House Votes to Delay DOL Overtime Rule

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.

http://www.reuters.com/article/usa-employment-overtime-idUSL2N1C506T

 

 

 

Congressional Subcommittee Seeks to Block New DOL Overtime Rule

The House Subcommittee on Workforce Protections has introduced a bill which would delay the effective date for the DOL’s new overtime rule from December 1, 2016 to June 1, 2017. The Regulatory Relief for Small Businesses, Schools, and Nonprofits Act (H.R. 6094), is sponsored almost entirely by Republicans and does not propose material changes to the DOL overtime rule or challenge the substantive provisions of the rule.  Instead, it solely seeks to delay the effective date of the new rule by six months.  We will continue to monitor H.R. 6094’s progress.  In the interim, more information about H.R. 6094 can be found here: https://www.congress.gov/bill/114th-congress/house-bill/6094

21 States Challenge DOL Overtime Rule

As businesses gear up to comply with the new DOL rule for exempt administrative and executive employees, a group of officials from 21 States have filed a legal challenge to the constitutionality of the new rule.  The lawsuit, filed in the Eastern District of Texas, challenges the increased salary requirements and the automatic future salary increases that are included in the rule, in large part because of the burden the higher salary requirements place on State government budgets.  The plaintiff states are: Nevada; Texas; Alabama; Arizona; Arkansas; Georgia; Indiana; Kansas; Louisiana; Nebraska; Ohio; Oklahoma; South Carolina; Utah; Wisconsin; Kentucky, Iowa; Maine; New Mexico; Mississippi; Michigan.

The lawsuit does not mean that private employers should stop current efforts to analyze salaried exempt positions, and potentially reclassify exempt employees as non-exempt based on the new rule.  It does, however, confirm that this area of the law is in flux (and may continue to be for some time).

The Complaint is here: https://www.texasattorneygeneral.gov/files/epress/Complaint_-_Filed.pdf?cachebuster%3A0=&utm_content=&utm_name=&utm_term

Clarification of Oregon Sick Leave Rules

BOLI has set September 26, 2016 as the last day for public comment on clarification of the Administrative Rules for Oregon’s paid sick leave law.  According to BOLI, the proposed clarifications: “Add ‘employee’ definitions. Clarify ‘regular rate of pay’ in definitions. Update jointly employed employees rule. New rule explaining restoration of sick time. Clarify employer obligations if applying undue hardship provision in law. Update all division 7 rules to reflect statutory references.  Other rule changes as needed to provide clarification.”

The proposed amended rules are here: http://www.oregon.gov/boli/Legal/docs/839-007-Proposed%20Sick%20Time%20Rules.pdf

We will update the blog once the final amended rule is issued.

Talking about Dress Code Violation = Concerted Activity

A recent NLRB Board Decision is a reminder to employers that employees have a legal right to seek support from co-workers regarding workplace concerns. The case involved an employee who was disciplined (in her opinion unfairly) for violations of the employer’s dress code.  The employee approached a co-worker to ask his advice about how to respond to the discipline. Shortly thereafter, the co-worker told HR about his conversation and complained that the employee was disrupting his work.  HR then terminated the employee.

The Board found that the employee was discharged in violation of the NLRA because she was engaged in concerted activity when talking to her co-worker and that the employee’s discussion was for the purpose of mutual aid or protection because the employee was seeking a coworker’s advice on the best way to the address the employer’s discriminatory and arbitrary application of its dress code – a policy applicable to all employees.  The fact that the co-worker did not share her concerns (and later complained about the conversation to management) was not dispositive.

The Decision is here:  https://www.nlrb.gov/case/25-CA-132398

Genius Bar Rejects 50+ Genius

Age discrimination is alive and well, as evidenced by this story about a 54 year old retired software engineer who worked at Apple for more than 20 years but was rejected when he applied to work at the Apple Genius Bar.

http://www.oregonlive.com/living/index.ssf/2016/09/how_common_is_age_discriminati.html

More interesting statistics and stories about age discrimination from a recent NY Times article are here:  http://www.nytimes.com/2016/09/04/opinion/sunday/youre-how-old-well-be-in-touch.html?_r=0

 

EEOC Guidance on Retaliation

The EEOC has issued its final Enforcement Guidance on Retaliation and Related issues.  This document replaces and updates a Compliance Manual from 1998.  Also available is a Q&A publication and a Small Business Fact Sheet (links are embedded in the press release below).

The EEOC’s press release is here: https://www.eeoc.gov/eeoc/newsroom/release/8-29-16.cfm

Full text of guidance is here: https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm

New BOLI Rules for Calculating Payment of Minimum Wage

The first annual increase to Oregon’s minimum wage takes effect on Friday, July 1, 2016.  The rate of increases varies depending on geographic location.  The minimum wage in non-urban counties will increase to $9.50 per hour, while the minimum wage in the rest of the state increases to $9.75 per hour.

The Bureau of Labor and Industries (BOLI) recently issued administrative rules to guide employers on how to calculate wages of individuals who work in more than one geographic region in a given pay period.  http://www.oregon.gov/boli/Legal/docs/2016-MW/839-020_Final_Rule_Showing_Amendments.pdf

  1. Work performed at a permanent fixed business location. If an employee performs more than 50% of his or her work in a pay period at a fixed business location in Oregon, the minimum wage rate for the region where that business is located applies to all hours worked during that pay period.
  2. Delivery workers who begin and end at a fixed business location. If a delivery worker begins and ends his or her work at the employer’s fixed business location, he or she is paid the prevailing minimum wage rate for that location regardless of whether the employee makes deliveries to other geographic regions.
  3. Work performed other than at a fixed business location.  If an employee works in multiple geographic regions during a pay period and does not perform more than 50% of his or her work in a fixed business location, then the employer may (a) track (and maintain record of) the hours worked in each geographic region and pay the applicable minimum wage for each hour worked in each region, or (b) pay the highest applicable minimum wage rate for all hours worked during that pay period.

 

EEOC Issues Sample Notice for Employer Wellness Programs

There has been a lot of talk about how employers can run afoul of the ADA when collecting employee health information in connection with employer wellness programs.  Today, the EEOC issued a sample notice that: “will help employers who have wellness programs comply with their obligations under a recently issued Americans with Disabilities Act (ADA) rule.”  As explained by the EEOC, the recently issued ADA rule requires: “employers who offer wellness programs that collect employee health information to provide a notice to employees informing them what information will be collected, how it will be used, who will receive it, and what will be done to keep it confidential.”

The sample notice is here:

https://www.eeoc.gov/laws/regulations/ada-wellness-notice.cfm

FAQs about use of the notice are here: https://www.eeoc.gov/laws/regulations/qanda-ada-wellness-notice.cfm

The EEOC press release is here: https://www.eeoc.gov/eeoc/newsroom/release/6-16-16.cfm