DOL Proposed OT Rule – FLSA Exemption Salary Threshold Increases to $35K

After a long wait, the US Department of Labor yesterday issued its proposed overtime rule raising the salary basis threshold for exempt employees from $23,660 to $35,308 per year or to $679 per week.  Employers with employees classified as exempt under the Fair Labor Standards Act’s (FLSA) “white collar” exemptions should take note.

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Four Takeaways from an Unusual Sexual Harassment Case

In a recent column for Corporate Compliance Insights, LeClairRyan attorney Thomas C. Regan discusses litigation revolving around allegations that a supervisor failed to properly respond to sexual harassment of an employee by a non-employee. Tom provides insight to help employers understand their potential liability and avoid getting ensnared in similar situations:

“The #MeToo movement has hammered home for employers the critical importance of keeping sexual harassment out of the workplace. However, a recent federal court case underscores how sexual harassment can occur in ways that defy what many employers might think of as the typical pattern. The ruling by the U.S. District Court for the Eastern District of Pennsylvania comes in a case that has nothing to do with a male boss or co-worker behaving inappropriately with a female colleague. It hinges instead on allegations that a supervisor failed to properly respond to sexual harassment of an employee by a non-employee. 

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EEO-1 Reports Now Due May 31

Employers now have two additional months to file their EEO-1 report. As a result of the federal government shut down, the U.S. Equal Employment Opportunity Commission (EEOC) has extended the deadline.  Employers must file EEO-1 forms for 2018 by May 31, 2019 rather than the usual March 31 due date.

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Pay Equity Webinar Now Available

Our 12/11 webinar, Pay Equity: What’s in Your Payroll?, is now available in archived form here.

Thank you to those who joined us yesterday — we look forward to offering more soon.

DOL Issues New Guidance for Hospitality Employers on Tipped Employees

Earlier this month, the U.S. Department of Labor (“DOL”) issued Opinion Letter FLSA2018-27 providing updated guidance to employers on how to pay tipped employees.  The new Opinion Letter abandoned the previous 80/20 tip credit rule. The DOL’s new guidance provides no limit on the amount of time a tipped employee spends on related non-tip-producing duties so long as such duties are “performed contemporaneously with the duties involving direct service to customers or for a reasonable time immediately before or after performing such direct-service duties.”

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Upcoming Webinar – Pay Equity for Employers: What’s in Your Payroll?

Pay equity is one of the hottest topics for employers today. It’s not just about current wages, but hiring inquiries, benefits, and other actions that can create liability for your organization.

Pay practices require diligence from HR staff down to the hiring supervisor; and how your organization is embracing equal pay may be a critical component whenever a claim arises.

Join the attorneys of LeClairRyan for this complimentary one-hour webinar as we dive into federal and state legislation and keys to compliance in your operations.

On the agenda, we will discuss:

– Compensation
– Discrepancies in pay
– How complaints are filed
– Pay factors
– What can trigger a claim

And a closer look at the state law in California, New York, New Jersey and Massachusetts.

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Is Religious Freedom on a Collision Course with Newly Gained Civil Rights?

Since the United States Supreme Court issued Obergefell in 2015, there have been dark predictions that religious freedom and other, more recently gained, civil rights protections are on a collision course. Recent developments might cause this course to run through the employment arena. In August, the Office of Federal Contract Compliance Programs (“OFCCP”) issued a directive to “incorporate recent developments in the law regarding religion-exercising organizations and individuals.” Specifically, the Directive aims to update federal policy to align it with recent Executive Orders and Supreme Court decisions.

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Webinar: Mandatory Harassment Training: What Employers Need to Know

Please join us on October 3, 2017 1:00 pm (10:00 am, Pacific Daylight Time) for a webinar to discuss this growing trend and to ensure that your practices and policies are compliant.

Avoiding harassment claims continues to be one of the most significant issues facing employers.  While many savvy employers are proactive in training their employees to act in a way that minimizes the risk of having a harassment complaint filed, a growing number of states (and some cities) have begun to pass laws mandating training.  California, Maine and Connecticut have led the way with Delaware and New York (and New York City) ready to join the ranks of the states/cities imposing their own various training requirements on employers.  More are sure to follow.

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NLRB Announces Intent to Change Joint-Employer Test

On Thursday, September 13, 2018, the National Labor Relations Board (NLRB) announced its intent to change the standard to determine joint-employment. In a September 13, 2018, news release, the Board stated that it will publish a proposed rule clarifying and restricting the standard to determine when two entities are considered a single “joint-employer” over a group of employees.  The proposed changes would limit joint-employment to employers that possess and exercise “substantial, direct and immediate control over the essential terms and conditions of employment” of another employer’s employees.  The proposed changes would also require that an employer must have exercised its control over the group of employees in more than a “limited and routine” manner.

The current standard was provided in the Board’s decision on Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (2015).  The Browning-Ferris standard broadened the joint-employer standard to include employers that possess the right to control another entity’s employees regardless of whether the employer exercised that control.  Under the proposed new standard, “indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship.”

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New Noncompete Agreement Law in Massachusetts

Introduction

On July 31, 2018, after years of debate and attempts at compromise, the Massachusetts legislature finally passed a bill that will fundamentally alter the use of noncompete agreements in the Commonwealth.  The bill was signed by Governor Baker on August 10, 2018, and the law will go into effect on October 1, 2018.  The new law will apply only to agreements that are signed on or after October 1, 2018.

The law does not prohibit the use of noncompete agreements altogether, but it does create specific standards regarding the enforceability of such agreements.

Coverage

The new law applies to employees who work or reside in Massachusetts.  A choice of law clause providing that the law of some other jurisdiction will apply will not be effective with regard to employees who have worked or lived in Massachusetts for at least 30 days prior to termination.  The law includes independent contractors within the definition of “employee” and noncompete agreements with contractors are therefore covered.  As an aside, entities engaging independent contractors should ensure that they satisfy the stringent requirements of the Massachusetts Independent Contractor law.  (M.G.L. c. 149 § 148B.)

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