The DOL has asked for its appeal of the district court’s injunction of the DOL overtime rule to be heard on an expedited basis. The proposed briefing schedule would require all briefing to be completed by February 7, 2017. The DOL requested that the Fifth Circuit rule on its request to expedite by December 8, 2016.
This does not change the uncertainty faced by employers. However, if the motion to expedite is granted, it will speed up the resolution of the dispute.
Yesterday, the same day the new overtime rule was to go into effect, the DOL filed a notice of appeal challenging the Texas federal court’s decision to put a hold on the new overtime rule. The appeal will be heard by the Fifth Circuit Court of Appeals in New Orleans. The timing of the appeals process will depend upon whether the DOL seeks expedited review, and the immediate impact on employers will depend, in part, upon whether the DOL obtains a stay of the injunction (which would mean the new overtime rule would go into effect during the pendency of the appeal).
Here is the DOL’s announcement: https://www.dol.gov/whd/overtime/final2016/litigation.htm
Last week, we posted about the injunction that stops the DOL’s new overtime rule from going into effect on December 1, 2016. In Judge Mazzant’s decision, he found the significant increase to the salary level (without changing the duties tests) “creates essentially a de facto salary test… [and that] Congress did not intend salary to categorically exclude an employee with [Executive, Administrative, Professional] duties from the exemption.” Basically, since the FLSA exemptions depend on BOTH the duties employees perform and on the salary they receive, the Court found the DOL exceeded its authority under the FLSA by basing the rule solely on a change to the salary level.
There is no clear answer on what employers who have already reclassified employees from exempt to non-exempt should do following the decision. In fact, the only consistent answer seems to be that employers are in limbo and should be careful about making further changes until the issue is resolved by the courts, by some kind of legislative compromise, or some executive action.
We will continue to update the blog on this issue.
Yesterday, the Texas Federal Court issued a preliminary injunction blocking the DOL’s new overtime rule from going into effect on December 1, 2016. Because this is only a preliminary ruling, and because of the change in the administration, it is unclear what will ultimately happen with the DOL overtime rule. The DOL is considering an appeal, and there is speculation in the media that parts of the new rule will survive. Until the future of the rule is resolved, employers who have already increased employee salaries to meet the new rule’s requirements, or reclassified exempt employees as non-exempt, should not reverse these changes. However, employers who were waiting until December 1st to take action, are now in limbo and should follow existing rules regarding criteria for exemptions until further developments in the case.
We will keep the blog updated on developments.
There has been a fair amount of discussion on the intersection of employer wellness program rules and the ADA and the Genetic Information Nondiscrimination Act (GINA). An employer “wellness program” refers to health promotion or disease prevention programs and activities offered to employees either as part of a health insurance plan or as an employee benefit. Often, the programs require employees to answer questions about their health and family health history, or undergo medical screening (e.g., blood pressure/cholesterol tests). Since both the ADA and GINA include prohibitions on employer questions on these topics and medical exams for employees, the EEOC has been pro-active in providing guidance. The webinar discussing the final rules on employer wellness programs is here: https://www.eeoc.gov/eeoc/events/webcast-wellness.cfm
Beginning in January 2017, Oregon employers are required to provide employees with an itemized written statement (a time and pay statement) setting out the following on each regular payday: (A) The date of the payment; (B) The dates of work covered by the payment; (C) The name of the employee; (D) The name and business registry number or business identification number; (E) The address and telephone number of the employer;(F) The rate or rates of pay; (G) Whether the employee is paid by the hour, shift, day or week or on a salary, piece or commission basis; (H) Gross wages; (I) Net wages; (J) The amount and purpose of each deduction made during the respective period of service that the payment covers; (K) Allowances, if any, claimed as part of minimum wage.
For non-exempt employees, the time and pay statement must also show the regular hourly rate or rates of pay, the overtime rate or rates of pay, the number of regular hours worked and pay for those hours, and the number of overtime hours worked and pay for those hours. For employees paid on a piece rate, the statement must include the applicable piece rate or rates of pay, the number of pieces completed at each piece rate and the total pay for each rate.
Statements can be delivered electronically, provided employees agree and provided employees have the ability to print or save their pay statements. In addition, just like with personnel records, employers must provide employees with a copy of time and pay records within 45 days after a request from an employee for such records.
The new law amends ORS 652.610. The text can be found here: https://olis.leg.state.or.us/liz/2016R1/Downloads/MeasureDocument/SB1587/Enrolled
Earlier this year, the Oregon legislature passed Senate Bill 1532 which established a series of annual minimum wage increases that began on July 1, 2016. The next increase is not until July 2017. A table showing increases for July 2017 by applicable region is here: http://www.oregon.gov/boli/WHD/OMW/Pages/Minimum-Wage-Rate-Summary.aspx
Minimum wage in Washington State will increase to $9.53 an hour on January 1, 2017. http://lni.wa.gov/News/2016/pr160928a.asp
Yesterday, Congress voted to delay the start date for compliance with the DOL’s new overtime rule. As we posted earlier this week, the legislation proposes a six month delay, but does not propose substantive changes to the rule. According to Reuters, the vote was 246 to 177, with 5 Democrats joining 241 Republicans in voting for the legislation. The White House has indicated that President Obama will veto the legislation.
We will continue to track developments.