Government Files Appeal in Overtime Case

By Kathleen Jennings (kjj@wimlaw.com)

To the surprise of almost no one, on December 1, 2016 (the original effective date of the Overtime Final Rule), the Department of Justice on behalf of the Department of Labor filed a notice to appeal the preliminary injunction issued by the Texas federal district court that enjoined the Department of Labor from implementing and enforcing the Overtime Final Rule. The Notice of Appeal was filed with the U.S. Circuit Court of Appeals for the Fifth Circuit, which is considered to be a fairly conservative Circuit.

In connection with the filing, the Department of Labor issued the following statement: “The Department strongly disagrees with the decision by the court. The Department’s Overtime Final Rule is the result of a comprehensive, inclusive rule-making process, and we remain confident in the legality of all aspects of the rule.”

At this point, it is not clear how the appeal will proceed after January 20, 2017. President-elect Donald Trump and his transition team have not indicated how they will direct the DOJ to proceed with the case after Inauguration Day. On the one hand, most businesses (and traditional Republicans) are not in favor of the new overtime rule. On the other hand, during his campaign, President-elect Trump promised to work on behalf of working class Americans, many of whom would be the beneficiaries of this rule.

We will continue to follow this story.

©2016 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Social Media Fails

By Kathleen Jennings (kjj@wimlaw.com)

Poor judgment in using social media knows no age limits. In a recently filed lawsuit against Caterpillar, a 52-year-old female former employee alleges that she was terminated because of her age. Caterpillar maintains that the employee was terminated because she posted something on social media that could be perceived as harassment.

Tammy Applebaum, a former distribution clerk at Caterpillar’s Lafayette, Ind., plant, alleges she was fired for writing a comment responding to a younger co-worker’s Facebook post. Natasha Burns, the younger employee, also happened to be dating Applebaum’s son. According to the complaint, Burns posted a Facebook message alluding to “all the guys” wanting to “take nude photos” of Burns. Applebaum then posted a comment on Burns’ Facebook page, saying “you’ve been down that road before.”

We don’t know whether Applebaum caught any grief from her son, but she did catch some serious grief from her employer. Shortly after the exchange, Caterpillar told Applebaum she was being discharged because it feared she would create “a hostile working environment” for Burns, the complaint said.

Applebaum claims that Burns (who is under the age of 40) was not disciplined for posting on Facebook during working hours, and Applebaum, who is over 40, was discharged, and therefore, Applebaum was discriminated against.

This is another example of how employers may monitor employee social media posts and take action on those that could violate the company’s policy against harassment. Employers have also used employee social media posts to prove that employees have lied about illnesses or reasons for absenteeism. For example, our firm handled a situation for a client where a now former employee called out sick to work for a week, and then posted photographs of herself and her family enjoying a trip to Disney World during that same week.

However, companies also need to be aware that some employee social media posts may be protected by the National Labor Relations Act, especially where those posts pertain to wages, hours and other terms and conditions of employment. Therefore, a company should have its written social media policy reviewed by competent employment counsel to ensure that the policy does not run afoul of the NLRA or other federal or state laws.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

 

©2016 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

EEOC Issues Updated Guidance on National Origin Discrimination

By Kathleen Jennings     (kjj@wimlaw.com)

Last week, the EEOC issued new guidance on national origin discrimination in the workplace. This new guidance did not draw a lot of publicity, probably due to the holiday week and the bigger news story involving the injunction of the Department of Labor’s overtime rule. Nevertheless, this new guidance updates previous guidance that was issued back in 2002. The guidance addresses court decisions since 2002 that affect national origin bias and discusses topics including job segregation, human trafficking and “intersectional” discrimination, which refers to cases in which national origin bias occurs along with race discrimination, sex discrimination or another type of unlawful bias.

The EEOC issued a document entitled “Questions and Answers: Enforcement Guidance on National Origin Discrimination,” as well as a Small Business Fact Sheet, which is also presented in a question and answer format, to accompany the new guidance. One of the important issues addressed by the guidance as these documents is the distinction between discrimination on the basis of national origin as opposed to citizenship of immigration status:

2. What is national origin discrimination under Title VII?

National origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or shares the physical, cultural, or language characteristics of a national origin (ethnic) group.

•An individual’s place of origin may be a country (such as Mexico), a former country (such as Yugoslavia), or a place that is closely associated with an ethnic group but is not a country (such as Kurdistan).

•A national origin group is a group of people who share a common language, culture, ancestry, and/or other social characteristics (such as Hispanics/Latinos or Arabs).

•National origin does not refer to citizenship or immigration status.

The guidance also notes the overlap between national origin discrimination and discrimination based upon other protected characteristics, such as race, color, or religion:

7. Can applicants or employees allege Title VII employment discrimination based on national origin and another basis, such as race, color, religion, or sex?

Yes. In fact, national origin discrimination often overlaps with other forms of discrimination, such as race, color, or religious discrimination.

A person also could challenge discrimination based on a combination of protected characteristics that are inseparable (often referred to as intersectional discrimination). For example, Title VII prohibits discrimination against an employee because she is an Asian woman, even if the employer has not also discriminated against Asian men or non-Asian women.

This guidance does not have the force of law; it is intended to assist agency employees enforcing Title VII of the 1964 Civil Rights Act as well as instruct employers, workers and other parties subject to Title VII. However, courts often look to the EEOC and its publications for direction on legal issues that fall within the EEOC’s enforcement jurisdiction.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

 

©2016 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Overtime Exemption Regulation Blocked


After all the preparation and buildup to the December 1 implementation date of the Department of Labor’s new regulation that would have expanded the number of American employees eligible for overtime, a surprise decision out of a Texas federal court has brought the entire process to a halt. Yesterday, November 22, 2016, a U.S. District Court in Texas granted a nationwide injunction to halt implementation of the salary threshold increases.

The attorneys general of Nevada and 20 other states had asked the court to freeze implementation of the Department of Labor’s May 23, 2016 regulations, which more than doubled the existing salary threshold for the overtime exemption for executive, administrative, and professional employees from $23,660/year ($455/week) to $47,892/year ($921/week).

With the support of over 50 business organizations, including the U.S. Chamber of Commerce, the States moved for emergency injunctive relief. They challenged not only the adverse monetary impact the new rule would have on state budgets, but also the updating mechanism that provided for unlimited, automatic increases to the salary threshold based on labor department wage surveys.

The Court acknowledged that Supreme Court precedent allowed the Fair Labor Standards Act (FLSA) to be applied to the states, and that courts generally defer to regulatory agencies that implement laws through regulations. However, the Court found that Congress’ intent was to exempt bona fide executive, administrative, and professional employees from overtime based on their duties, and that the Department of Labor overstepped its authority in decreeing a salary level that effectively supplanted the duties test: “The Department’s role is to carry out Congress’s intent. If Congress intended the salary requirement to supplant the duties test, then Congress, and not the Department, should make that change.”

The Court found that the Department’s regulatory action was not entitled to deference under the Supreme Court’s Chevron test. That decision, much debated in recent years, holds that courts should bow to agencies’ interpretation of the laws they enforce, but there are limits. Here, the Department exceeded the permissible limits on construction of the statute by setting the salary level so high that it effectively nullified Congress’ “duties” test.

This decision is obviously big news for both employers and employees. Companies are free to reconsider or suspend wage increases planned to ensure December 1 compliance. Although this decision plainly is independent of the recent Presidential election, it may be a harbinger of regulatory rollback that will have widespread impact on the economy.

Questions? Need more information? Contact Betsy Dorminey (ekd@wimlaw.com)

or Larry Stine (jls@wimlaw.com) or call 404-365-0900.

©2016 Wimberly Lawson

 

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

How Will The Trump Administration Impact Labor and Employment Law?

 


By James W. Wimberly (jww@wimlaw.com)

 

Labor and employment lawyers believe that the new Administration will have a different view of labor and employment issues that may be more hospitable to employer concerns. Some expect more pro-business decisions from the Labor Department, the National Labor Relations Board, and the Equal Employment Opportunity Commission. Officials at those agencies must be replaced, some only when their terms expire, and undoubtedly the new appointees will be consumed with undoing many controversial positions. President Obama largely relied on executive orders and directives or interpretations of the federal regulatory agencies to bring about change. The new Administration is more likely to emphasize education rather than punishment of employers. Trump has repeatedly emphasized that too much regulation has been hurting the American economy.

 

In some areas, changes instituted while the Democrats were in power allow the Republicans more leeway. Tax bills may now be passed with simple majorities in the House and Senate. The same applies to many lower court and executive branch appointments. Other congressional changes are subject to the filibuster, as the Republicans still lack the 60-vote threshold to cut off debate.

 

Trump may use executive authority to issue or revoke executive orders and to set immigration “enforcement priorities,” tactics used by President Obama. Mr. Trump likewise could affect parts of certain laws without turning to Congress, such as by changing the government’s position in pending litigation on ObamaCare, portions of the new salary test for white collar overtime exemptions, and regarding pending challenges to federal regulatory actions. The Administration could also take a series of steps to start a formal process to withdrawal implementation of upcoming regulatory requirements and take steps to relax the compliance requirements.

 

Let’s now look as some specific areas and how they might be affected by the Trump Administration.

 

    1.    The Courts: The U.S. Supreme Court is now evenly split between four Justices generally considered conservative, and four generally considered liberal. Justice Scalia’s seat remains vacant, and the President will likely move early in his Administration to appoint a successor. Appointments to the Supreme Court are subject to filibusters, however, which cannot be shut off without a 60-vote majority. Some of the areas a new Court with a majority of conservatives might affect change or at least address include the constitutionality of public-sector unions requiring mandatory dues payments, and certain immigration issues. In some cases, the new Administration may simply change regulatory policies or positions in the litigation, causing the cases to be removed from the Supreme Court docket. Pointing in the other direction, the Supreme Court supposedly has not accepted review of certain issues because they expected the issues to be deadlocked, but with a full group of nine justices, reviews in other areas may be more likely.

 

    2.    Wage-Hour Law: The elections will not affect the December 1 effective date for the new regulations requiring employers to pay overtime unless a salaried exempt employee is paid $47,476.00 or more annually. While there is a pending lawsuit concerning the validity of this new law, it is not expected to change the enforcement date. The Trump campaign did not address the new overtime rule, but in any event a new rule-making process would have to begin that would take a year or two to make a change. While there might be a bill to delay or rescind the new rule passed during the Trump Administration, by that time employers would have already taken steps to comply and the new system would be in place. A more likely candidate for change is the provision allowing inflation-based adjustments in the salary threshold every three years. Regarding the minimum wage, Trump has stated that the minimum wage should be $10.00, but added that this is an issue that should be left up to the states.

 

    3.    Labor Relations: As the new Administration appoints members to the National Labor Relations Board, it is likely that many of the changes during the last eight years overturning precedent in favor of more pro-union rulings, will themselves be overruled and doctrines returned to their status prior to the Obama Administration. Major candidates for change include those decisions attacking common employer personnel policies as overbroad, policies attempting to allow so-called “quickie” strikes, policies discouraging exercise of union decertification rights, policies regarding joint employer and micro-units, and policies finding individual employment agreements requiring individual arbitration of employment disputes to be unlawful. It is also likely that the new NLRB “quickie election” rule will be changed, although as indicated earlier, changing federal regulations requires one to two years to implement.

 

    4.    Equal Employment: The President-Elect has taken few positions on equal employment issues. He says that he supports women’s rights, and has proposed federal mandatory paid maternity leave. He has said that transgender people should be able to use the bathroom they feel is appropriate, suggesting he has a moderate position on LGBT rights. However, he has repeatedly stated that federal regulations are choking the economy, suggesting that he may oppose some of the Obama measures instituted by federal executive order or by federal regulatory requirements.

 

    5.    Government Contractor Issues and Other Regulatory Requirements: Perhaps two of the most “endangered species” of the Obama regulatory requirements are the so-called persuader rule requiring disclosure requirements for employers that use advisors to help concerning union issues, and the Fair Pay and Safe Workplaces Executive Order for government contractors, that requires contractors to disclose certain employment law violations as part of consideration of getting a government contract. Federal judges have already issues injunctions to stop these laws and therefore they are subject to easier removal when the President-Elect takes office. The EEOC’s pay data disclosure obligations in EEO1 reports will likely be reviewed by the new Administration as well as the rule limiting incentives for workers who participate in employer wellness plans. It will be interesting to see how the new Administration addresses the prevailing wage requirements on various government contractors, as traditionally Republicans have opposed such requirements as increasing infrastructure costs, but Trump has supported in some aspects the concept of prevailing wages.

 

    6.    Immigration Measures: While Trump’s overall position on immigration is well-known, the specifics of his position are less well-known. For example, he has talked about deporting large numbers of illegal immigrants, but also said that his enforcement priorities will include removing criminals, gang members, security threats, visa overstays, and public charges. While he said that illegal immigrants are subject to deportation, he has also said the government will set priorities. One area that may be supported by the new Administration is mandatory E-Verify, an electronic employment verification system that matches employees’ records with government databases, which currently is voluntary. These issues are particularly interesting since many Republican voters don’t support all the campaign promises on immigration.

 

    7.    Government Regulatory Penalties: Legislation was passed by Congress in 2015 requiring federal agencies to adjust their penalties to account for inflation. In response, government agencies increased their penalties for immigration, OSHA, and other violations. Since these penalties were set forth in a federal statute, they will be difficult to change, although the agencies may find it easier to change the continuing increases in penalties based on inflation. It will be much easier for the agencies to be more cooperative during investigations and prosecutions and concentrate more on educational measures.

 

 

Given Trump’s populist leanings and lack of specifically-defined programs, many uncertainties remain for the labor and employment community. However, plans to improve the economy and lessen burdensome regulations will benefit the employer community.

 

James W. Wimberly, Jr. is a Senior Principal with Wimberly, Lawson, Steckel, Schneider & tine, P.C. He can be reached at (404) 365-0900 or jww@wimlaw.com.

 

©2016 Wimberly Lawson

 

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Persuader Rule Permanently Enjoined

By Kathleen Jennings kjj@wimlaw.com)

Management side labor lawyers and consultants and their clients are breathing a sigh of relief after a Texas federal court entered a nationwide permanent injunction that bars enforcement of the Labor Department’s so-called “Persuader Rule.” As we had reported back in June, the same federal District Judge had entered a preliminary injunction against enforcement of the Persuader Rule. The Persuader Rule, first proposed in 2011, amended the federal Labor Management Reporting and Disclosure Act (LMRDA) to require detailed reports from employers and their advisers, including the types of consulting or legal services rendered and any fees paid. Under the DOL’s prior interpretation of section 203 of the LMRDA, an employer and consultant would be required to file a report of persuader activities only if the consultant communicated directly to the workers.

In a lengthy decision granting the preliminary injunction, the Judge made it clear he was convinced the DOL Persuader Rule violated the Labor-Management Reporting and Disclosure Act and the First and Fifth amendments to the Constitution.

Business groups consider this ruling a major victory. The Department of Labor can file an appeal, but as a practical matter, the new Persuader Rule is likely to be repealed or amended by the Trump administration.

Kathleen Jennings, Principal is a partner in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She can be contacted at kjj@wimlaw.com.

©2016 Wimberly Lawson

Federal Court Adopts Magistrate’s Recommendation That OSHA Inspection Warrant Be Quashed


As we reported in an earlier blog post, a federal magistrate judge recommended that a warrant OSHA sought to conduct a comprehensive inspection of a North Georgia poultry plant be quashed (invalidated). In a follow-up to that post, we are pleased to report that on November 2, 2016, U.S. District Court Judge William C. O’Kelley (a Nixon appointee) of the Northern District of Georgia approved and adopted Magistrate Judge J. Clay Fuller’s August 5, 2016 Report and Recommendation, which found that the warrant should be quashed because OSHA failed to use Constitutional methods to select Mar-Jac for an intensified inspection after it reported an injury. This decision is significant because invalidates OSHA’s Regional Emphasis Program (REP) for Poultry Processing Facilities, announced in October 2015, as the basis for expanding an unprogrammed, incident-related inspection to a comprehensive, or “wall-to-wall,” inspection covering the entire plant.

    In his opinion, Judge O’Kelley examined, and rejected, each of OSHA’s objections to the magistrate judge’s Report and Recommendation. For example, OSHA argued that the REP was a neutral plan, but the judge pointed out that it allowed the Area Director unbridled discretion to select targets, and therefor that the purported neutrality was an illusion. The Area Director’s testimony was liberally cited in support of this conclusion. OSHA’s argument that the REP’s instruction to expand all unprogrammed inspections, subject only to resource allocation considerations, was exposed as a sham, since the Area Director confirmed that he had the resources to conduct at most one or two comprehensive poultry plant inspection per year.

The judge noted that OSHA had many legitimate, neutral criteria at its disposal for selecting candidates for inspection that did not repose all discretion in a single official, and observed that while probable cause sufficient to support criminal prosecution is not required, the Constitution does require reasonable suspicion for an administrative search, and that was wanting here. He also rejected OSHA’s contention that the 300 logs of injury and illness were sufficient probable cause, noting (correctly) that those logs contain information about incidents, but nothing at all about causation. He also noted that Mar-Jac already had undergone an intensive, 4-month-long comprehensive inspection, in 2009.

The district Court’s ruling is important for all employers because it reminds OSHA that it is subject to the limits on search and seizure enshrined in the Fourth Amendment to the U.S. constitution. We are pleased to have been able to put our client’s case before the court, and that the court has approved the Magistrate’s Report and Recommendation to quash the warrant.

Questions? Need more information?

Contact Larry Stine at jls@wimlaw.com or (404) 365-0900.

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©2016 Wimberly Lawson