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SHRM Newsletter: FLSA Stays in the News
Posted on Jun. 1, 2015

This is Utah SHRM Legal-mail no. 2015-9 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:

-  FLSA STAYS IN THE NEWS

-  BYOD RAISES LOTS OF ISSUES

-  EEOC GOES DIGITAL

-  FEDERAL LEGISLATIVE UPDATE

-  BOSS-RELATED STRESS RULED NOT A DISABILITY

FLSA STAYS IN THE NEWS: Any day now…that is the expected date of release by the United States Department of Labor (DOL) of new draft overtime exemption regulations under the Fair Labor Standards Act (FLSA). The new regulations are expected to make it more difficult for employers to claim exemptions from FLSA, possibly by raising the amount of minimum salary required for the “white collar” exemptions. Once the proposed rules are made public, there will be a 60 day public comment period. Then, DOL will take some time to revise and finalize the rules. Thus, my best guess is that the new rules (whatever they are) will not be final and in effect until towards the end of this year or until early in 2016 (could also be longer). Meanwhile, news comes that a health care company has agreed to pay some $80 million to settle claims by about 10,000 workers that the employer misclassified them as exempt from overtime. The plaintiffs also had claimed they were not compensated for off-the-clock work or properly paid for travel time.

BYOD RAISES LOTS OF ISSUES: Does your organization allow employees to use personally-owned electronic devices for work purposes? Many employers have moved to a “bring your own device” (or “BYOD”) approach. To minimize the risks associated with BYOD, you may want to consider some of the following issues: (1) Do you have a current, effective written BYOD policy? (2) Are employees required to sign a written acknowledgment of the policy before using a personally-owned device for work? (3) What types of devices will be allowed, and which employees (or positions) will you allow to use personal devices for work? (4) Will you require the use of a mobile device management product to segregate company information and personal information on the device? (5) What other security measures will be required? For example, will you require password protection and auto-lock settings? (6) What steps should be taken by the employee and the company if a device is lost or stolen? Will the company “wipe” the device remotely, and could that result in the loss of personal information from the device? (7) How will you ensure that all company information is removed from the device when the employee leaves the company? (8) Will you prohibit employees from backing up company information to personal cloud storage services? (9) Do you have a plan for compliance if faced with a “litigation hold” or other investigative requirement to preserve and produce data from employee-owned devices? (10) If non-exempt employees are allowed to access work information outside of work hours, such as checking e-mail at night, how will you avoid a FLSA problem and ensure that they are properly compensated for time worked? These are just some of the issues employers should consider when using a BYOD approach.  This is an evolving area of the law, and one that HR professionals will want to stay focused on and discuss with their legal counsel. (Thanks to my colleague Marci Rechtenbach for contributing this article.)

EEOC GOES DIGITAL: The Equal Employment Opportunity Commission has announced a pilot project to take its charge processing and response system digital.  According to the agency, the first phase of the project “allows employers against whom a charge has been filed to communicate with the EEOC through a secure portal to download the charge, review and respond to an invitation to mediate, submit a position statement, and provide and verify their contact information. The newly designed EEOC notice of a charge will provide a password-protected log in for the employer to access the system in the pilot offices. Employers will also have the option of opting out of the pilot program and receiving and submitting all documents and communications in paper form.” FYI for those of us out West, the EEOC offices in Denver and Phoenix will begin their pilots by the end of May 2015. More information is available here: http://www.eeoc.gov/eeoc/newsroom/release/5-6-15.cfm.

FEDERAL LEGISLATIVE UPDATE: The Senate is considering a bill that would require all employers to use E-Verify and reauthorize the program, which is set to expire in September of 2015. The bill, S. 202, would treat an employer’s failure to use E-Verify as a violation of the federal requirement to verify employment eligibility and would create a presumption that the employer knowingly hired, recruited, or referred an illegal alien. More information is available here: https://www.congress.gov/bill/113th-congress/senate-bill/202. Some Senators also are proposing legislation that would raise the minimum wage to id="mce_marker"2/hour by the year 2020. This bill will slowly raise the existing $7.25 rate over the next five years, with the first hike to $8 in 2016 and id="mce_marker" annual increases thereafter until 2020. The bill comes on the heels of decisions by large cities such as Los Angeles and Seattle to pass ordinances raising the minimum wage to as much as id="mce_marker"5/hour. More information is available here: http://fortune.com/2015/04/29/minimum-wage-congress-12-dollars/ .

BOSS-RELATED STRESS RULED NOT A DISABILITY: A California Appeals Court has concluded that an employee’s inability to work with a specific manager who caused the employee stress and anxiety did not constitute a disability under state law. The employee’s own doctor had diagnosed her with adjustment disorder with anxiety. In dismissing the case, the court also noted that the employer had granted the employee five months of leave as an accommodation after the employee exhausted state and federal leave allotments. Despite this assistance and the absence of a legally-definable disability, the plaintiff had still sued the employer and expensive litigation ensued, which probably resulted in the Company’s personnel manager filing a claim related to Post Traumatic HR Stress Disorder (now commonly known as PTHRSD).

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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

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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