Whatever Happened to the Proposed Increase in the Salary Threshold for Overtime?

By Kathleen Jennings (kjj@wimlaw.com)

Last year at this time, employers were scrambling to comply with the Department of Labor’s new regulations which would have 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). The regulations were projected to make 4.2 million more workers eligible for overtime. Advocates for the increase asserted that the new regulations would bring more families closer to a living wage. Businesses argued that the regulations would increase their labor costs to the point where they would need to consider decreasing base salaries or lowering the number of their employees.

Before the regulations took effect on December 1, 2016, everything came to a halt when a federal district court enjoined implementation of the regulations. The Obama administration appealed the injunction to the Fifth Circuit of Appeals. In the meantime, Trump was elected President. Now his Labor Department is handling the appeal on behalf of the government.

So what is happening with those regulations now? Will the salary threshold for the overtime exemption increase?

We received a clue on June 30, 2017, when lawyers for the Labor Department told the Fifth Circuit Court of Appeals that the Labor Department plans to revise the pending Obama era overtime rule. They asked the court to affirm the DOL’s right to use salary levels to determine eligibility for time-and-a-half pay in the future, but to ignore the specific levels contained in the Obama-era regulation: “The Department requests that this Court not address the validity of the specific salary level set by the 2016 final rule ($913 per week), which the Department intends to revisit through new rulemaking.”

In other words, the DOL wants the court to affirm that the department has the authority to set a salary threshold under which workers are automatically eligible for overtime pay for hours worked beyond 40 per week so that the current DOL can make its own changes to that threshold amount.

When will this happen? Not anytime soon. The DOL will not initiate any new rulemaking on the salary threshold for overtime until after the Fifth Circuit rules that the DOL has the authority to do so.

What we know now: The Obama-era increase in the salary threshold for overtime will not be implemented while Trump is in office. Whether the Trump DOL will make any moves to increase that threshold, albeit at a much lower level, remains to be seen.

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.

©2017 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.

Paid Sick Leave and On Call Scheduling: Changes in Georgia Law Effective July 1

By Kathleen Jennings (kjj@wimlaw.com)

July 1 is traditionally the time for new laws to take effect in the state of Georgia. This year, there are two new laws that Georgia employers need to be aware of.

Paid Sick Leave. Effective July 1, 2017, Georgia employers that already provide paid sick leave to employees will be required to allow employees to use up to 5 days of that paid sick leave to care for immediate family members. The law defines “immediate family member” as “an employee’s child, spouse, grandchild, grandparent, or parent or any dependents as shown in the employee’s most recent tax return.” Note that the new law does not require employers to offer paid sick leave to employees; rather, it applies only if an employer elects to offer paid sick leave to employees. Note also that the law applies only to employers with more than 25 employees, and only to employees who work at least 30 hours a week. Thus, part-time employees who work less than 30 hours a week are not entitled to the protections of the new law.

Pro tip: Georgia is not the only state that has enacted a law dealing with paid leave for employees; we have seen other states (Arizona, New York) and municipalities (Chicago, Cook County Illinois, Minneapolis, St. Paul) enacting such laws. Employers should be alert for new developments in the areas where they have employees.

On call scheduling. This new Georgia law preempts local governments from adopting higher minimum wage requirements or requiring additional overtime pay above and beyond federal law requirements. The new law also provides that local governments may not require employers to provide employees “additional pay based on schedule changes.”

Many see this new law as an employer-friendly endorsement of “on call” scheduling, by which employees are notified shortly before scheduled work time whether they must report for work. This practice allows employers to match staffing to customer needs and promotes efficiency for employers. In contrast, some other jurisdictions, such as San Francisco and Seattle, require employers to compensate employees when their shifts are changed or cancelled without sufficient notice.

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.

©2017 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.

 

 

WAGE & HOUR OPINION LETTERS RETURN!


By Christopher Adams (cda@wimlaw.com)

On June 27, 2017, the U.S. Department of Labor announced that the Wage & Hour Division would resume issuing Opinion Letters. The Obama Administration had discontinued the Department’s long-standing practice in March 2010 in favor of “general guidance,” which in practice allowed the Department greater latitude in changing its litigating position. “Reinstating opinion letters will benefit employees and employers as they provide a means by which both can develop a clearer understanding of the Fair Labor Standards Act and other statutes,” said Secretary of Labor Alexander Acosta. “The U.S. Department of Labor is committed to helping employers and employees clearly understand their labor responsibilities so employers can concentrate on doing what they do best: growing their businesses and creating jobs.” The Department’s announcement today can be found here – https://www.dol.gov/newsroom/releases/whd/whd20170627.

The Wage & Hour Division had been publishing Opinion Letters for roughly seventy (70) years prior to the Obama Administration’s suspension of the practice. Letters were issued in response to specific questions from employers regarding the statutes enforced by WHD, including the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). The purpose of Opinion Letters was to “provide official written explanations of what the FLSA or the FMLA requires in fact-specific situations.” In addition to providing guidance, Opinion Letters could, to a degree, be used to support a “good faith” defense in later litigation, relieving an errant employer from having to pay liquidated damages in the event a violation was found.

Numerous employer, industry and HR groups had called for a return of the practice. In conjunction with its announcement, DOL has created a new Web page that allows interested parties to search past Opinion Letters or submit a request: https://www.dol.gov/whd/opinion/.

We welcome the return of this traditional source of guidance, which is of great value to employers seeking to comply with these laws.

Chris Adams is a paralegal and a member of the Wage and Hour Practice Group at Wimberly, Lawson, Steckel, Schneider & Stine, P.C. He can be reached at cda@wimlaw.com.

©2017 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.


Calling ICE on an Undocumented Worker Who Has Filed an FLSA Claim May Be Unlawful Retaliation

 

By Kathleen Jennings (kjj@wimlaw.com)

An attorney in California learned that the tactic of calling ICE (Immigration and Customs Enforcement) on undocumented workers who have filed FLSA wage-hour claims against his clients (1) is unlawful retaliation under the FLSA and (2) that he can be sued for retaliation for making those calls, even though he is not the employer of those workers. That’s right—those workers can sue the attorney personally. If that doesn’t get the attention of attorneys practicing wage-hour law, I don’t know what will.

In Arias v. Raimondo (9th Cir., No. 15-16120, 6/22/17), the U.S. Court of Appeals for the Ninth Circuit held that the FLSA prohibits retaliation by “any person,” not just the employer. In this case, Jose Arias had proof that Anthony Raimondo, the attorney for Angelo Dairy, called Immigration and Customs Enforcement on at least five occasions when workers brought wage-and-hour claims against his clients. Arias also claimed that Raimondo used the tactic to force Arias into settling his wage-and-hour case against Angelo Dairy. So Arias sued Raimando for retaliation. Raimando claimed that he could not liable to Arias for retaliation because he was not his statutory employer, and the Ninth Circuit Court of Appeals disagreed. The “distinctive purpose” of the FLSA anti-retaliation provision is to allow workers to avail themselves of their rights, the court said. That purpose wouldn’t be served if it has to be the employer engaging in the retaliation, it said.

Advocates for workers see this as an added layer of protection from retaliation for undocumented who challenge employer wage-hour policies under the FLSA.

What does this decision mean for employers? Making threats of deportation to undocumented workers who have filed FLSA claims is not a lawful bargaining tactic when trying to resolve claims or lawsuits. Moreover, an employer cannot use others, such as its attorney, to do indirectly what it cannot do directly, at least in the states encompassed by the Ninth Circuit (California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, Washington).

Pro tip: Undocumented workers who work in the United States are entitled to protection under federal wage/hour and federal anti-discrimination laws, which means that their undocumented status is generally not a defense to liability under those statutes (although it may affect the measure of damages available).

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.

©2017 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.

 

Happy 50th Birthday, ADEA!

By Kathleen Jennings (kjj@wimlaw.com)

This year, the Age Discrimination in Employment Act (ADEA) turns 50 years old. To mark this milestone, the EEOC held a public meeting on Tuesday entitled “The ADEA @ 50 – More Relevant Than Ever.” At the meeting, several experts addressed the issue of age discrimination in employment from different perspectives.

Laurie McCann, a senior attorney for AARP Foundation Litigation, cited hiring discrimination and mandatory retirement as persistent problems that older workers face across industries. She called on the EEOC to strengthen ADEA protections and enforcement. “The ADEA should not be treated as a second-class civil rights statute. On this 50th Anniversary of the ADEA, AARP urges the EEOC to take bolder action to ensure older workers are treated fairly at work…” McCann told the Commission.

Sara Czaja, director of the Center for Research and Education on Aging and Technology Enhancement (CREATE), explained that research refutes assumptions that older workers are less productive, technophobic or inflexible. Czaja discussed practical ways employers could do a better job of integrating older workers into the workforce by recognizing their value and by matching their skills and abilities with work environments. “Unfortunately, numerous negative stereotypes about older workers still exist that often prevent or have a negative impact on employment opportunities for older people. These stereotypes can also prevent organizations from realizing the wealth of positive assets, such as wisdom, experience, and reliability that older workers can bring to the table,” said Czaja.

Nearly two-thirds of workers age 55-64 report their age as a barrier to getting a job, as reported by a 2017 AARP survey. A comprehensive study in 2015 using resumes for workers at various ages found significant discrimination in hiring for female applicants and the oldest applicants, according to a co-author of the research, Patrick Button, Assistant Professor of Economics at Tulane University and a researcher with the National Bureau of Economic Research Disability Research Center (NBER).

Reality check: In 2000, 23 percent of the U.S. population was in the 45-84 age group. By 2010, this portion will rise to 37.2 percent, and by 2020 it will hit 39 percent, according to the U.S. Census Bureau. A survey from Pew Research found that 70 percent of today’s workers expect to work after retirement. In other words, the number of workers who are protected by the ADEA is increasing.

And don’t forget—it is not only workers who are getting older—jury pools are getting older also. Age discrimination trials present a special challenge because most everyone knows how it feels to get older, or has close relatives or friends who are older, which means jury members are more likely to be sympathetic to age discrimination plaintiffs.

The Takeaway: Employers can prevent age discrimination claims (or minimize liability when the inevitable hard-headed plaintiff pursues a meritless claim) in the same ways that it can prevent other discrimination claims:

  • Be consistent and as objective as possible in discipline and evaluating employee performance
  • Train supervisors and managers to avoid stereotyping employees on the basis of age (or any other protected characteristic)
  • Don’t ignore performance or discipline issues just because an employee has worked at the company “forever;” address them when they occur, just as the company should do with all employees.
  • Monitor interview questions to ensure that none of them are intended to screen out older workers (or other protected class workers).

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.

©2017 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.

 

This is What Happens When You Can’t Keep Your Story Straight

By Kathleen Jennings (kjj@wimlaw.com)

I’ve said it before, and I will say it again: when an employer makes a decision to terminate an employee, the decisionmaker(s) had better be able to articulate all of the reasons for the termination decision from the date of that decision forward. When a decisionmaker articulates different or conflicting reasons for a termination decision, if that decision ends up in litigation, that inconsistency is going to result in a jury trial.

A recent example comes to us from Pennsylvania and involves Fedex. Last week, a federal court in Pennsylvania denied Fedex’s motion for summary judgment in an age discrimination case brought by a 45-year-old sales executive, Justine Larison, who was fired by FedEx and replaced with a 38-year-old. (Larison v. Fedex Corp. Servs., Inc., 2017 BL 196229, E.D. Pa., No. 16-5921, 6/9/17). The evidence showed that two younger sales executives—ages 34 and 31—did worse than Larison on the sales metric used to justify Larison’s discharge, but they weren’t terminated. Their common supervisor testified that she expected more of Larison because she’d been in the position eight years versus their two years and one year, respectively.

But then the 34-year-old supervisor also testified that the “entire sales team” was held to the same standard, regardless of experience. There’s the inconsistency. Because of this inconsistency, the district court decided that a jury should review whether Larison was held to a higher standard because of her age.

Note also that that the gap in age between Larison and her replacement was only 7 years. The Court found that the gap in age between a discharged worker and her replacement doesn’t need to be overly lengthy—even as short as 5 years– to support a claim under the Age Discrimination in Employment Act.

Pro tip: Be thorough in identifying the reasons for an employment decision before the decision is communicated to the employee. If there is any concern about whether the decision could result in litigation, have qualified counsel review the decision and the reasons for it. Document those reasons. Be consistent in communicating those reasons to the employee and afterwards.

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.

©2017 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.

 

Have You Audited Your Pay Practices Lately?

By Kathleen Jennings (kjj@wimlaw.com)

A Maryland county learned the hard way that attacking wage discrimination based on sex, race, and other protected characteristics is an EEOC enforcement priority. Last week, Prince George’s County, Maryland entered into a Consent Decree with the EEOC and agreed to pay $145,402 in lost wages, damages, and costs to settle an EEOC lawsuit for a female engineer who was paid thousands less per year than male employees doing substantially the same job. (EEOC v. Prince George’s Cnty., D. Md., No. 15-2942, consent decree entered 6/1/17). In addition, the County agreed to hire a consultant to ensure future wage parity between female and male employees who perform substantially similar work in the county’s Department of Environment, provide equal employment opportunity training for its managers and supervisors, file periodic reports with the EEOC, and post workplace notices about the settlement. The county also increased the female engineer’s annual salary from $82,294 to $107,017 to align her pay with her male counterparts.

The EEOC’s lawsuit alleged, among other things, that the County paid the female engineer less than male colleagues even though she did equal, and in some cases, more complex and superior work. In March, the Court ruled that the EEOC proved the county was liable under the Equal Pay Act by paying the female engineer a lower salary than male engineers performing substantially equal work. The EEOC and the county settled to avoid “the time and expense of continued litigation,” according to the Consent Decree.

Pro Tip: Have you audited your pay practices lately? Employers should regularly review their pay practices to make sure that they are not engaging in discrimination. If any differentials do exist, employers should make sure that they are based on legitimate and nondiscriminatory factors and supported by written documentation, and if they are not, they should correct them promptly. By doing so, employers may dramatically reduce the chance that they will be faced with a claim for wage discrimination.

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.

©2017 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.