Department of Labor to Hold “Listening Sessions” on Overtime Rule

By Kathleen J. Jennings (kjj@wimlaw.com)

Remember the uproar about the increase in the salary threshold for certain overtime exemptions? Although implementation of the substantial salary threshold increase proposed by the Obama administration never came to fruition, the issue has not gone away entirely. Today, the Wage and Hour Division (WHD) of the U.S. Department of Labor announced that in the upcoming weeks it will hold “public listening sessions” to gather views on the Part 541 white collar exemption regulations, often referred to as the “Overtime Rule.” Issued under the Fair Labor Standards Act, these regulations implement exemptions from overtime pay requirements for executive, administrative, professional, and certain other employees. The Department plans to update the Overtime Rule and is interested in hearing the views and ideas of participants on possible revisions to the regulations.

According to its website, the WHD seeks public input on questions such as:

  • What is the appropriate salary level (or range of salary levels) above which the overtime exemptions for bona fide executive, administrative, or professional employees may apply?
    • Why?
  • What benefits and costs to employees and employers might accompany an increased salary level?
    • How would an increased salary level affect real wages (e.g., increasing overtime pay for employees whose current salaries are below a new level but above the current threshold)?
    • Could an increased salary level reduce litigation costs by reducing the number of employees whose exemption status is unclear?
    • Could this additional certainty produce other benefits for employees and employers?
  • What is the best methodology to determine an updated salary level?
    • Should the update derive from wage growth, cost-of-living increases, actual wages paid to employees, or some other measure?
  • Should the Department more regularly update the standard salary level and the total-annual-compensation level for highly compensated employees?
    • If so, how should these updates be made?
    • How frequently should updates occur?
    • What benefits, if any, could result from more frequent updates?

If you or your business want to share your thoughts with the WHD about these issues, you can attend the listening sessions in any of the following cities:

September 7, 2018, 10am-12pm

Intercontinental Buckhead Atlanta

3315 Peachtree Rd NE- Trippe Room

Atlanta, GA

September 11, 2018, 10am-12pm

Jackson Federal Building

912 2nd Ave., Ste. 566

Seattle, WA

September 13, 2018, 10am-12pm

Holiday Inn Country Club Plaza

One E 45th St, -Ballroom A/B

Kansas City, MO

September 14, 2018, 10am-12pm

Remington Arms Room

DFC- Building 41

Denver, CO

September 24, 2018, 10am-12pm

Rhode Island Convention Center

1 Sabin Street- Room 551A/B

Providence, RI

There is no fee to attend the listening sessions; however, registration is required.

We expect that there will be some increase in the salary threshold for the overtime pay requirements for executive, administrative, professional, and certain other employees, but it will not be as large as the one proposed by the Obama administration. We will continue to provide updates on this issue.

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.

©2018 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 Continues to Aggressively Pursue Litigation Against Employers

By Kathleen Jennings (kjj@wimlaw.com)

Despite being well over a year into the new Republican administration, the EEOC shows no signs of slowing down its aggressive litigation efforts. In just the last week, the EEOC announced three multi-million dollar settlements of lawsuits that it brought against private employers.

  • On July 30, 2018, the EEOC announced that the SLS Hotel, operated by hotel, restaurant and nightlife company called “sbe”, will pay $2.5 million and provide other relief to settle the discrimination lawsuit brought by the EEOC. According to the EEOC’s lawsuit, black Haitian dishwashers were wrongfully terminated on the basis of their race, color, and national origin and were replaced by a staffing agency workforce of mostly light-skinned Hispanics. The terminated dishwashers worked in the kitchens of The Bazaar by José Andrés, Katsuya, and the Hyde Beach-all restaurant venues located at SLS Hotel, in South Beach.

    The dishwashers testified that their supervising chefs referred to them as “slaves” and reprimanded them for speaking Creole, even amongst themselves, while Hispanic employees were allowed to speak Spanish. The testimony also revealed that the black Haitian dishwashers complained to human resources about discrimination and about having a “racist” supervisor but, instead of addressing these complaints, the SLS Hotel fired the entire dishwashing department made up primarily of black Haitians, without providing them an opportunity to apply to the staffing agency before their termination.

  • On August 1, 2018, the EEOC announced that a U.S. District Court approved a consent decree between Alorica, Inc. and the EEOC for $3.5 million and remedial measures to resolve a sexual harassment lawsuit. According to the EEOC, male and female customer service employees were subjected to harassment, including a sexually hostile work environment, by managers and coworkers. The EEOC further alleged that the onsite human resources staff failed to properly address the harassment despite repeated complaints by employees.

     

    In addition to the monetary relief, Alorica agreed to significant injunctive relief in the form of a three-year consent decree, which includes the hiring of a third-party monitor; the creation of an internal equal employment opportunity consultant and internal compliance officer; and, sexual harassment training, including incorporating civility and bystander intervention training, for its employees. The company also agreed to revise its anti-discrimination and retaliation policies and procedures as well as maintain records of any future sexual harassment and retaliation complaints, audits, and reporting.

     

  • Also on August 1, 2018, the EEOC announced that Koch Foods, one of the largest poultry suppliers in the world, will pay $3.75 million and furnish other relief to settle a class employment discrimination lawsuit filed by the EEOC. According to the EEOC’s lawsuit, Koch subjected Hispanic employees and female employees to a hostile work environment and disparate treatment based on their race/national origin (Hispanic), sex (female), and further retaliated against those who engaged in protected activity. EEOC alleged that supervisors touched and/or made sexually suggestive comments to female Hispanic employees, hit Hispanic employees and charged many of them money for normal everyday work activities. Further, a class of Hispanic employees was subject to retaliation in the form of discharge and other adverse actions after complaining.

    In addition to paying the money, Koch Foods will take specified actions designed to prevent future discrimination, including implementing new policies and practices designed to prevent discrimination based on race, sex or national origin; providing anti-discrimination training to employees; creating a 24-hour hotline for reporting discrimination complaints in English and Spanish; and posting policies and anti-discrimination notices in its workplace in English and Spanish.

Note that in all of these cases, the employers did not admit to liability.

The Takeaway: The EEOC continues to file enforcement actions against employers, primarily in the areas of harassment and disability discrimination, which are among its enforcement priorities. One of the major downsides of an EEOC-filed lawsuit is that the EEOC almost always insists on a press release publicizing the amount of any settlement. This is in contrast with the settlements of most privately filed employment lawsuits, where the parties can usually agree to keep the amount of the settlement confidential.

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.

©2018 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.