DOL Does A “Do Over” on Overtime Regs and White Collar Exemptions

On November 22, 2016, many of you breathed a (big) sigh of relief. Why? Because a Texas federal judge issued a nationwide temporary injunction precluding the U.S. Department of Labor’s (DOL) 2016 overtime regulations from going into effect on December 1, 2016. These regulations would have significantly increased the minimum salary amount for the executive, administrative and professional “white collar” exemptions.

What’s happened since? In December 2016, the DOL, under President Obama, appealed the injunction. The current DOL, under new Secretary of Labor Alex Acosta, has not withdrawn the appeal. The reason: the DOL maintains that contrary to the Texas court’s ruling, it does have the authority to set a minimum salary level for the white collar exemptions.  In pursing the appeal, the DOL has asked the appellate court to affirm the Department’s authority. Continue Reading

Emails – An essential tool that can make you look like a fool

Politics aside, the emails which the President’s son recently published serve as a reminder that email is a very powerful tool – one that can be both beneficial and detrimental.  The President’s son has admitted that, in hindsight, he should have handled the situation differently.  He’s probably referring both to the underlying meeting at issue as well as his email exchanges in advance of the subject meeting.  And, with regard to the emails, he is probably lamenting the fact that they’re virtually indestructible.  They create an evidentiary trail that can be helpful or debilitating, depending on the circumstances.

Electronic communications (emails, text messages, instant messages) are ingrained in our society as a means of personal and business communication.  They aren’t going anywhere – literally.  So we must be diligent in our use of those media to communicate. Continue Reading

Cyberattack: All Eyes On HR

data security-01Ransomware attacks are on the rise. Tuesday, a massive ransomware attack hit global businesses around the world. Last month, the worldwide cyberattack WannaCry affected more than 300,000 computers in over 150 countries. These are just the latest in a string of cybersecurity incidents that have threatened not only the confidentiality of company information, but the very ability of companies to conduct their day-to-day operations.

At our recent 27th Annual Labor & Employment Law Seminar, I spoke about the critical components of a company’s cybersecurity plan. I also discussed how an effective cybersecurity program requires participation and buy-in from various departments in an organization, and Human Resources is a critical component of that effort. More than 50% of all security breaches are caused by company employees. Many hackers target people inside the organization by tricking them into granting access to information or secure areas. Other threats result from careless employee mistakes, such as logging onto an unsecured public Wi-Fi hotspot.

You can read about the steps HR can take to protect a company in my article for the June 2017 edition of the Florida Employment Law Letter, “Cyberwarfare in the workplace: HR on the front lines.”  Implementing these measures can play a critical role in an organization’s ability to prevent and respond to cybersecurity threats.

Clean Up On Aisle 6: Federal Judge Rules That Winn-Dixie’s Website Violates The ADA

website accessabilityIs your organization a “public accommodation” under Title III of the Americans with Disabilities Act (ADA)?  Does your organization have a website?  If so, can that website be navigated with a keyboard (instead of a mouse) and with screen reader software?  Is the audio content on the website captioned?

At this point I know you are thinking, “What does this have to do with human resources or employment law?” As an HR professional, you are the ADA subject matter expert for your organization.  This post will help you showcase that expertise and be a business partner with your senior leadership to identify and remediate potential risk to the organization. Translation: You’ll be a hero. Continue Reading

It’s Payday! Are Pay Stubs an Employer’s Friend or Foe?

pay stubPoll in-house counsel about the things that keep them up at night.  The contents of a wage statement (commonly known as a “pay stub”) would be way down that list.  After all, the federal Fair Labor Standards Act (FLSA) and Florida state law do not require any specific information on employee pay stubs. Logic suggests that sleepless nights would be better spent cleaning out that e-mail Inbox.

I strongly advocate otherwise because a pay stub can lead to wage “theft”/wage and hour litigation, or stop it in its tracks.

Continue Reading

Six Month EAD Extension for Haitian Nationals who Re-register for TPS

Haitian FlagLast week, the Department of Homeland Security (DHS) announced that it would extend temporary protected status (TPS) for Haitian nationals in the U.S. The extension is for only six months and there is a good possibility that DHS will decline to extend TPS status for Haitian nationals beyond January 22, 2018.

Current beneficiaries of Haiti’s TPS designation seeking to extend their TPS must re-register by July 24, 2017. TPS beneficiaries who re-register may request a new Employment Authorization Document (EAD) by filing Form I-765 application for employment authorization. Those who re-register and request a new EAD during the 60-day re-registration period receive an automatic extension of their expiring EAD for up to 180 days from the date their current EAD expires. Current EADs will not be automatically extended unless the Haitian national files a new Form I-765 application to extend work authorization. If a beneficiary’s EAD request is approved, they will receive a new EAD with an expiration date of January 22, 2018. Continue Reading

Top Takeaways from our 27th Annual Labor & Employment Law Seminar

2017 thanks you-01Another successful seminar in the books! Thank you to the nearly 400 attendees who came from near and far. We hope you were able to get a “glimpse into the future” of Labor & Employment law. Check out our Facebook album with photos from the event to see if you can spot yourself or your colleagues!

Congratulations to the winners of our blog contest!

  • $250 AMEX Gift Card: Cynthia Amaro, Fisher Island Club
  • Complimentary Registration to our 2018 Seminar: Maray Rodriguez, Crowne Plaza Miami Airport

The top takeaways from each of our sessions: Continue Reading

Another Attempt To Pass Private Sector Comp-Time Legislation

timesheetAs the fate of the Department of Labor’s revised overtime regulations remains in limbo as a result of a nationwide injunction (currently on appeal) issued in November 2016, Congress now has chimed-in on wage and hour issues potentially impacting non-exempt employees. 

This week, the House of Representatives passed The Working Families Flexibility Act (“the Bill”), which, if passed by the Senate and signed by the President, would extend “compensatory time off” (also known as “comp-time”) rights to private sector employees. 

Currently, comp-time only is available in the public sector.  So, in the private sector, if a non-exempt employee works 5 hours of overtime in “workweek 1,” then the employer must pay-out that overtime, with the payroll for “workweek 1,” at the applicable time and one-half rate.  If the Bill becomes law, however, a non-exempt, private sector employee would have the right to “bank” comp-time for future use (subject to accrual caps), at 1.5 hours of time-off for each overtime hour worked, instead of accepting the immediate payment of overtime.  A non-exempt employee also would have the right to change his/her mind and elect to “cash out” the comp-time “bank” at the time and one-half rate.  Continue Reading

EEOC Wellness Plan Controversy: All’s Well That Ends Well?

health assessmentEarlier this month, the EEOC and Orion Energy Systems settled a case pending in a Wisconsin federal court in which the EEOC alleged that the company’s wellness plan violated the Americans with Disabilities Act (ADA). This case goes back to the spring of 2009 when an employee was forced to pay 100% of her group health insurance premium because she refused to submit to a “health risk assessment” (HRA) during open enrollment.  Those employees who submitted to the HRA did not have to make any contribution for health insurance coverage.  The HRA consisted of a health history questionnaire, biometric screen involving a blood pressure check, height, weight and body circumference measurement and blood draw and analysis.  An employee in the accounts payable department openly complained about the HRA, elected not to participate and was charged the full monthly premium (no company contribution).  She was counseled to keep her opinions about the wellness plan to herself.  Within a few weeks after that, the employee criticized the company’s CEO’s request for information about the employee’s coffee and water breaks.  Orion terminated the employee about 10 days later. Continue Reading

Google’s Pay Policy: Good? Or Too Good to be True?

In January, the U.S. Department of Labor (“DOL”) brought suit in a San Francisco administrative court against Google, Inc. to require Google, as a federal contractor, to allow the government to inspect Google’s pay records.  While the DOL was demanding various documents regarding employees’ compensation history for compliance purposes, it was clear the underlying reason was the DOL’s suspicion that Google was committing gender pay discrimination.

Ironically, in 2016, Google published advice to help other employers analyze their pay structures in order to close the gap in pay between genders. On Equal Pay Day earlier this month, Google also announced to the world that it had proudly “closed the gender pay gap globally.”

google pay

In the administrative court case, the DOL responded: not so fast! Janette Wipper, a DOL regional director, testified last week that the DOL found “systemic compensation disparities against women pretty much across the entire [Google] workforce.” Janet Herold, regional solicitor for the DOL, added “The investigation is not complete, but at this point the department has received compelling evidence of very significant discrimination against women in the most common positions at Google headquarters.”

The internet giant doubled down on its claim that it had closed the gender gap by posting a blog about its pay methodology. Google explained that each year, an amount for each employee’s compensation is proposed based on role, job level, job location, and current and recent performance ratings.  Google stated that the analysts who calculate the suggested compensation have no access to employees’ gender –in essence, it is a “blind” analysis.

Google’s blind analysis uses the following methodology:

google pay2

How can both Google and the DOL be so sure about their respective, completely opposing opinions? Could the disagreement be rooted in the way the DOL and Google define the “roles”? For example, if Google and the DOL compared compensation between similar roles instead of exact roles, would the gender pay gap widen or narrow? If there is a pay gap, could it be that the information used by the Google analysts to “blindly” assign pay is tainted by gender bias—for example, are women not being hired for certain “roles” with higher rates of pay because only men traditionally held those roles? Or are women being scrutinized more harshly in their evaluations, which are then used in the “blind” assessment as a factor in determining pay? The answer is unclear.

Ultimately, the DOL has yet to provide its methodology for determining that Google is discriminating against women. It will be interesting to see how this case unfolds over the next few months. Regardless of the outcome, the case serves as a good reminder to employers that they need to  identify and address any potential inconsistencies or biases that could unlawfully affect compensation and benefits.

*An earlier version of this post stated that the DOL lawsuit was brought in federal court. The blog post has since been revised to clarify that the suit was brought in administrative federal court.

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