USDOL Headquarters in DC
USDOL Headquarters in DC

Over the last few weeks, there’s been a lot of bluster about lawsuits filed that are challenging the new overtime rules that are set to take place in just a few weeks. And there was also news that Congress was considering a law restricting the law as well.

Both seem unlikely to come to pass and employers that have been postponing action in the hopes of a “white knight” on the issue should think twice.

I covered the new rules in several prior posts (here and here, for example). But as a reminder, the rule becomes effective December 1, 2016. Note that December 1 is a Thursday, so employers will have to make sure that the entire pay period is compliant with the new rule.

So, that leaves you with precious few weeks to get into compliance.  There are a number of different approaches to take and its definitely not a one-size-fits-all type of law.

One suggestion though is to have your trusted attorney or HR consultant take a look at any questions you have.  We have done this for several and there are some challenges that may seem unique to your business that other companies have struggled with as well.

If the court suspends implementation of the new rules, you can still decide then, but it may be a game-time decision given how late we are in the process.

With the new federal overtime rules going into effect later this year, I thought it would be useful to talk about in a free webinar.

And apparently, many of you think it would be useful too because in the 48 hours that we’ve opened up the signups to our webinar, we already have a record-breaking number of signups.

worker3But because it’s online, we have room for more.  So consider this your invite to attend a free webinar on June 7th from noon to 1 p.m. EDT.

Topics will include:

  • Overview of the new federal overtime rule
  • Comparison with Connecticut’s existing (and unchanged) wage and hour rules
  • Tips on how to comply with both state and federal law
  • Discussion of common scenarios arising under the new law

I know there’s a lot of anxiety about these rules, but I hope this webinar can put a smile to your face and ease some of your concerns.

If not, then watch the James Corden version of the “Chewbacca Mom” meme.    If that doesn’t put a smile to your face, I’m not sure the webinar is going to help.

yankees3With Opening Day of baseball season nearly upon us, it’s time again to bring back a “Quick Hits” segment to recap a few noteworthy (but not completely post-worthy) employment law items you might have missed recently.

  • The U.S. Department of Labor released the final version of new “persuader” rules which will become effective April 25, 2016.  The new rules revise the “advice” exemption and will require a larger universe of consultants, lawfirms, and employers to report their labor relations advice and services.  You can find many recaps of the new rule (here and here, for example).  For Connecticut employers, if you haven’t had to worry about “persuader” reporting before (and don’t know what it is), it’s not likely to change things much, though for law firms and consultants, it may have a more significant impact.
  • Not every U.S. Supreme Court case is a big one.  The latest example of that is the Tyson Foods, Inc. v. Bouaphakeo et al. case that was issued last week. In that case, the court ruled that employees could use representative evidence to establish liability and damages for class certification purposes in a donning and doffing case. As another blog post stated sufficiently, this decision allowed employees to rely on a “time study conducted on a sample of class members to calculate an average donning/doffing time, which is then extrapolated to each member of the class — even if the actual time spent on the activity in question varies dramatically among employees and even if some of the class members failed to prove damages at all based on that time study.”  For most employers, however, the decision will have limited utility. Donning and doffing cases are, for example, fairly rare.
  • An interesting case up for oral argument at the U.S. Supreme Court today looks at the limited circumstances in which an employer can recover attorneys’ fees as a “prevailing party” in a Title VII suit.  The SCOTUSBlog has more on this case here.
  • Tax season has renewed fears regarding the privacy of W-2 forms.  A spear-phising e-mail scheme has been making the rounds of late, as this post reminds us.

 

USDOL Solicitor Smith speaks at ABALEL conference
USDOL Solicitor Smith speaks at ABALEL conference

Over the next few days, I hope to provide a few updates from attending last week’s ABA Labor & Employment Law Annual Conference in Philadelphia.  There were many good, substantive programs there and lots to be gleaned for employers.

One of the sessions focused on the proposed revisions to the white collar overtime exemptions that were released for comment earlier this year.  The Department of Labor Solicitor Patricia Smith provided some insights in a panel discussion about where things were headed.

(For more background on these proposed revisions, see my prior post here.)

The solicitor indicated that the DOL received over 270,000 (!) comments to the proposed revisions and that more than 3,000 of those were “substantive” in nature. That unprecedented number of comments means that a good deal of time must be spent by the DOL to review those comments. She indicated the DOL was still reviewing the comments.

As a result, she indicated that the final version of these white collar revisions would not come out until sometime in 2016.

You might be asking: When exactly?

Well, she didn’t indicate that other than to say that she hint opaquely that it might be “late” in the year.

My own speculation (and let me be clear that it is just that) is that the final revisions may not come out until after the 2016 Presidential election.  If they are released beforehand, it is possible, and perhaps probable, that they will become a campaign issue.

In any event, when the final revisions come out, the DOL solicitor indicated that employers will have 60 days to comply.  Thus, at this point, the very earliest employers can expect to implement these revisions is March or April 2016 – and again, that’s not likely.

So what are employers to do now? The usual things: Keep up to date on what is going on; review your existing positions for compliance and with an eye towards the revisions; consider your salary range for people that are close to the $50k proposed threshold.

UPDATED 11/22/13, 3p

Earlier this week, members of the CBA’s Federal Practice Section were informed that the Initial Discovery Protocols in Employment Cases are now being used by all the judges in the district.

As such, lawyers and clients should now expect to deal with them in various types of discrimination cases filed in federal court — at least in the District of Connecticut.

You can download the protocols here.

What’s in them? I’ve first covered them way back in 2011, and have followed up with posts in 2012 and 2013 so I’m not going to repeat it verbatim here.

But what’s important for employers to understand that they have just 30 days from a responsive pleading to do these initial disclosures.

These disclosures include things such as the employee’s personnel file and all communications concerning the factual allegations between the employee and the employer, and between the managers/supervisors and/or human resources.

That potentially is a significant undertaking in the early stages of a case.

As an aside, if anyone from the federal court clerk’s office reviews this, how about posting a link to them directly from the “Forms” page instead of under an individual judge’s name? Or put them up on the “Local Rules” page.

The protocols are still tough to find on the website itself other than under Judge Arteron’s page.   A search of “protocols” on the website only shows one reference to them.  In light of the adoption, the protocols should be more readily accessible.

[Updated] – Since my post of this morning, the Clerk’s Office has now updated the Rules and Orders page and posted the following notice. Great work by the court to provide this information:

The Clerk’s Office began entering the Notice re: Discovery Protocols in all civil cases with Nature of Suit codes (442, 445, 710, 720, 790, 791, and 751), for new cases filed on or after 12/1/12 and assigned to Judges Hall, Chatigny, Thompson, Arterton, Underhill, Bryant, Shea and Haight.

These protocols have been endorsed by the Judicial Conference Advisory Committee on Civil Rules and are designed to achieve the goal of more efficient and targeted discovery.

I’ll admit something that might seem a little unusual and ironic:  I’ve grown a bit tired about writing about the NLRB and social media. 

Perhaps, it’s because I’ve seen too many law firms and lawyers issuing newsletters, blog posts, and alerts each time the NLRB says something, anything, about social media. 

Hearing Too Many “Alerts” on the NLRB?

Because people on social media love WRITING about social media, decisions on the subject keep getting a disproportionate share of coverage.  Frankly, it’s like drivers that use their horns too much. After a while, it’s just noise.

With some notable exceptions, what’s missing from the coverage is perspective.  

Take the latest decision by the NLRB in the Knauz BMW case this month. Yes, it’s one of the first times the Board (as opposed to an administrative law judge) has upheld the legitimacy of a firing that was based on some inappropriate photos posted by the employee Facebook page. 

But that really wasn’t a big issue for the Board because the ALJ’s decision on this topic was affirmed without comment.  Indeed, there was nothing to indicate that the Facebook post was “protected and concerted” — i.e. discussing the terms and conditions of employment with co-workers. 

As the Workplace Prof blog correctly noted, the Knauz BMW cases is just one of a series of “largely run-of-the-mill concerted and protected cases….” 

Of course, as the NLRB has said they would do, the Board has also been issuing decisions that attack what appear to be  facially neutral employment policies and finding that these policies violate the employees’ rights to engage in protected activity.  (Jon Hyman, of the Ohio Employer’s Law Blog, recaps three of them.)  On first glance, this too, has seemed somewhat important to follow.

But its important to recognize that this “trend” is not new.  For example, back in 1998 (and in several other cases beforehand as well), the NLRB issued a decision in Lafayette Park Hotel that attacked bans on “derogatory” statements or policies that prohibited the disclosure of “confidential” information if it prevented employees from discussing wage & benefit information. 

The larger view is that the NLRB is doing, unfortunately, what is always does — which is change policies and logic based on which party controls the White House. It has done it before under the Clinton and Bush years, and the latest decisions merely continues that trend. 

Should anyone really be surprised that the NLRB’s rulings are reverting back to a perspective that we had under the Clinton White House?

So, where does that leave employers? Resist the urge to act (and overreact) based on each decision or pronouncement from the NLRB.  Yes, the law is developing, and yes, its important to make sure that you are compliant with the law, but the overall principles have been in play and in flux for years. 

Review your policies. Check to be sure that they’re not so one-sided that they could be interpreted as chilling protected concerted activity. And seek counsel when terminating employees for social media activity. 

Ultimately, resist the urge to obsess over each decision from the NLRB.  Becuase it just may change again before you know it.

Life moves pretty fast. If you don’t stop and look around once in a while, you could miss it. – Ferris Bueller

Well, did you miss it?

Just as people were settling down to the NLRB’s new speedy election rules this month, events over the last two days have completedly upended that.

First was the Court action. As noted by the Employer Law Report blog, “The NLRB was issued a stunning rebuke yesterday by U.S. District Court Judge James Boasberg (an Obama appointee) when he ruled that the NLRB’s controversial union election rule changes were invalid because they were enacted without the required three-member quorum.”

Second, the NLRB itself reviewed the ruling and its rule and yesterday suspended implementation of the new rule.  As reported by Labor Relations Today, “The Board just announced it has temporarily suspended the implementation of changes to its representation case procedures. While Board Chairman Mark Gaston Pearce reiterated his support for the rule changes, pending review of legal options, the Board will continue to process representation petitions under the previous, long-standing guidelines. ”

You can read the NLRB’s announcement here. 

You may recall that the NLRB also tried to institute new rules regarding postings in the workplace. But court challenges to that rule also led the NLRB to suspend implementation of that rule too. 

For employers, the last few days have moved pretty quickly.  But if you’re keeping score at home, it might read: Courts 2, NLRB 0.  Stay tuned.

 

The Department of Labor today proposed new regulations of the FMLA that would explain further the military family leave provisions and incorporate some special provisions for airline flight crews. 

The new proposed regulations are in response to the National Defense Authorization Act for Fiscal Year 2012 which amended the FMLA to extend the military caregiver leave entitlement to eligible family members of certain veterans and to extend the qualifying exigency leave entitlement to eligible family members of the Regular Armed Forces. 

You can find the DOL’s Notice of Proposed Rulemaking here.   You can download the actual proposal (213 pages) here.   The DOL’s Frequenly Asked Questions (FAQ) are available here.   

What’s changed? According to the DOL, the major provisions include:

  • the extension of military caregiver leave to eligible family members of covered veterans with a serious injury or illness;
  • a flexible, three part definition for serious injury or illness of a veteran;
  • the extension of military caregiver leave to cover serious injuries or illnesses that result from the aggravation during military service of a preexisting condition for both current servicemembers and veterans;
  • the extension of qualifying exigency leave to eligible family members of members of the Regular Armed Forces;
  • inclusion of a foreign deployment requirement for qualifying exigency leave for the deployment of all servicemembers (National Guard, Reserves, Regular Armed Forces);
  • the addition of a special hours of service eligibility requirement for airline flight crew employees; and
  • the addition of specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.

Before employers get too wrapped up in this, understand that these are just proposed regulations.  The DOL is soliciting comments and may make further changes before final release.  Employers who have an interest in the subject can submit their comments to the government’s website here.

We had another great turnout last week  for my firm’s seminar on labor & employment law.  Many of the topics would be familiar to avid blog readers, but there were three interesting points that I haven’t talked much about that I thought were also notable.

1.  In September, the IRS announced a Voluntary Classification Settlement Program which allows employers who have misclassified employees as “independent contractors” to escape some tax consequences for re-classifying them as employees.  There are downsides to this program (including opening yourself up to a wage & hour lawsuit by the employee) but it might work for some employers in some circumstances.

Interestingly, Deputy Labor Commission Dennis Murphy indicated at the seminar that Connecticut is exploring a similar program which may (or may not) get announced in early 2012.

2.  The DOL has an active Rapid Reemployment Initiative that connects employers with unemployed workers.  In doing so, the state also is providing financial incentives to employers who hire unemployed workers.  Details can be found on the DOL’s website.

3. There are also changes to the NLRB’s election rules that got passed last week.  Labor Relations Today has all the details. Among the approved changes

  • giving hearing officers the discretion to deny requests by parties to submit post-hearing briefs
  • eliminating the 25 day period between the issuance of a decision and direction of election by a regional director and the holding of an election
  • giving the Board the discretion to refuse to review a regional director’s resolution of post-election disputes

If you signed up for the seminar and were unable to attend (or attended) and would like a copy of the materials, please send me a note at dschwartz@pullcom.com.

My thanks to all who attended and made the program a big success.  Stay tuned for details on our next program in Spring 2012.

As I mentioned last week (when in Connecticut, we were focused on Irene), the NLRB has been busy in August issuing new rules and new rulings.

Some people are expressing surprise at the shift seen in these rules and disgust that prior NLRB rules are effectively being overturned.  But none of this should be surprising whatsoever.

Indeed, back in 2009, when the NLRB chairperson was nominated, I quoted another blog as saying that “As Chairman of the NLRB, it can be reasonably expected that she will direct the Board’s energies to enforcing labor laws, promoting collective bargaining, and issuing rulings that effectively overturn a number of Bush-era NLRB rulings that organized labor and some Democratic Senators are determined to reverse. … As a proponent of unions, Liebman will surely do just that if given the opportunity.”

But lest you think this is a Republicans vs. Democrats issue, it’s not. It is what every NLRB has done for a generation.  Indeed, when President Bush took over in 2001, his appointees shifted the board.  Rulings were overturned and new rules and regulations for employers were barely seen or heard from.

Personally, I think its terrible that we have a government agency so blatantly political (on either side).  It prevents employers and employees from having settled expectations and it undermines the entire judicial system when cases are overturned for political purposes (under the guise of the Rule of Law).

But this is the reality of the agency.  Rather than cry foul over the latest changes and be indigent, we’re best off when we understand the changes that are taking place and respond accordingly.

Others have done a good job explaining the changes so I’m merely going to summarize them here with links to further resources if you have an interest in a particular topic.

New Postings

First and perhaps more importantly, a new NLRB effective by November 14, 2011 will require basically all private sector employers to put up a new posting regarding unions.  The notice is in some ways similar to what some employers have to post after an unfair labor practice charge for for federal contractors.  The text of the notice is linked here. The NLRB has a FAQ on the new rule here.

Although I can’t imagine employers are happy about the notice, these types of notices are put up on bulletin boards all the time.  I’ve yet to see an employee standing and actually reading them.  Besides, if employees wanted to find out more about a union, they could type “how do I form a union” into Google.   You get 173 million responses.

Bottom Line: Stop worrying about whether a poster is going to lead to a union and worry about the overall environment instead.  Oh, and just get a copy of the poster and put it up.

New Cases

The NLRB also issued three new cases this week, that overturns some key precedents on a union majority status.  (You can read a summary here.) One case overturns precedent which had adopted a special test for bargaining unit determinations in nursing homes, rehabilitation centers, and other non-acute health care facilities. According to the NLRB, employees at such facilities will now be subject to the same “community-of-interest” standard that the Board has traditionally applied at other workplaces.”

Another case questions whether employees always have a right to a secret ballot election.  In rare circumstances, where card-checks are used, the employee may not have a right have that right.

Bottom Line: If you have an interest in labor law, you’ll want to followup to see if any of the rules have a particular application to your business; some are more technical than substantive.