Category: Labor & Employment

Workers Should Properly be Classified as Employees Under the FLSA

U.S. Department of Labor (“DOL”) yesterday issued an Administrator Interpretation Memorandum announcing its position that most American workers are employees (as opposed to independent contractors), and thus are covered by the Fair Labor Standards Act (FLSA). The announcement comes exactly two weeks after the DOL issued a Notice of Proposed Rulemaking that would significantly change the legal requirements for an employee to qualify as exempt from the overtime requirements of the FLSA.

Department of LaborAccording to the Memo, employers are intentionally misclassifying workers as independent contractors to cut costs and avoid compliance with various laws, which deprives workers of certain benefits of employment. Taken together, the two recent DOL actions make the DOL’s true intentions abundantly clear: to sweep more American workers under the umbrella of the FLSA, and in turn, have more of those covered employees earning overtime compensation (or significantly higher salaries).

In the Memorandum, the DOL sets forth its interpretation of the FLSA’s definition of “employ” and the multi-factored “economic realities test” utilized by the courts to guide the analysis of whether a worker is properly classified as an independent contractor under the law. According to the DOL, applying the economic realities test in view of the FLSA’s expansive definition of “employ” will result in most workers being employees, and not independent contractors. In other words, a worker is an employee unless a convincing argument can be made that the worker is properly classified as an independent contractor.

While the “economic realities test” might vary somewhat depending on the court applying the test, the traditional questions considered are:

  • Is the work done by the worker an integral part of the employer’s business?;
  • Does the worker’s managerial skill affect the worker’s opportunity for profit or loss?;
  • How does the worker’s relative investment compare to the employer’s investment?;
  • Does the work performed require special skill and initiative?;
  • Is the relationship between the worker and the employer permanent or indefinite?; and
  • What is the nature and degree of the employer’s control over the worker?

These questions should be considered under the guiding principle that workers who are economically dependent on the employer are employees, and only workers who are really in business for themselves are independent contractors. All factors must be considered in each case, no one factor is determinative, and the ultimate determination must be the degree of the worker’s economic independence from the employer.

ARTICLE BY Jeremy M. Brenner, John P. Hasman, Robert A. Kaiser, Daniel K. O’Toole, Jovita M. Foster & Dione C. Greene of Armstrong Teasdale

© Copyright 2015 Armstrong Teasdale LLP. All rights reserved

The Supreme Court Rules in Favor of Same-Sex Marriage: Employer Next Steps

What should employers be thinking about in the benefits arena now that the US Supreme Court has ruled in Obergefell v. Hodges that all states must issue marriage licenses to same-sex couples and fully recognize same-sex marriages lawfully performed out of state?

We suggest that employers consider whether the following plan design changes, health plan amendments, and/or administrative modifications are necessary:

  • Review employee benefit plans’ definition of “spouse” and consider whether the Court’s decision will affect the application of the definition (e.g., if the plan refers to “spouse” by reference to state laws affected or superseded by the Obergefell decision). Qualified pension and 401(k) plans generally conformed their definitions of spouse to include same-sex spouses post-Windsor to comply with Internal Revenue Code provisions that protect spousal rights in such plans, but health and welfare plans may not have been so conformed.

  • Communicate any changes in the definition of spouse or eligibility for benefits to employees and beneficiaries, as applicable.

  • Update plan administration and tax reporting to ensure that employees are not treated as receiving imputed income under state tax law for any same-sex spouses who are covered by their employer-sponsored health and welfare plans (to the extent that coverage for opposite-sex spouses would otherwise be excluded from income).

  • If an employer currently covers unmarried domestic partners under its benefit plans, it may want to consider whether to eliminate coverage for such domestic partners on a prospective basis (and therefore only allow legally recognized spouses to have coverage). Employers that make that type of change also will need to determine the timing and communication of such a change.

  • Employers with benefit plans that treat same-sex spouses differently than opposite-sex spouses should consider whether to maintain that distinction. Even though nothing in Obergefell expressly compels employers to provide the same benefits to same-sex and opposite-sex spouses, and self-insured Employee Retirement Income Security Act (ERISA) health and welfare plans are not subject to state and municipal sexual orientation discrimination prohibitions, we believe these types of plan designs are likely to be challenged.

ARTICLE BY Andy R. Anderson & Lindsay M. Goodman of Morgan, Lewis & Bockius LLP

Copyright © 2015 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

Employer Next Steps Post-Affordable Care Act Ruling

What should employers be thinking about now that the US Supreme Court has upheld the Affordable Care Act’s (ACA’s) premium assistance structure in King v. Burwell? Because the ACA, as we know it today, will remain in place for the foreseeable future, employers should continue to plan for and react to the numerous and detailed ACA requirements, including the following:

  • Determining their ACA full-time employee population—including whether contingent workers or independent contractors may be deemed to be common-law employees for ACA purposes.

  • Analyzing whether all ACA full-time employees and their dependents are being offered affordable ACA-compliant coverage at the right time.

  • Preparing for the exceedingly complicated 2015 ACA employer Shared Responsibility and individual mandate reporting due in early 2016 on Forms 1095-B and 1095-C and the associated transmittal forms.

  • Capturing ACA health plan design changes in plan documents, summary plan descriptions, open enrollment material, and required notices to respond to participant needs, lawsuits, and growing federal agency audits.

  • Paying the Patient-Centered Outcomes Research Institute fee in July.

  • Conducting the necessary plan design analysis and preparing for any changes necessary to avoid the Cadillac Tax in 2018.

ARTICLE BY Andy R. Anderson & Kimberly J. Boggs of Morgan, Lewis & Bockius LLP

Copyright © 2015 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

Do’s and Don’ts of Documentation – Employment Litigation

As many of you know, proper documentation is critical in almost every aspect of managing your employees. Documentation is often the difference between a defense verdict and a multi-million dollar jury award. But don’t just document to document – poor documentation is worse than no documentation at all. Instead, document with purpose. Here are my top five do’s and don’ts of documentation.

The Do’s

1. Do Establish Clear Performance Expectations. I like to start out formal documentation with a clear statement of what the employer’s performance expectations are for the employee. This statement of the performance expectations will guide every aspect of the documentation and set the standards upon which current deficiencies are noted and future performance will be measured. It should be obvious, but make sure an employee is not hearing these performance expectancies for the first time in formal documentation of a performance problem. If that is the case, you have bigger problems than poor documentation. Instead, the performance expectancies need to be consistent with the employee’s job description and the tasks actually assigned to the employee. Consistent, clear and well-written performance expectations are critical if you want an employee to succeed in changing his performance.

2. Do Focus on the Facts. Provide the employee with a clear statement of the facts. A clear statement of the facts focuses solely on what you know happened, and does not include any speculation or unverified information. For the purpose of a disciplinary action, the fact that an employee reported to work two hours late is sufficient. You do not need to include the speculation that the employee had been out drinking the night before because he has a weekly poker game at the local watering hole. Stick to the facts because this might have been the one night the employee missed the poker game to care for his sick child.

3. Do Review Patterns of Problem Behavior. When an employer takes the time to actually perform written documentation of a performance or behavior problem, it typically is not the first time the employee has had the problem. Instead of ignoring all of the previous instances, list in detail every occasion when the employee has exhibited the problem behavior. Be sure to include what steps were taken each time these problems came to light – did the supervisor talk to the employee, was the employee reprimanded (formally or informally), was the employee warned or suspended. Include the pattern to show that you considered these previous instances when taking the current action.

4. Do Write a Specific Plan. Include in your documentation a specific plan for the employee to improve. List out the criteria the employee must meet, and a time frame for meeting each expectancy. The more specific and objective the criteria, the easier it is to measure improvement. Be sure to include in your documentation that failure to meet the criteria will result in further disciplinary action, up to and including termination. 

5. Do Follow-up. Documentation is only valuable if you follow-up. For example, if you place an employee on a formal 6-month corrective action plan, but never follow-up, the corrective action plan is void. The best practice is to have specific criteria with specific time frames, and have a formal review during those exact timeframes. Don’t delay!

The Don’ts 

1. Don’t Generalize. The most difficult cases to defend are those in which the employee is terminated for “not being a team player” or any other trendy cliché. Such generalizations have no place in formal documentation. You must provide specific examples of problematic behavior. Fail to do so, and you may “be left holding the bag.” 

2. Don’t Diagnose Why the Employee Is Performing Poorly. New lawyers are taught to focus on the what, when, where, and why when asking a witness questions. When documenting poor performance, don’t diagnose the “why.” Even if you suspect the employee’s divorce, financial situation or social life is affecting his performance, avoid the urge to put such a diagnosis in the formal documentation. Understand that it is entirely proper to offer employee assistance or other benefits to employees that have personal problems, but it is not appropriate to include such personal problems in formal documentation.

3. Don’t Include Your Mental Impressions and Editorial Comments. A common mistake made by inexperienced supervisors is to include their mental impressions in the performance documentation. What do I mean?  Say an employee is written up for failure to follow supervisor’s instructions. Instead of simply stating exactly what the supervisor told the employee, the supervisor will state something like “I thought my directions were clear.”  If you have to editorialize what was said, it probably was not as clear as you thought. State the facts, and avoid commenting on those facts. 

4. Don’t Embellish, Stretch the Truth or Call It Something It is Not. There is nothing worse than documentation where an employer overstates what took place. Minor embellishments tend to take on a life of their own, often becoming the driving force behind the disciplinary action when the truth was sufficient. Now you are left defending a lie. Worse yet, don’t call “dishonesty” a “fraud” and don’t accuse an employee of “stealing” when they made a mistake. Call it as you see it and nothing more.

5. Don’t Apologize. I cringe reading a disciplinary document where a supervisor says, “I am sorry I have to do this.” No, you’re not! You are doing your job, and you are doing the documentation because the employee is not doing their job. If you have to apologize for something, then formal documentation is obviously not warranted.

Practical Take Away

Documentation is an important aspect of managing relationships with your employees.  You will be much better served by shifting your approach to documentation from quantity to quality. Trust me, you would much rather defend one or two well-written documents than twenty-five poorly written ones. So, go forward and document with purpose.

ARTICLE BY Jason S. Ritchie of Holland & Hart LLP

Copyright Holland & Hart LLP 1995-2015.

Sunlight is the best disinfectant: SEC charges oil company for fraud on EB-5 investors

In a recent action, SEC v. Luca International Group, LLC et al. (“SEC v. Luca“), the Securities and Exchange Commission (SEC) has charged a California-based oil and gas company and its CEO with violations of securities laws in connection with a $68 million Ponzi scheme and affinity fraud. The target of the fraud was the Chinese American community. Additionally, a portion of the funds raised by the defendants came from EB-5 investors seeking green cards through the EB-5 Program. The SEC issued both a press release and cease and desist order this week in connection with this most recent action. We think that this case highlights two important and relevant points for our readership, and that the SEC exposing the defendant schemers/fraudsters in SEC v. Luca is good for the EB-5 industry and integrity of the EB-5 program.

Prosecution efforts are going global– government agencies in Hong Kong and China assisted the SEC’s efforts 

Now more than ever before, the SEC is on the path to closing down actors in the EB-5 context that engage in deception and fraud. We are in a new era of enforcement, with the SEC becoming more familiar with the EB-5 Program. We think that this enforcement trend will move at an even faster clip as the SEC and United States Citizenship and Immigration Services (USCIS) become more agile in cooperating and responding to credible allegations of fraud.

EB-5 regional centers and issuers need to put into place sound and workable policies to ensure that marketing practices are in line with securities laws. Note that in SEC v. Luca, there was cooperation with the SEC and two foreign agencies, namely the Hong Kong Securities and Futures Commission and the China Securities and Regulatory Commission. Enforcement and prosecution efforts in this context are going global. Regional centers and issuers should ensure that any offshore sales efforts are in compliance with the laws of the countries in which sales activities are performed.

Overlooked federal and state investment adviser registration requirements  

SEC v. Luca is a reminder that investment adviser requirements may apply broadly in EB-5 transactions and require federal or state registration by regional centers, issuers and/or EB-5 deal facilitators. In SEC v. Luca, the SEC asserted that the defendants acted as “investment advisers” within the meaning of Section 202(a)(11) of the U.S. Investment Advisers Act of 1940 (“Advisors Act”) [15 U.S.C. Section 80(b)-2(a)(11), but had no registrations with the Commission. Confusion over investment adviser registration requirements is a commonplace problem in the EB-5 space. In SEC v. Luca, the defendants were in the business of providing investment advice concerning securities for compensation. According to the SEC, these key facts triggered registration requirements under the Advisers Act.

We will soon be providing an extensive alert with regulatory advice to EB-5 regional centers and issuers on the applicability of both federal and state investment adviser registration requirements. The applicability of such requirements should be made on a case-by-case with qualified securities counsel. There is no “one size fits all” advice. States have their own considerations in interpreting investment adviser registration requirements. And the SEC has its own interpretive guidance on the parameters of the registration requirements of the Advisers Act apply.

Conclusion

The egregious pattern of unlawful behavior by the defendants in SEC v. Luca included deceit in the marketing process, fraud in offering materials, comingling and misappropriation of funds, and violation of registration requirements. These are issues not just in the EB-5 context, but with private placements generally. Affinity fraud is also common in private placements.

EB-5 stakeholders should be aware that we are seeing a visible uptick in securities related prosecutions. No issuer, regional center or deal facilitator is immune from scrutiny. The SEC and USCIS are also working together more nimbly with foreign securities agencies. Sound policies, securities compliance and meaningful due diligence by experts are important in EB-5 offerings.

Sunlight is the best disinfectant. This adage is true for the EB-5 program. Stakeholders who promote a transparent and strong EB-5 program should applaud the SEC’s efforts.

ARTICLE BY Douglas Hauer of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
©1994-2015 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

New York City Investigation of Hiring Practices

New York City’s Commission on Human Rights is now authorized to investigate employers in the Big Apple to search for discriminatory practices during the hiring process. This authority stems from a law signed into effect by Mayor de Blasio that established an employment discrimination testing and investigation program.  The program is designed to determine if employers are using illegal bias during the employment application process.

Under this program, which is to begin by October 1, 2015, the Commission is to use a technique known as “matched pair testing” to conduct at least five investigations into the employment practices of New York City employers.  The law requires the Commission to use two “testers” whose credentials are similar in all respects but one: their protected characteristics, i.e., actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation, alienage, citizenship status, or another characteristic protected under the New York City Human Rights Law.  The testers will apply for jobs with the same employer to evaluate whether that employer is using discriminatory practices during the hiring process.

Employers may wish to notify their human resources personnel about the program and have them remind individuals who review job applications and conduct interviews to focus on job-related skills and abilities, not protected characteristics.  Job postings/advertisements should also be reviewed to ensure that they are neutral.

ARTICLE BY Laura A. Stutz of Epstein Becker & Green, P.C.

©2015 Epstein Becker & Green, P.C. All rights reserved.

EEOC Sues Wal-Mart for Disability Discrimination And Harassment: Agency Says Retailer Denied Accommodations to Disabled Cancer Survivor

Agency Says Retailer Denied Accommodations to and Harassed a Disabled Cancer Survivor

CHICAGO – Wal-Mart Stores, Inc. violated federal law by failing to provide reasonable accommodations to an employee at its Hodgkins, Ill., store who was disabled by bone cancer and failing to stop harassment of the employee, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed yesterday.

According to Julianne Bowman, the EEOC’s district director in Chicago, who managed EEOC’s pre-suit administrative investigation, the Walmart store initially agreed to comply with employee Nancy Stack’s request that the company provide a chair in her work area in the fitting room and limit her scheduled work hours because treatment for bone cancer in her leg limited her ability to walk and stand. After complying with her scheduling accommodation for many months, the store revoked it for no reason. And the store did not ensure that a chair was in Stack’s work area, at one point telling her that she had to haul a chair from the furniture department every day, which was of course hard for her to do given her disability. Finally, the store transferred Stack from the fitting room to a greeter position, which did not comply with her restrictions on standing.

To add insult to injury, Bowman added, a co-worker harassed Stack by calling her names like “cripple” and “chemo brain,” imitated her limp, and removed or hid the chair the employee needed in her work area. Stack complained repeatedly, but the store took no action to stop the co-worker’s harassment.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination on the basis of disability, which can include denying reasonable accommodations to disabled employees and subjecting disabled employees to a hostile work environment.

The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process. The case, EEOC v. Wal-Mart Stores, Inc., Civil Action No. 15-5796, was filed in U.S. District Court for the Northern District of Illinois, Eastern Division, and was assigned to U.S. District Judge Sharon Coleman. The government’s litigation effort will be led by Trial Attorney Ann Henry and supervised by EEOC Supervisory Trial Attorney Diane Smason.

“It’s hard to believe a retailer the size of Wal-Mart could not manage to consistently provide such a simple accommodation as a chair,” said John Hendrickson, the regional attorney for EEOC’s Chicago District Office. “Telling a disabled employee that she needs to drag a chair across the store every day is no accommodation at all. Employers have to provide reasonable accommodations unless doing so would be an undue hardship. EEOC is aware of no hardship that required Wal-Mart to suddenly change Stack’s schedule, deny her the use of a chair, and transfer her out of the fitting room where she had performed her job well for years.”

EEOC Trial Attorney Ann Henry commented, “No employee should have to go to work and face mocking and name calling because she had cancer. Employers who know about such vile harassment in their workplace have an obligation to stop it. Wal-Mart did not do that here, and the EEOC will seek to hold the company liable for that violation.

In July 2014, the EEOC filed a lawsuit against Wal-Mart alleging that it violated the ADA by firing an intellectually disabled employee at a Rockford Walmart store after it rescinded his workplace accommodation.

The EEOC’s Chicago District Office is responsible for processing discrimination charges, administrative enforcement and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. Further information about the EEOC is available on its website at www.eeoc.gov.

This press release originally appeared in the EEOC Newsroom. 

ARTICLE BY U.S. Equal Employment Opportunity Commission
© Copyright U.S. Equal Employment Opportunity Commission

New Overtime Rules: $970 Per Week Salary Proposed For White Collar Exemptions in 2016

The minimum weekly salary for exempt employees will be raised from the current $455 to a likely $970 in 2016, if the Department of Labor’s (DOL’s) overtime pay revisions go into effect as proposed. In its long-awaited proposed revisions to overtime rules, the DOL estimates that 4.6 million U.S. workers who are currently exempt will be entitled to minimum wage and overtime compensation under the new salary level requirements.

Salary Level Would Automatically Adjust on an Annual Basis

Under its proposed rules, the DOL sets the salary threshold for the white collar exemptions at the 40th percentile of weekly earnings for full-time salaried workers nationwide. For 2013, using data from the Bureau of Labor Statistics, that figure was $921 per week, or $47,892 per year. The DOL anticipates that when its Final Rule goes into effect in 2016, the salary level will be $970 per week, or $50,440 per year.

In order to maintain the salary levels at a fixed percentile of earnings, the DOL proposes that the salary threshold automatically update annually. The automatic adjustment is intended to prevent the salary level from diminishing through inflation and to potentially make additional rulemaking adjusting the salary basis unnecessary. The DOL believes that this will provide more certainty to employers with a meaningful, bright-line test while improving government efficiency.

Highly Compensated Employee Exemption: $122,148 Salary

The current exemption for highly compensated employees requires an annual salary of $100,000. The DOL proposes to raise that salary threshold also based on an annualized value of a percentile of weekly earnings for full-time salaried workers. This proposal sets the salary level of highly-compensated employees at the 90th percentile, which was $122,148 per year for 2013. That number will likely be higher by the time the Final Rule is implemented. This salary requirement would also adjust automatically to the level equal to the 90th percentile of earnings for full-time salaried workers.

No Proposed Changes to Duties Requirements

Since 2004, the duties tests for the white collar exemptions have not included a limit on the amount of time that an employee can spend on nonexempt duties before the exemption is lost. Believing that a rise in the salary level will provide an initial bright-line test for the exemptions, the DOL refrained from proposing changes to the duties tests but will consider requests for changes during the comment period.

In its proposal, the DOL noted that employer stakeholders opposed any changes to the duties requirements as percentage limits on the amount of time spent on nonexempt duties are sometimes difficult to apply and hinder flexibility for work duties. Employee groups, on the other hand, expressed concern that certain businesses treat workers as exempt even though the employees perform mostly nonexempt duties, especially (they claim) in the retail industry. Without proposing its own duties requirements, the DOL seeks input from interested parties on whether changes to the duties tests are necessary in light of the salary level increases proposed.

Nondiscretionary Bonuses May Be Included in Salary Level Requirement

In the past, the DOL has not included nondiscretionary bonus payments when determining whether an employee’s salary meets the white collar exemption threshold; it looked only at actual salary or fee payments made to employees. In its proposed rules, the DOL seeks input on whether it should permit some amount of nondiscretionary bonuses and incentive payments to count toward a portion of the salary level requirement for the executive, administrative and professional exemptions. The DOL states that for these bonuses or incentive payments to count toward the weekly salary requirement, the bonuses and incentive payments would need to be paid monthly or more frequently, not as a yearly “catch-up” payment.

Next Steps

If you want to submit any comments on the DOL’s proposed changes to the overtime rules, you have 60 days in which to submit your input either electronically or by mail. Instructions are at the beginning of the Notice of Proposed Rulemaking.

After considering comments from interested parties, the DOL will decide whether to make any revisions to its proposed overtime rules and will issue its Final Rule sometime thereafter. Although the final version of the rules may change slightly, you should begin preparing for the changes now.

Examine your payroll records to determine which employees are currently treated as exempt under the various white collar exemptions. Determine which, if any, would or would not meet the new salary thresholds: $50,440 per year for executive, administrative and professional exemptions and $122,148 for highly compensated employees. Review the duties tests to make sure your exempt employees are performing exempt tasks.

After this review, consider how your organization is going to handle those employees who may not qualify as exempt under the new rules. Do you want to increase their salary to meet the new threshold? Change their status to nonexempt and pay them minimum wage and overtime? Do you need to change their duties to make sure they meet the duties tests? Have these internal conversations now so that you are not caught off guard when the Final Rule goes into effect in the coming months.

ARTICLE BY R. Calder Huntington of Holland & Hart LLP
Copyright Holland & Hart LLP 1995-2015.

New York City Mayor Signs “Ban the Box” Law

Mayor Bill DeBlasio signed a bill (Int. No. 318) that amends the New York City Human Rights Law (“NYCHRL”) to further restrict employers (with four or more employees) from inquiring into or otherwise considering an applicant’s or employee’s criminal history in employment decisions.  The new NYC law will take effect on October 27, 2015.

As we detailed in our prior post, the new NYC law prohibits employers from asking about criminal history on an initial employment application (“ban the box”) and at any time prior to extending a conditional offer of employment.  The new NYC law also forbids employers from stating on any job advertisement or other solicitation or publication that employment is conditioned or limited based on an applicant’s arrest or conviction history.

For years, before an NYC employer could take adverse action on the basis of criminal history, it had to first engage in a multi-factor analysis under Article 23-A of the New York State Correction Law to determine whether a sufficient nexus exists between the offense and position sought.  Now, under the new NYC law, before taking adverse action the employer also must:

  • furnish a written copy of the criminal history inquiry to the applicant in a form determined by the New York City Commission on Human Rights (“NYCCHR”);

  • provide a written Article 23-A analysis to the applicant in a form determined by the NYCCHR, together with “supporting documents” setting forth the basis and reasons for the adverse action; and

  • after providing the applicant with the required documentation, allow him or her at least three business days to respond and, during that time, hold the position open for the applicant.

To redress violations of the new NYC law, aggrieved applicants and employees may file a complaint with the NYCCHR or in court, with the promise of lucrative remedies under the NYCHRL.

The new NYC law does not apply where the employer must take action pursuant to any federal, state, or local law that requires criminal background checks for employment purposes or bars employment based on criminal history.  For purposes of this exception, “federal law” includes the rules or regulations of a self-regulatory organization as defined by the Securities Exchange Act of 1934 (like FINRA).  The new NYC law also excepts various public employment positions.

NYC now joins a growing number of jurisdictions across the nation that have “banned the box” and otherwise regulated employer use of criminal history in hiring and other personnel decisions.  To ensure compliance with the new NYC law, employers should start to review and, where necessary, make changes to their background check procedures and forms.

ARTICLE BY Katharine H Parker & Daniel L. Saperstein of Proskauer Rose LLP
© 2015 Proskauer Rose LLP.

President Obama Makes Announcement on Overtime Regulations

On Monday, June 29, President Obama announced a change in rules that would expand overtime eligibility to millions of Americans.

CHARLOTTE NC - SEP 21: Democratic nomonee Barack Obama makes a campaign stop in Charlotte NC on Sept 21 2008Beginning with the observation that “It’s been a few good days for America,” Obama announced the salary threshold where workers wouldautomatically qualify for time-and-a-half overtime wages would be raised from  $23,660 to $50,440.  This change in regulation can be made by the Administration, with no need for Congressional approval. The announcement came through a blog post written by the President for the Huffington Post, you can read it here.

President Obama argued that by failing to change the regulations, they had modified their original intentions–instead of highly-paid white collar workers being exempt from overtime, this was negatively impacting workers making as little as $23,660 a year, no matter how many hours they put in during the week. He asserted that “A hard day’s work deserves a fair day’s pay,” and that’s “how America should do business.”  This study, published in late 2013 by Jared Bernstein and Ross Eisenbrey of the Economic Policy Institute, increased the momentum for movement on this issue.

Conservative and Retail groups oppose this idea, claiming it will cost jobs and negatively impact the industry, including negative impacts on customer service.  The National Retail Foundation argues against the measure, saying their research indicates, “overtime expansion would drive up retailers’ payroll costs while limiting opportunities to move up into management. Most workers would be unlikely to see an increase in take-home pay, the use of part-time workers could increase, and retailers operating in rural states could see a disproportionate impact.”

Observers don’t expect this rule to be set into motion until 2016.

Read more at the New York Times here.

ARTICLE BY Eilene Spear of The National Law Review / The National Law Forum LLC
Copyright ©2015 National Law Forum, LLC