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SHRM Newsletter: New Overtime Pay Rules on the Horizon
Posted on May. 13, 2015

This is Utah SHRM Legal-mail no. 2015-8 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).

CONTENTS:

-  NEW OVERTIME PAY RULES ON THE HORIZON

-  TOP TEN WORKPLACE INVESTIGATION TIPS

-  EEOC ISSUES DRAFT RULES ON WELLNESS PLANS

-  DO CONFIDENTIALITY AGREEMENTS VIOLATE WHISTLEBLOWER RIGHTS?

-  RECENT VERDICTS AND SETTLEMENTS

NEW OVERTIME PAY RULES ON THE HORIZON: The United States Department of Labor (DOL) has drafted new rules that likely will give more workers more overtime pay under the Fair Labor Standards Act (FLSA). The rules are awaiting final approval from the federal Office of Management and Budget and should be released for public review and comment sometime in the next 1-3 months. The rules will increase overtime pay in a couple of ways, possibly by increasing the annual minimum salary threshold for exempt employees (currently set at just over $23,000) to over $30,000, $40,000 or even $50,000 annually. You should review your exempt employee salaries now to get a sense of how such a change may impact you. News reports also suggest that DOL could impose a percentage rule on primary duties, i.e. conclude that exempt duties must constitute over 50% or 60% of an exempt employee’s work. Right now, DOL rules define primary duty as the most important thing an employee does, even if he/she does it less than 50% of the time. Other changes are possible too. In all likelihood, this will be a FLSA summer for HR as we all try to figure out how to comply with the new rules.

TOP TEN WORKPLACE INVESTIGATION TIPS: I recently read an interesting article outlining the top ten workplace discrimination investigation tips. Here they are (my additional comments in parentheses): (1) Be prompt; (2) Don’t rush to judgment (i.e. wait until you hear all the facts before you start reaching conclusions); (3) Be willing to reach beyond the workplace (i.e. be thorough and interview non-employees or former employees as needed); (4) Do a deep dive on the evidence (documents and interviews); (5) Pick the right (i.e. a properly trained) investigator; (6) Think through (in advance) privilege issues (i.e. you may not have an attorney-client privilege with a lawyer who serves as your fact investigator if you want to use the investigation report later in defense of any claims); (7) Listen and follow up; (8) Question, don’t interrogate; (9) Don’t draw legal conclusions (remember, this is a factual investigation—define the factual questions to be investigated up front); and (10) Don’t promise confidentiality but make clear retaliation is banned.

EEOC ISSUES DRAFT RULES ON WELLNESS PLANS: The Equal Employment Opportunity Commission (EEOC) has asked for public comment on proposed rules regarding how the Americans With Disabilities Act (ADA) applies to employer wellness plans that are part of group health plans. The proposal focuses on how and when employers may use incentives to encourage employees to participate in wellness activities that may include medical examinations or inquiries about disabilities. The ADA allows both if they are part of an employee health program and voluntary. More information is available here: http://www.eeoc.gov/eeoc/newsroom/release/4-16-15.cfm.

DO CONFIDENTIALITY AGREEMENTS VIOLATE WHISTLEBLOWER RIGHTS? At least one federal agency believes they do. The United States Securities and Exchange Commission recently brought an enforcement action against a company with a restrictive confidentiality agreement. The agreement in question warned employees that they could be fired or face corrective actions for discussing internal investigations with outside parties without company approval. The EEOC has issued similar guidance to employers indicating that confidentiality rules limiting employee protective activity (e.g. raising complaints or helping co-workers with complaints) will be deemed to be illegal retaliation. The National Labor Relations Board (NLRB) also has noted problems in such agreements, specifically if they limit employee rights to act in concert and/or discuss terms and conditions of employment. Employers should approach confidentiality mandates with and only after getting legal advice about the same. In settling the SEC case outlined above, the employer adopted this new language (approved by the SEC) for its confidentiality agreements: “Nothing in this Confidentiality Statement prohibits me from reporting possible violations of federal law or regulation to any governmental agency or entity, including but not limited to the Department of Justice, the Securities and Exchange Commission, the Congress, and any agency Inspector General, or making other disclosures that are protected under the whistleblower provisions of federal law or regulation.  I do not need the prior authorization of the Law Department to make any such reports or disclosures, and I am not required to notify the company that I have made such reports or disclosures.”

RECENT VERDICTS AND SETTLEMENTS: There have been a number of recent interesting verdicts or settlements in employment cases. A Utah jury awarded over $250,000 in damages to a female employee who alleged she was sexually harassed by a justice court judge who allegedly touched her inappropriately and wrote sexual poems to her. A Texas oil drilling company has agreed to pay almost id="mce_marker"5 million to settle EEOC charges involving alleged race and national origin discrimination and harassment as well as retaliation. A national restaurant chain is paying up to $3 million to settle FLSA overtime pay claims from managers who said they did a lot of non-management work such as cleaning, taking out trash and taking customer orders. Finally, a jury in Pennsylvania federal court recently awarded id="mce_marker"3 million in damages to a woman who sued an insulation manufacturer for alleged sexual harassment and gender-biased pay.

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Author

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

OBrienAV

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