New DOL Overtime Regulations On Hold – Now What????

questions mark signLate yesterday, a Texas federal Judge issued a nationwide temporary injunction halting the Department of Labor’s (“DOL”) new overtime regulations, which were set to significantly increase the minimum salary required for the executive, administrative and professional overtime exemptions (known as the white collar exemptions). This unexpected ruling prevents the DOL from implementing the new regulations, which were set to go into effect on December 1st.

The new regulations were introduced back in May and sought to increase the minimum salary threshold from $455/week to $913/week for individuals employed in exempt executive, administrative and certain professional positions. The regulations did not modify the existing duties test, which meant that in addition to satisfying the new salary threshold the worker must continue to meet the actual duties of either an executive, administrative or professional employee to avoid any entitlement to overtime compensation. This increase was expected to impact more than 4 million workers who were anticipating either hefty salary increases or eligibility for overtime as of December 1stContinue Reading

Form I-9 Alert: New Rule Will Automatically Extend Expiring EAD

calendarHow many times have you had to terminate an employee with an expired Employment Authorization Document (EAD) who had filed for a new EAD card but who was waiting for the U.S. Citizen and Immigration Services (USCIS) to issue the new EAD card? That sorry situation may be a thing of the past if a new rule survives the change in administrations.

On November 18, the Department of Homeland Security issued a final rule intending to provide greater stability and flexibility to foreign nationals and greater certainty to U.S. employers who employ or who intend to employ foreign nationals. Many of the areas addressed in the rule simply formalize policy statements and practices that the USCIS has developed over the last sixteen years relating to H-1B holders and foreign nationals pursuing employment-based permanent residence.  The new rule also amends the regulations for the Form I-9 process, 8 CFR §274a, providing an automatic 180 day extension of work authorization for certain EAD holders.

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Employees Behaving Badly III: Now What?

trump funnyThis is the second time my post discusses Donald Trump, except now he is President-elect Donald Trump.  Much has been written in the week since his election regarding how his presidency may impact employers.  Overall, the consensus seems to be that established laws such as Title VII and the Americans with Disabilities Act, for example, will not be subject to attack by the new administration, although how they are interpreted will certainly be influenced by the judges President-elect Trump nominates to the federal bench.  Of more immediate concern to Human Resources professionals may be the impact of President-elect Trump’s conduct prior to his election (and certainly after) in terms of how, if at all, it may influence workplace conduct.

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USCIS Releases New Form I-9

update stampThe U.S. Citizenship and Immigration Services (USCIS) published the latest version of Form I-9 on November 14. Employers must start using the new Form I-9 by January 22, 2017.  Until January 22, employers can continue to use the version of the Form I-9 dated 03/08/2013 N.

According to the USCIS, the new Form I-9 includes the following changes:

  • Section 1 asks for “other last names used” rather than “other names used.”
  • The addition of prompts to ensure information is entered correctly.
  • The ability to enter multiple preparers and translators.
  • A dedicated area for including additional information rather than having to add it in the margins.
  • A supplemental page for the preparer/translator.

The USCIS has also separated the instructions from the form and includes specific instructions for completing each field. The USCIS claims that the revised Form I-9 is easier to complete on a computer because it includes drop-down lists and calendars for filling in dates, on-screen instructions for each field, easy access to the full instructions, and an option to clear the form and start over. When the employer prints the completed form, a quick response (QR) code is automatically generated, which can be read by most QR readers.

You can find the fillable version of the new Form I-9 at the USCIS website.

Non-Compete Agreements Under Fire by the White House?

making sandwichNot really.

On October 25, 2016, the White House issued a call to action urging states to reform their non-compete laws.  The call to action acknowledges that non-compete agreements are appropriate in certain circumstances, (for example, to protect trade secrets), but expressed the view that employers are, in many instances, using non-compete agreements merely as a means to limit workers’ abilities to take higher-paying jobs, and to reduce workers’ bargaining power with their current employers. The call to action also expressed the view that non-compete agreements ”also serve to reduce innovation and entrepreneurship by preventing workers from starting their own businesses.”

To be sure, non-compete agreements are a means of limiting employee competition with a former employer, and Florida is certainly employer-friendly when it comes to enforcing non-compete agreements.  (Non-compete agreements are enforceable under Florida law when they are used to protect a legitimate business interest – including, but not limited to, non-public customer information, sales information and trade secrets – over a limited geographic area and for a limited period of time.)  The call to action does not appear to seek the elimination of existing laws in every state that will currently allow enforcement of non-compete agreements.  Instead, the focus seems to be on making certain non-compete agreements are not being used unfairly and in a way not supportable under existing state law. Continue Reading

Employers Can Use Current Form I-9 until January 21, 2017

coming soonThe U.S. Citizenship and Immigration Services plans to publish a new Form I-9 by November 22, 2016. The current Form I-9 can be identified by “Form I-9  03/08/13  N” in the lower, left corner of the form.  Employers may continue to use the current Form I-9 through January 21, 2017.  After January 21, 2017, employer must use the new form.

Here is a link to the draft Form I-9 that the USCIS posted in March 2016 for review and comment. Please do not use the draft for employment purposes.  Stay tuned to our blog for notification when the USCIS releases the new Form I-9 or visit the I-9 Central section of the USCIS website.

How Does the National Minimum Wage Drop 14.6% – Easy, Pass Brexit!

brexitLast October, my wife and I took a short vacation to Scotland. While visiting, I asked a British labor lawyer what was the British national minimum wage. It was £6.70. At the time £1= $1.54. That meant that the British minimum wage was equal to $10.32 per hour in U.S. dollars (and $2.27 higher than Florida’s current minimum wage).

This morning, I received a note from my British counterpart that the British minimum wage for British workers 25 years of age and up had been increased in April, 2016 to £7.20.  That is a 7.5% increase from when I visited. However, the British pound is now worth about $1.22. That means that although the British minimum wage was increased six months ago, as against the U.S. dollar it decreased and is now equal to just $8.81 per hour. That is a drop of 14.6%.

By voting to leave the European Union this past June, the British workers’ purchasing power has now been diminished by that same 14.6%. I’m sure the British voters who supported Brexit did not contemplate such a substantial drop in the value of their wages as against the U.S. dollar. I’m curious to see how the British national minimum wage is adjusted next in April 2017. 


Halloween Costumes at Work Could be “Tricky”

pumpkin personAt the risk of reinforcing the notion of lawyers and human resources professionals as being the “no fun” bunch, we offer some practical tips to avoiding the unsuspecting tricks employers may experience after treating employees to Halloween cheer. 

First, while many will revel in the opportunity to wear a costume to work and to enjoy Halloween celebrations, keep in mind that not everyone shares that perspective.  In fact, for religious reasons, some people eschew holiday celebrations of any sort, including Halloween.  Be respectful of their beliefs and perspectives.  Do not make participation in Halloween events mandatory and be sensitive to those who may, for religious reasons or otherwise, wish not to participate.  Do not make them feel uncomfortable for exercising their right not to participate.  Creating an atmosphere in which a person feels compelled to participate in a holiday celebration against their religious beliefs may provide support for a claim for discrimination and or harassment.  The EEOC previously pursued this issue on behalf a Jehovah’s Witness who was fired for refusing to participate in a Halloween celebration despite informing her employer that her religious beliefs prevented her from participating in the event. 

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Could the applicant salary history question become history?

salary calculatorSalary history is one of the most commonly asked questions on employment applications. Knowing what a prospective employee currently earns or what they’ve earned in the past can provide you with valuable information to guide your decision as to whom ultimately to hire:

  1. It allows you to determine whether the candidate is in the same salary range. You want to know at the outset whether a candidate is likely to accept a job offer or whether you are wasting your time considering a candidate that is unlikely to accept a job offer because the compensation expectations are off.
  2. It provides a glimpse into the candidate’s employment history. If salary history shows decreases, rather than increases, with successive employers, it may indicate issues with the candidate’s job performance or lead to questions about the circumstances under which they left a prior job.
  3. It allows you to see how prior employers valued the candidate’s work.
  4. It also gives you leverage in making a job offer and negotiating a starting salary.

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A Penny For Your Thoughts . . . A Nickel For Your Minimum Wage

penny nickelFlorida’s minimum wage is going up. Starting January 1, 2017, Florida’s current minimum wage of $8.05 will increase five cents to $8.10 per hour.  For a full-time Florida employee (working 2080 hours), the increase equates to $104 more in wages per year.  The five cent increase was based on the Consumer Price Index rise of just .62% from August 2015 to August 2016.

Restaurant and hotel employers who take a tip credit, may still take up to a $3.02 per hour tip credit against the new minimum wage.  That means that starting January 1, 2017, tipped employees must receive at least $5.08 per hour in direct wages.

On January 1, 2017, Florida employers will also need to replace their current Florida minimum wage poster with a new poster reflecting the new minimum wage.  Posters can be found here in English, Spanish, and Creole.