications of this new standard. The latest bump involves a question of jurisdiction: What happens when one of the joint employers is subject to the National Labor Relations Act (NLRA), but the other joint employer entity falls outside the jurisdiction of the NLRA? Continue reading this entry