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SHRM Newsletter- Watch for Possible Expansion of Overtime Obligations
Posted on Mar. 17, 2014

This is Utah SHRM Legal-mail no. 2014-5 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).







WATCH FOR POSSIBLE EXPANSION OF OVERTIME OBLIGATIONS: Via Presidential Memorandum dated March 13, 2014, President Obama has asked his Department of Labor (DOL) to draft new rules expanding employee opportunities to receive overtime for hours worked beyond 40 in one week. The memorandum talks about simplifying the regulations, but also expresses the desire that the number of works receiving overtime pay be expanded. The DOL can do this in several ways. One approach would be to raise the salary threshold required for the so-called white collar exemptions. Currently, it is set at $455/week (or $23,660 per year). If that amount were doubled to $900/week, an employee earning less than $46,800 annually would have to be paid overtime even if he/she performed exempt-type duties. Another approach DOL could take would be to re-write the job duties tests to make an exemption more difficult to obtain. For example, among other things, the executive exemption requires that an employee supervise at least 2 FTEs. The exemption could be made more difficult to obtain-- and more employees made nonexempt-- if that requirement was raised to 10 or 20 FTEs. Moreover, the DOL could impose a percentage limit on nonexempt duties, i.e. mandate that the exemption is only available to employees who are performing exempt duties more than 50% of the time. DOL must issue draft rules and allow for comment from stakeholders and other interested parties before it can finalize any changes, a process which can take up to six months to complete.

EEOC AND FTC OFFER TIPS ON EMPLOYER BACKGROUND CHECKS: The Equal Employment Opportunity Commission (EEOC) has asserted it has jurisdiction over background checks because inquiries about criminal and credit history allegedly can have a disparate impact on persons in minority groups. The Federal Trade Commission (FTC) has jurisdiction over this issue due to the Fair Credit Reporting Act. The two agencies with authority over employer background checks recently issued a new joint guidance for employers on how to legally conduct such background checks. The EEOC’s press release announcing the new guidance noted, “The agencies emphasize that employers need written permission from job applicants before getting background reports about them from companies in the business of compiling background information. Furthermore, they reaffirm that it is illegal to discriminate based on a person's race, color, national origin, sex, religion, age (40 or older), disability, or genetic information, including family medical history, when requesting or using background information for employment, regardless of where the information was obtained. At the same time, the agencies want job applicants to know that it is not illegal for potential employers to ask about their background, as long as the employer does not unlawfully discriminate. However, when people are turned down for a job or denied a promotion based on information in their background reports, they have the right to review the reports for accuracy.” In other documents, the EEOC has emphasized that the background information to be obtained must plainly and clearly be relevant to the job at issue. For example, a DUI may be relevant for someone who drives a van as part of his job, but not for someone who is a custodian and not required to drive. You can read the full press release and find a link to the two new guidances here:

RULES ON RELIGIOUS GARB AT WORK CLARIFIED: The EEOC also recently issued a new guidance (in a Q and A format) that discusses employer rights and responsibilities regarding allowing the wearing of religious garb at work (press release and links found at In doing so, the EEOC noted that “Employers covered by Title VII must make exceptions to their usual rules or preferences to permit applicants and employees to follow religiously-mandated dress and grooming practices unless it would pose an undue hardship to the operation of an employer's business. When an exception is made as a religious accommodation, the employer may still refuse to allow exceptions sought by other employees for secular reasons.” Topics covered in the new EEOC publications include: (1) prohibitions on job segregation, such as assigning an employee to a non-customer service position because of his or her religious garb; (2) accommodating religious grooming or garb practices while ensuring employer workplace needs; (3) avoiding workplace harassment based on religion, which may occur when an employee is required or coerced to forgo religious dress or grooming practices as a condition of employment; and (4) ensuring there is no retaliation against employees who request religious accommodation.

UTAH LEGISLATIVE UPDATE: The annual Utah legislative session ended on March 13, 2014. The only bill passed by the Legislature of significant interest to employers likely is HB 140 (found here:, which allows an employer to receive a tax break for hiring a homeless person. The Legislature is expected to address the following types of workplace issues during its next session starting in January of 2015: should it raise the minimum wage? Should it ban workplace sexual orientation discrimination? Should it increase the remedies available under state law for victims of job bias? Should it impose new notice requirements on an employer who requests a credit score on an employee (for purposes other than extending credit)? Stay tuned for further developments.

SUPREME COURT EXPANDS SOX WHISTLEBLOWER PROTECTION: In a recent decision, the United States Supreme Court extended the circumstances in which an employer can possibly be held liable for retaliation against whistleblowers. The Sarbanes-Oxley (SOX) law passed in the early 2000s prohibits publicly-traded companies from retaliation against whistleblowers who report corporate fraud. The case before the Supreme Court involved the question of whether the law’s anti-retaliation provisions would also apply to a private company which performed contract or subcontract work for a publicly-traded company. The court held that the word “employee” under the relevant SOX provision could be construed to protect employees of such contractors and subcontractors, thus expanding the reach of the SOX whistleblower law.

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mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

Awards and Recognition


OBrien Best

Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012