U.S. Department of Labor Headquarters

A federal district court in Texas yesterday struck down (once and for all?) the changes to the overtime rules proposed by the Obama Administration.  Previously, those rules (affecting the white collar exemptions) had been stayed, but the Court’s ruling suggests that there is a fatal flaw to the proposed rules and barred its implementation.

In doing so, the Court said that the salary-level test that was proposed was too high to determine which workers were exempt from overtime compensation.

Of course, there was little chance that these rules were going to get the go-ahead anyways because the Trump administration has shown no desire to support them either politically or in court.  Indeed, in July, the Department of Labor sought public feedback on ways to revise the proposed rule.

The ruling applies to employers nationwide.

While you’ll see a round of headlines today about how this is a big decision, it really should come as no surprise for those of us who have been following this for many months.

So all that guidance last year about how to comply with the new rules? Forget about it for now.

Keep calm and carry on.

 

My colleague, Gabe Jiran, returns the blog today with this quick post updating us on where things stand on the DOL’s proposed changes to the overtime rules (and providing me with an excuse to link to one of the few songs to mention “overtime” in the title.)

As you may recall from some of the prior posts here, employers scrambled to address the Department of Labor’s changes to the salary threshold for white collar exemptions under the Fair Labor Standards Act.  That change would have increased the salary threshold from $23,360 to $47,476 annually in December, 2016.

However, several states challenged this increase, resulting in a federal court in Texas issuing a nationwide injunction stalling the increase.  Of course, many employers had already made changes to address the increase, but the injunction still stands.

Then the election happened. Which changed everything.

Now, the DOL under the new Trump administration has indicated that it will not advocate for a specific salary level under its regulations, but will instead gather information about the appropriate salary levels.

The DOL has thus issued a request for information to get feedback, which can be accessed here.

What does this mean for employers? While this process will most likely result in an increase in the salary levels, it seems that the DOL will do so based on responses to its request for information rather than arbitrarily setting a salary level.

For now, employers should continue to follow the current regulations and the $23,360 salary level while, of course, also following the Connecticut guidelines where applicable too.

But stay tuned here: Developments in this area now seem on the way.

I’ll confess. I’m excited about today’s post.  It’s hard to find something new to do after nearly 10 years of blogging, but I think today’s post is pretty innovative. Unless you read The New York Times “The Conversation” which we’ve tried to copy emulate here.  Except this post (and hopefully others) will be called “The Dialogue”.  Somehow different, right? 

Today’s post tackles some of the legal issues regarding hiring but does so in a back-and-forth format between a management-side attorney (myself) and an employee-side attorney (Nina Pirrotti).  I’d insert a reference to the letters of Alexander Hamilton and Aaron Burr discussing the issues of the day, but then I remembered that ended in a duel, and it’s not exactly what I was foreseeing here.  I think Nina and I can exchange some thoughts without trying to kill one another. 

Anyways, Nina and I have tried something new below.  Nina is a partner at the law firm of Garrison, Levin-Epstein, Fitzgerald and Pirrotti, where she represents employees in all types of matters.  She’s a past-President of the Connecticut Employment Lawyers Association and a frequent presenter on employment law topics.   My thanks to her for being brave enough to try this with me.  Let me know what you think. 

The Dialogue Begins

Dan Schwartz: Welcome to the blog and thanks for engaging in this discussion on employment law. I promise that we here at the blog don’t bite and we pay all of our workers (me) minimum wage. (Ok, that’s a lie. I get nothing for writing the blog, but moving on….)

I know we were planning on talking about some developments in the world of hiring and employment law, but I can’t pass up the opportunity to ask you something about the new Trump Administration.  From the perspective of an attorney who typically represents employees, what are one or two things you’re keeping an eye out for?

nina_t_pirrotti1-150x150Nina Pirrotti: Thank you, Dan, for your warm welcome.  We plaintiffs’ employment lawyers have been feeling mighty chilly since November 8th and have been bracing ourselves ever since for even more frigid temps ahead.  Ironically, I felt the impact of Trump’s election virtually immediately.  On November 9th, I flew to Chicago and spoke at the ABA’s annual Labor & Employment conference.   

The topic of the panel on which I spoke revolved around laws which prohibit employer retaliation against employees for discussing their wages.  The laws are designed to protect female employees who are trying to figure out whether they are being paid less than their male counterparts.  

I was all set to talk about the Paycheck Fairness Act which would have expanded the protection provided by those laws and was expected to be one of the first pieces of legislation signed by Hillary Clinton.  As you can imagine, my plane ride there was consumed with a furious re-write of my outline! The next day I flew to Dallas to participate in the semi-annual Executive Board meeting for the National Employment Lawyers’ Association where we also had to nimbly adjust our focus to reflect the new (surreal) reality.  

I did not thaw out after learning that Trump nominated Andy Puzder, CEO of chain restaurants, including Hardees (which, sadly, is the maker of my all -time favorite breakfast biscuit) to head the Department of Labor.  Puzder’s employee track record, which includes opposing overtime and minimum wage laws and underpaying his own workers is abysmal.   

I can only hope that the rumors that he might back out of consideration prove to be true.  I did feel  a glimmer of hope after I learned this week that Trump has tapped EEOC Commissioner Victoria A. Lipnic as Acting Chair of EEOC.  Lipnic, who was nominated by President Obama, has served as EEOC Commissioner since 2010.

I was also mildly heartened by Trump’s expression of (granted, lukewarm) support in his campaign for pay equity laws and paid FMLA leave, both championed by Hillary Clinton and I can only hope that the person who might most positively influence him in that regard (Ivanka) is able to carry the day.

Unfortunately, the Trump administration does seem poised to reverse or suspend the changes to Fair Labor Standards Act’s overtime rules which went into effect on December 1, 2016.  

Of course, the most important event that we plaintiffs’ employment lawyers are waiting for is the announcement of Trump’s Supreme Court nominee who would replace the very conservative Justice Antonin Scalia.  That person may likely cast the deciding vote on cases that impact the rights of workers in a myriad of ways.  Unfortunately for us, the three oldest justices – Ruth Bader Ginsburg Kennedy  and Breyer  – are liberal or moderate and Trump may have more than one bite at that proverbial apple during his (hopefully only) four-year stint. 

Since your excellent blog has national appeal and one or more of these justices might actually read it, I hereby urge all three of them to eat well, exercise moderately and avoid all high risk activities! Continue Reading The Dialogue: Hiring Employees the Right Way (From Different Sides)

trumpphotoThere haven’t been a lot of stories about what Donald Trump would do as President when it comes to employment law issues. In part, that was due to the polls. But it was also due in part to the lack of policy details that his campaign put out on his website.  Back in September, I lamented the fact that we weren’t getting to hear any debate on those issues.

So, the news this morning that Donald Trump has been elected President is coming with a bit of scrambling.  What does it mean for employers in Connecticut? What’s going to happen with employment laws and enforcement?

The truth is that we really don’t know at this point.  The fact that the House, Senate and President will all be led by Republicans is something that is going to throw the whole system for a loop.

So, here are a few things to keep an eye on over the upcoming months when it comes to employment law issues:

  • As I noted last month, the new overtime regulations are set to be implemented on December 1, 2016.  Will a lame-duck Congress try to block those rules from being implemented? And if they are still implemented, will a Trump adminstration seek to roll those back? That would be a challenge.  Suffice to say for employers, this added uncertainty is a real headache. Until you hear otherwise, employers should continue to implement these changes.
  • One thing that seems clearer: The NLRB’s moves over the last few years will come to a screeching halt once the Board’s makeup is changed. The NLRB, for better or worse, always seems to change with each Presidency.  A Trump Presidency will no doubt bring changes back; this may impact everything from graduate assistants being able to unionize, the quickie election rules. Everything is in play.
  • For those wondering, the Board has two seats open now; along with the existing Republican member, that would give the Trump presidency a pretty quick majority.
  • The EEOC’s strategic plans will now be called into question as well. In recent years, it has taken aggressive litigation approaches on sexual orientation and gender identity issues. Will those tactics be abandoned? Where will the enforcement priorities lead to? Again, don’t expect big changes overnight but over time, this is definitely something to watch.
  • And do not underestimate the impact that a Trump Presidency will have on the federal court system.  He will now be appointing far different judges that we’ve seen over the last eight years — both at the U.S. Supreme Court and at lower court levels.  This will have a long-term effect on employment discrimination cases which are often heard in the federal courts in Connecticut.  As a result, we may continue to see more cases being brought in Connecticut state courts.
  • Let’s not forget that Trump also suggested a six-week paid maternity leave program.  Will we see Congress pick this issue up? Stay tuned too.  

For Connecticut employers, lost in the headlines of a Trump presidency is the fact that Republicans seem to have gained an unprecedented 18-18 split in the State Senate. This could potentially put the brakes on legislation the next two years on issues like non-competes or expanded paid leave.  It’s too early to tell but this is something we’ll be looking into as well.

But for all the uncertainty out there, remember this: Many of our federal laws are unlikely to change.  ADA, FMLA, Title VII are all fairly hearty laws that share widespread support.  The changes that may come are all things around the edges — things like enforcement approaches, guidances, etc.

For employers, it’s best to keep a close eye on the developments for employment law. It’s going to be an interesting couple of years.

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I’ve always tried for this blog to be apolitical.  That doesn’t mean I don’t have political views — I obviously do — but I don’t think that they should play into how we look at certain legal issues.

But we need to talk about the recorded comments from Donald Trump because I think employers need to understand that a workplace that tolerates or condones those types of comments — particularly on a regular basis — is just allow a foundation for a sexual harassment “hostile work environment” lawsuit to be established.

I’m not going to rehash the comments here — the definitive Washington Post story on it does that more than adequately — but I wanted to look at it from the legal context.  Trump’s comments at the debate last night that his comments were mere “locker room talk” isn’t going to cut it.

If you’re wondering, first of all, whether the actual grabbing (as opposed to extremely lewd talk) of female anatomy is sexual harassment, the plain answer is absolutely yes.  It’s also sexual assault, as noted by Anderson Cooper last night.

Notably, a lot of the cases that looked at such “physical touching” incidents were from back in the late 1980s and early-to-mid 1990s, when cases around “hostile work environment” were just coming out.

A case is point is Hall v. Gus Construction from 1998, which had this awful set of facts  “In addition to the verbal abuse, male coworkers subjected [the plaintiffs] to offensive and unwelcomed physical touching. Male crew members would corner the women between two trucks, reach out of the windows and rub their hands down the women’s thighs. They grabbed Ms. Hall’s breasts. One crew member picked up Ms. Hall and held her up to the cab window so other men could touch her.”

And that was just from co-workers.  The supervisors and the company were responsible because they ignored it.

But what about “extremely lewd” talk from supervisors. Can that be enough?

First, it’s important to understand the standard for hostile work environment claims allegedly created by supervisors.  Employers are generally liable for such harassment by supervisors.  What does this mean?

It means that if, over a four-month period, an employee endured almost daily sexual comments and advances from her direct supervisor, including requests for dates and telling her that her “butt looks good” — that may be enough for a hostile work environment claim.

They key to such a claim is whether the actions were severe or pervasive enough to change the conditions of employment and create an abusive environment, judged either by an objective standard (in other words, any reasonable person would find the conduct abusive); and a subjective standard (in other words, the employee in question found the conduct abusive).”

Thus, if a supervisor made isolated comments, it typically isn’t enough (though sometimes it is so bad that it can be).  Rather, what courts are looking for is an environment where these types of comments are more the norm, rather than the exception.

Even so, there may a limited defense. To assert this defense, employers must be able to show that:

  • No tangible adverse employment action was taken against the plaintiff.
  • The employer exercised reasonable care to prevent and promptly correct the harassing behavior.
  • The plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid the harm.

This defense must be proved by the employer.  But again, in cases where the supervisor is the one who is alleged to be the harasser, it’s a tough burden to meet.

Now, this does not mean that the workplace must be free of all lewd talk; that’s not the law.  An isolated comment, even from a CEO, about a person’s appearance is just not enough to be actionable.

But talk about sexual assaulting women is just something more.   And if employers are thinking that this talk goes on all the time in their workplace and it’s no big deal, it’s probably worth a call to your lawyer — because a lawsuit may just be right around the corner.

clinton2013Yesterday, I offered up three questions for moderators to use during the Presidential Debates to question Donald Trump on employment law issues.

Today is Secretary Hillary Clinton’s turn.

  1. Secretary Clinton, the National Labor Relations Board has been quite active in the Obama years; in fact, despite the failure of Congress to pass the Employee Free Choice Act (of which you were an original co-sponsor), many of the ideas from that bill have made its way to regulations from the NLRB including new speedy elections.  You have indicated that you will “fight to strengthen the labor movement” on your website.  What additional changes would you like to see to the nation’s labor laws and why isn’t what we have now enough?
  2. You have indicated that you will also “protect workers from exploitation, including employer misclassification, wage theft, and other forms of exploitation.”  Yet our federal and state laws already prohibit the use of independent contractors as employees and cover the so-called “wage theft” examples. What are you going to do differently, if anything?
  3. In a speech yesterday, you spotlighted a constituency that we haven’t heard much about during this election cycle — those with disabilities.  And you have indicated that you want to fulfill the promise of the Americans with Disabilities Act.   Beyond eliminating the sub-minimum wage that is allowable under current law, would you make any changes to the ADA itself? And in “fulfilling the promise” of the ADA, would you ask the Department of Justice make enforcement a top priority of its strategic plan?

I’m under no illusion: These topics are unlikely to get discussed.  We’ll probably hear more about e-mails and taco trucks.  But perhaps someone somewhere will press the candidates on these important issues.

trumpphotoEach election cycle, I hope that employment law issues will move front and center to the Presidential campaign.

And each cycle, I’m slightly disappointed that such issues only get short shrift.  Sigh.

But as I’ve done before, it would be nice to fantasize about employment law questions that could be posed to the candidates at the upcoming Presidential debates.

So, just in case Lester Holt or the other moderators are brainstorming ideas on the internet, here are three questions I’d like to see asked of Donald J. Trump.

(I’ll have a followup post for Hillary Clinton.)

  1. The U.S. Department of Labor has recent proposed raising the salary threshold requirements for employees to receive overtime. As a result, millions more workers may start to get overtime in December of this year.  But this week, various states and business groups have filed suit to block its implementation. You have previously said that you support a rollback of these new rules.  Why? What specific changes would you propose to the overtime rules if you were going to roll back the current proposal.  Be specific.
  2. You recently said you would advise your daughter Ivanka to “find another career or find another company” if she faced the same harassment as alleged in the sexual harassment lawsuit against former Fox chief Roger Ailes.  Can you explain why you think your daughter should leave a company if faced with harassment? Doesn’t the company bear some responsibility to its employees to stop the harassment and ensure a safe working environment for its employees?
    Followup question: Given the allegations against Roger Ailes and Fox’s payment of $20M to resolve allegations by one of its former employees of sexual harassment, how do you justify consulting with him and what message (if any) do you think it sends to your female workers on your staff?
  3. States like Connecticut have passed a version of Paid Sick Leave. Do you support such a law? As a followup, you recently said you would support a six-week paid maternity leave program.  Why are fathers excluded from your proposal? Do you think fathers should have any paid time off after the birth or adoption of a child?

 

 

IMG_8532 (2)You work for a privately-owned multinational conglomerate with a high-profile CEO who loves Twitter and can’t stop talking.

And that CEO, outside of work, has been critical of lots of people. In doing so, however, the CEO has made particular comments about certain women, comments such as:

And there’s more where that came from too.

That said, some people think the CEO is a feminist.  And within the confines of the company, they would argue, he put women in charge of construction projects before it was “fashionable” to do so. And, some would argue, the organization has more female executives than male executives and a large number of these women are paid more.

The question is: Has the CEO created a hostile work environment for women at the workplace?

Of course, we can’t answer this question in a vacuum, because the CEO described above is Donald Trump.  And this isn’t a pure hypothetical; he has reportedly made all of the above statements either recently on the campaign trail or in other public statements.

Some have already jumped into the fray on this issue both here and here taking issue with his behavior.

But frankly, taking aim at The Donald here on whether or not his conduct creates a hostile work environment at his own workplace is a fruitless exercise. Eventually, some enterprising lawyer will take aim at the organization for his comments and he has plenty of lawyers to defend the organization.

Rather, his comments bring up a point that is relevant to other corporations. I cannot imagine another organization that would relish having such comments made by their CEO in almost any other context.

Yes, the equal opportunity offender — that is, the “horrible boss” who speaks poorly of everyone — can work as a defense in cases. But that’s an argument for a court and won’t prevent the lawsuit from being filed with the accompanying publicity that comes with it.

And so, if your CEO or another senior manager is suddenly spouting “truths”, perhaps its best if you remind him or her that there are, in fact, rules for the workplace.  And that your CEO is not Donald Trump.

Of course, in Trump’s case, perhaps there’s a third option: maybe he’s just an entertainer in a “reality” show about running for President.  As a character, maybe he’s just playing a role of a candidate who speaks the “truth” like the character playing the President in the 1993 movie “Dave.”

That might still give him an out to disclaim his statements.

Needless to say, your company and your company’s CEO won’t have that option when faced with a hostile work environment claim.