gavel-1238036DOL’s Attempt to Interfere with Attorney-Client Relationships Blocked by Texas Court

Back in March of this year, the Department of Labor (DOL) tried to interfere with employers’ confidential communications with their attorneys.  Some law firms surrendered, ran, or hid, saying they would no longer have the kinds of conversations DOL wanted to interfere with.  Shawe Rosenthal, along with other Worklaw Network firms, stood up and fought.  We filed a lawsuit against the DOL to protect our clients’ interests and maintain the integrity of the attorney-client relationship.  Two similar lawsuits were filed against the DOL, and in one of them, employers can consider themselves victorious following an Order from a United States District Court in Texas holding the DOL’s new rule unlawful and setting it aside. Continue Reading DOL’s Attempt to Interfere with Attorney-Client Relationships Blocked by Texas Court

Today, December 1, 2016, the Department of Labor issued a press release announcing that it had filed an appeal to the U.S. Court of Appeals for the 5th Circuit of the emergency nationwide injunction of the new overtime rule, which had been granted last week by Judge Amos Mazzant, as discussed in our November 23 blog, “Overtime Rule Will Not Take Effect on December 1.” The preliminary injunction temporarily blocked the DOL’s new rule raising the required minimum salary level for the Fair Labor Standards Act’s white-collar exemptions from the requirement to pay overtime pay. The rule was set to go into effect on December 1st.

As discussed in our May 18, 2016 E-lert, in order to be exempt from overtime, a white-collar employee must meet three tests: (1) the salary basis test – the employee must be paid on a salary basis, not subject to reductions for fluctuations in quantity or quality of work; (2) the salary level test – the employee’s salary must currently be at least $455 per week (equaling $23,660 per year); and (3) a duties test – the employee must perform certain duties specific to the executive, administrative or professional exemption in question.  There is also a highly-compensated employee exemption under which an employee must currently make at least $100,000 per year and perform at least one exempt duty.

The DOL’s revised rule would have doubled the salary requirement for white collar (executive, administrative and professional) employees from $23,660 per year ($455 per week) to $47,476 per year ($913 per week).  The required minimum salary for the highly compensated employees’ exemption would also have been raised from $100,000 to $134,004. These salary levels would have been subject to automatic adjustments every three years. The new rule did not change the duties test for any of the exemptions.

The new rule was challenged by 21 states and multiple business groups, arguing that such change was unlawful. In issuing the preliminary injunction, the judge agreed, noting that the rule change “creates essentially a de facto salary-only test,” which Congress had not intended. In the press release, however, the DOL stated, “The Department’s Overtime Final Rule is the result of a comprehensive, inclusive rule-making process, and we remain confident in the legality of all aspects of the rule.”

auction-gavel-HpmTks-clipartA federal judge in Texas has issued a preliminary injunction that prevents the Department of Labor’s revised overtime exemption rule from taking effect as scheduled on December 1, 2016.

As discussed in our May 18, 2016 E-lert, in order to be exempt from overtime, a white-collar employee must meet three tests: (1) the salary basis test – the employee must be paid on a salary basis, not subject to reductions for fluctuations in quantity or quality of work; (2) the salary level test – the employee’s salary must currently be at least $455 per week (equaling $23,660 per year); and (3) a duties test – the employee must perform certain duties specific to the executive, administrative or professional exemption in question.  There is also a highly-compensated employee exemption under which an employee must currently make at least $100,000 per year and perform at least one exempt duty. Continue Reading Overtime Rule Will Not Take Effect On December 1

jpgThis week, the United States Citizenship and Immigration Services (USCIS) published an updated I-9 Form on its website, which can be accessed here.

The Immigration Reform and Control Act prohibits employers from hiring people without first identifying their identity and employment authorization.  The I-9 Form is the mechanism to achieve that.  Employers are required to complete the I-9 Form within three days of the first day of work for all new hires.

By January 22, 2017, all employers will need to be using the revised form for all new hires.  Until then, employers can either continue to use the current version, which is dated 03/08/2013, or they can use the new version.  The version date is located at the bottom left corner of the form.

Continue Reading USCIS Issues New I-9 Form

onion-1328465Here’s a seasonally appropriate horror story for employers.

As employers know (I hope), Title VII prohibits discrimination against employees on the basis of religion. That means that employees cannot be subjected to adverse employment actions based on their own religious beliefs, but also because they refuse to submit to an employer’s religious beliefs. But what is “religion” within the meaning of Title VII? The answer to that is incredibly confusing and very broad – encompassing all sorts of non-traditional belief and morality systems. The Supreme Court has said that determining what is a religious belief “is more often than not a difficult and delicate task.” The Equal Employment Opportunity Commission, in its regulations, has provided an expansive definition of religion that includes:

moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. . . . The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee.

The effect of this incredibly vague and broad definition means that employers may not always recognize when they’re dealing with a situation involving religion. A striking (perhaps even terrifying) example of this can be found in the recent federal court decision, EEOC v. United Health Programs of America, Inc. Continue Reading Court Finds “Onionhead” Conflict Resolution Program = Religion

Last week, a federal district court in Nevada extended Title VII protections to a transgender employee with respect to bathroom usage by holding that discrimination “because of sex” under Title VII includersghs discrimination based on a person’s gender.

The Plaintiff (Roberts) is a transgender police officer with the Clark County School District (the Department) who identifies as a male officer.  In 2011, Roberts began dressing for work like a man, grooming like a man, and identifying himself as a man.  He also started using the men’s bathroom at work.  Co-workers in turn complained that a woman was using the men’s bathroom.  A meeting was called with Roberts, and his supervisors told him that he could not use the men’s restrooms and that he should only use the gender-neutral restrooms to “avoid any future complaints.”  When Roberts complained about the bathroom ban, he was informed that he would not be allowed to use the men’s restroom until he could provide official documentation of a name and sex change. Continue Reading Nevada Federal Court Finds that Prohibitions on Transgender Employee’s Bathroom Usage is Discrimination Because of Sex under Title VII

ml_rm_iliw_tm_4cc_d_eAs I mentioned in a recent post, “SEIU Fights Its Own Unionization,” the Service Employees International Union has been behind the push at the National Labor Relations Board to extend joint employer status to franchisors, like McDonald’s (meaning that McDonald’s would be deemed an employer of its franchisees’ employees). And now, it is further extending this push – to the Equal Employment Opportunity Commission. On October 5, 2016, (as first reported by The Guardian) Fight for $15 (which is backed and funded by SEIU) announced that it had helped 15 McDonald’s employees (who are also Fight for $15 activists, unsurprisingly) file charges with the EEOC, claiming that they had been sexually harassed by their employers. Apparently only one of the charges was filed against a corporate McDonald’s store – the rest were filed jointly against franchisee stores and McDonald’s Corporation. Continue Reading SEIU Expands Joint Employment Fight to the EEOC

downloadAs I’ve made clear in past posts, I am increasingly frustrated with the current National Labor Relations Board’s clearly pro-union, anti-employer approach. I find many of their decisions to have little or no relationship to common sense or logic. So I found a concurring opinion by Judge Patricia Millett in the recent case of Consolidated Communications, Inc. v. National Labor Relations Board to be of particular interest, as she expresses her “substantial concern with the too-often cavalier and enabling approach that the Board’s decisions have taken toward the sexually and racially demeaning misconduct of some employees during strikes.” Judge Millet goes on to say, “These decisions have repeatedly given refuge to conduct that is not only intolerable by any standard of decency, but also illegal in every other corner of the workplace.” (!!!!) Continue Reading Why Does the NLRB Tolerate Racist and Sexist Conduct?

shadow-dollar-sign-1239535I enjoy those cases where those (sometimes uppity) government agencies get a taste of their own medicine. I previously told you about the EEOC being sued for failing to accommodate its own employee’s disability, for example. Here’s another one – the U.S. Department of Labor, which is the federal agency that enforces the Fair Labor Standards Act (FLSA), including its overtime provisions, just agreed to pay $7 MILLION to settle a claim that it failed to pay overtime to its own employees!!! Continue Reading DOL Settles Its Own Multi-Million Dollar Overtime Suit

gavel-1238036The U.S. District Court in Minnesota ruled, on June 22, 2016, that the Department of Labor’s new interpretation of the advice exemption from the persuader rule is “untenable” and “flawed.”   The Court did not issue an injunction against the new interpretation, which goes into effect July 1, 2016, but that was based on its finding that the DOL suspended the most objectionable reporting requirement after the lawsuit was filed.  The challenge to the new interpretation was filed by Worklaw Network, a national alliance of labor and employment firms of which we are a member.  Our firm, along with Seaton, Peters & Revnew, P.A. of Minneapolis, represented Worklaw, as we discussed in a prior post, “Shawe Rosenthal and Worklaw Just Sued the DOL.” Continue Reading Court Finds DOL’s New Persuader Rule “Flawed”