Martha Zackin

DOL Issues Proposed Updates to FLSA White Collar Exemptions

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By Alexandra D. Thaler

On June 30, 2015, the Department of Labor issued its anticipated update to the so-called “white collar exemptions” to the Fair Labor Standards Act (FLSA).   The proposed rule more than doubles the minimum weekly salary threshold for the application of the Executive, Administrative, Professional, and Computer Employee overtime exemptions, and ties the rate to annual data on national wages for full-time salaried employees.  The rule would increase the minimum salary for exempt employees from the current $455 per week, or $23,660 annually, to an estimated $970 per week, or $50,440 annually when the final rule issues, likely in 2016.  The proposed rule would also increase the minimum compensation required to qualify for the Highly Compensated Employee exemption, from $100,000 to $122,148 annually based on current data, also tethered to annual wage rates.  The regulations do not change the optional hourly payment method for qualifying computer employees, which would remain at $27.63 per hour and would not be tied to changes in national wage data.

While the proposed rule does not currently include changes to the duties tests that also must be met for each exemption, in its 285-page statement accompanying the draft rule, the DOL advises that it is considering possible changes to the duties tests, and invites comments on these and other aspects of the exemptions.  For example, the DOL seeks comment on whether the duties tests “are working as intended to screen out employees who are not bona fide” exempt employees, specifically, whether employees should be required to spend a minimum amount of time performing “primary duty” work, whether the single standard duties test for each category is appropriate, and whether the “concurrent duties” regulation should be modified to prevent exempt-classification of otherwise nonexempt employees.  The Department also seeks comments on various other issues relating to the exemptions, including whether the national wage data methodology is appropriate, whether employers should be permitted to credit certain payments, such as non-discretionary bonuses and commissions, toward the salary requirement, and whether any additional occupational titles or categories should be included in the regulations regarding computer and information technology sectors.

In the short term, the rule is expected to affect nearly 5 million workers who currently make less than the proposed $50,440 annual salary threshold.  Still more will be impacted by the increase in the Highly Compensated Employee salary level.  The ultimate impact of the new rule remains unclear, with some economists predicting that workers’ hours, and ultimately wages, will go down to compensate for the changes.   The DOL will accept the public’s comments on the proposed rules, which can be submitted in writing or online until September 4, 2015.  All comments are made available online at http://www.regulations.gov.

Martha Zackin

Updated FMLA Forms Are Now Available

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By Alexandra D. Thaler

The DOL has (finally) updated its FMLA forms, and made them available on its website, here (see “Forms” section toward the bottom of the page).

In addition to revising the expiration date to May 31, 2018, the forms also now include references to the Genetic Information Nondiscrimination Act (GINA).  Most significantly, the Certification of Health Care Provider forms now instruct providers not to disclose information about genetic testing, genetic services, or “the manifestation of disease or disorder in the employee’s family members,” as those terms are defined by regulation. Read more →

Martha Zackin

SEC Sues Over Employee Confidentiality Agreements

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By Martha J. Zackin

Early in March, the Wall Street Journal reported that the Securities and Exchange Commission had begun to probe “whether companies are muzzling corporate whistleblowers” through the use of confidentiality agreements that may impede employees from disclosing corporate wrongdoing.  As reported, the SEC sent letters to a number of companies asking them to turn over “every nondisclosure agreement, confidentiality agreement, severance agreement and settlement agreement they entered into with employees since Dodd-Frank went into effect, as well as documents related to corporate training on confidentiality…”  The agency “also asked for ‘all documents that refer or relate to whistleblowing’ and a list of terminated employees.”

Read more →

Martha Zackin

OFCCP Issues Final Rule to Protect LGBT Workers in the Federal Contracting Workforce

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On July 21, 2014, President Obama issued Executive Order 13672, amending Executive Order 11246, applicable to federal contractors and subcontractors, to add gender identity and sexual orientation to the categories protected by E.O. 11246.  On August 19, 2014, the Department of Labor, Office of Federal Contract Compliance Programs, issued a Directive to “clarify that OFCCP interprets federal contractor and subcontractor nondiscrimination obligations to include the protection of individuals on the bases of gender identity and transgender status.  Today, OFCCP published its final rule implementing E.O. 13672.  The rule will be effective on April 4, 2015, 120 days following the rule’s publication in the Federal Register, and will apply to federal contracts entered into or modified after the effective date.

Read more →

Martha Zackin

New Federal Contractor Reporting Requirements

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The Department of Labor Veterans’ Employment and Training Service (VETS) recently issued its final rule implementing new reporting requirements under the Vietnam Veterans’ Readjustment Assistance Act of 1974 (VEVRAA).  Check out this article, penned by our affiliate, FordHarrison.

Martha Zackin

DOL Publishes Proposed Rule Requiring Submission of Compensation Data to OFCCP

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On August 6, the Department of Labor announced a proposed rule that would require government contractors and subcontractors to submit an annual report on employee compensation to the Office of Federal Contract Compliance Programs.   Under the terms of the proposed rule, which will be published on August 8 in the Federal Register, companies that file EEO-1 reports, have more than 100 employees and hold federal contracts or subcontracts worth $50,000 or more for at least 30 days will be required to submit  summary employee pay and demographic data on an annual basis.  If the rule is implemented in its current form, contractors and subcontractors that meet the referenced criteria will be required to submit information on W-2 compensation paid to employees categorized by sex, race, ethnicity and specified job categories, along with other information such as hours worked.

Comments to the proposed rule must be submitted by November 6, 2014.

Martha Zackin

New Executive Order Signed Requiring Federal Contractors to Disclose Employment and Labor Law Violations

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By Martha J. Zackin

On Thursday July 31, Obama signed a new Executive Order requiring contractors to disclose whether there has been any administrative merits determination, arbitral award or decision, or civil judgment rendered against the contractor  within the preceding 3 years for violations of any of the following laws:

  1.  the Fair Labor Standards Act;
  2. the Occupational Safety and Health Act;
  3. the Migrant and Seasonal Agricultural Worker Protection Act;
  4. the National Labor Relations Act;
  5. he Davis-Bacon Act;
  6. the Service Contract Act;
  7. Executive Order 11246 (pertaining to affirmative action);
  8. section 503 of the Rehabilitation Act;
  9. the Vietnam Era Veterans’ Readjustment Assistance Act;
  10. the Family and Medical Leave Act;
  11. Title VII;
  12. The ADA
  13. The ADEA
  14. Executive Order 13658 (new E.O. dated February 12, 2014, establishing a minimum wage for contractors); or
  15. equivalent State laws, as defined in guidance issued by the Department of Labor.

This requirement applies to contractors bidding on a new contracts for goods or services with a value of $500,000 or above.  Contractors working under existing covered contracts are required to provide updates every 6 months.  Click here for the associated Fact Sheet, which provides a good summary of the new Executive Order.

Martha Zackin

New Beginning

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I discovered the joys of blogging in 2009, when I helped launch an employment law-related blog at another firm.  I recently joined Bello/Welsh, LLP, a boutique labor and employment law firm, where I am excited to be launching our new blog.

Our primary goal here at WorkLawBlog (worklawblog.net) is to educate you about interesting developments in labor and employment law (and our firm).  If we can entertain you along the way, all the better.

On to business… much has happened recently.

  • The Department of Labor issued a final rule extending the Fair Labor Standard Act’s minimum wage and overtime protections to direct care workers who provide home care assistance to elderly people and people with illnesses, injuries or disabilities.   Companionship workers, or individual workers who are employed only by the person receiving services or that person’s family or household and engaged primarily in fellowship and protection and care incidental to such activities, will still be considered exempt from the FLSA’s minimum wage and overtime protections.  You can access the DOL’s press release here.
  • The National Labor Relations Board launched its first mobile app, available free to iPhone and Android users.  According to the NLRB’s press release, the app provides information for employees, unions and employers- whether unionized or not- with information about their rights and obligations under the National Labor Relations Act.  The NLRB joins the DOL’s Wage and Hour Division and the Occupational Safety & Health Administration, both of which have already launched apps.  Click here for the WHD timesheet app and here for OSHA’s heat index for outdoor workers safety app.

And last (for now), but certainly not least…

  •  A NY federal court judge has ruled that Lady Gaga’s former personal assistant is entitled to have a jury decide her claim for unpaid overtime.  According to the former assistant, she was required to be on-call 24/7 and should be paid nearly $400,000 for 7,000 of overtime hours, worked over the course of 13 months.