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SHRM Newsletter: DOL Proposes Rule to Limit Overtime Exemptions
Posted on Jul. 2, 2015

This is Utah SHRM Legal-mail no. 2015-11 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:

- DOL PROPOSES RULE TO LIMIT OVERTIME EXEMPTIONS

- DOL ALSO TO ISSUE GUIDANCE ON INDEPENDENT CONTRACTORS

- SUPREME COURT STRIKES DOWN STATE BANS ON SAME SEX MARRIAGES

- EEOC ISSUES UPDATED GUIDANCE FOR PREGNANCY DISCRIMINATION

- AND ONE THING YOU DO NOT NEED TO DISCUSS WITH YOUR LAWYER

DOL PROPOSES RULE TO LIMIT OVERTIME EXEMPTIONS: The United States Department of Labor (DOL) has proposed a new Fair Labor Standards Act (FLSA) rule that would raise the minimum salary threshold required to qualify for a “white collar” overtime pay exemption to $50,440 per year...which is $970 per week. The current threshold is $23,660/year ($455/week). This salary threshold must be met regardless of whether an employee’s job duties satisfy a particular exemption’s requirements. A new threshold salary for the highly-compensated employee exemption is proposed at $122,148 annually (currently set at $100,000 annually). No changes are proposed to the various exemption job duties tests. DOL now will take comments on this proposal but a rule will not be finalized/enforced until later this year at the earliest. You can read the proposed new rule here: http://www.dol.gov/whd/overtime/NPRM2015/OT-NPRM.pdf. This new rule eventually will mean that an employer must review again its exempt jobs paying less than the new salary threshold (whatever is eventually finalized by DOL) and determine if it wants to raise the salary to keep the exemption in place or reclassify the job as nonexempt. I will keep you informed about developments, but you should also consult with your employment lawyer on how this proposed new rule will impact you.

DOL ALSO TO ISSUE GUIDANCE ON INDEPENDENT CONTRACTORS: DOL is also poised, in the early summer, to publish a guidance memo to employers on the classification of workers as employees or independent contractors. DOL asserts that misclassification is a serious problem for workers, legal compliance and the overall economy. DOL says the planned guidance will offer employers clear criteria on how to properly make such classifications. The guidance will come on the heels of a California court ruling finding that Uber drivers are employees and not independent contractors. Uber is symbolic of the so-called emerging sharing economy, defined by one reference as “a socio-economic ecosystem built around the sharing of human and physical resources.” The issue of independent contractor classification remains one about which the government thinks there is employer abuse. Thus, to be consistent here, you should consult with your employment lawyer on the propriety of your independent contractor classifications.

SUPREME COURT STRIKES DOWN STATE BANS ON SAME SEX MARRIAGES: The United States Supreme Court has struck down state bans on same sex marriage, making it legal throughout the entire country. The legalization of same sex marriage will have a practical impact on employers. Employers who treat same sex married couples differently from traditional marriage couples are at risk of litigation, including from the Equal Employment Opportunity Commission (EEOC) which has a current goal of eradicating employment bias against the LGBT community. Employers should now treat same sex spouses the same way they treat opposite sex partners in terms of legal rights and access to benefits. It would be wise to immediately contact your benefits broker or provider (e.g. for health care benefits) and ask how and when you can do so. Some providers are allowing immediate access to plans for same sex spouses as new dependents if done within a reasonable time following the Supreme Court ruling. Others might allow employees to add same sex spouses during open enrollment periods. And by the way, this ruling creates a new wrinkle for your open enrollment periods, right? Make sure you work carefully with benefits providers to properly consider the new development. And, of course, talk to your employment benefits lawyer about this stuff.

EEOC ISSUES UPDATED GUIDANCE FOR PREGNANCY DISCRIMINATION: The EEOC recently updated its guidance for employers regarding pregnancy discrimination, found here: http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm. The update is the EEOC’s attempt to explain employer requirements in this arena in light of recent court rulings. The main point of the updated guidance, in my view, is to continue to offer the EEOC’s expanded view of employer obligations to accommodate pregnant employees in the same manner as disabled employees. In other words, the EEOC essentially says that an employer must treat a pregnant employee in a similar manner to how it treats other employees similarly able/unable to work. If you have accommodated these other employees similarly able/unable to work (as you likely have done in order to comply with the Americans With Disabilities Act and related state laws), then the EEOC says you must also accommodate the pregnant employee. Hate to sound like a broken record here, but this is an evolving area of law so you should also consult with your employment lawyer on how it will impact you.

AND ONE THING YOU DO NOT NEED TO DISCUSS WITH YOUR LAWYER: July 4, 2015 is the 239th birthday of the United States of America. Our red, white and blue country has been around awhile and seems to be aging well. No need to get legal counsel about what to do in response, but here goes anyway. I strongly recommend that you barbecue something, boil up some corn on the cob, eat some ice cream and apple pie, watch fireworks, spend time with friends or family and enjoy the heck out of the holiday. Happy Birthday America and Happy Independence Day!

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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