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SHRM Newsletter: New Final DOL Overtime Regulations May Be Delayed
Posted on Nov. 20, 2015

This is Utah SHRM Legal-mail no. 2015-17 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).







NEW FINAL DOL OVERTIME REGULATIONS MAY BE DELAYED: News reports suggest that the United States Department of Labor (DOL) may delay issuing final new regulations dealing with overtime pay requirements under the Fair Labor Standards Act (FLSA) until the middle of 2016 or even later and that the new rules may not even take effect until 2017. DOL’s proposed new rules 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 salary 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 also is proposed at id="mce_marker"22,148 annually (currently set at id="mce_marker"00,000 annually). The news reports on the delay in the final rules are based on comments allegedly made by a DOL official at a recent employment law conference. The reasons for the delay are said to be the complexity of the matter and the large volume of public comments DOL received on the proposed rules. This is all unofficial, so stay tuned for developments!

TIME TO RE-THINK HOW YOU TREAT CONTINGENT WORKERS? The law on how companies treat contingent/temporary workers seems to be going through a period of evolution. Federal agencies such as DOL and the National Labor Relations Board (NLRB) recently have addressed this issue in a manner that more liberally includes most workers as employees of some kind. In essence, the law states that if a company directs and/or exercises control over temp employees, that company can be deemed to be a joint or co-employer over those employees for purposes of various employment laws. This means, for example, that if that temp feels he/she was released from working at the company in a discriminatory manner, that temp can bring such claims against both the company and the temp agency that referred him/her. The required control can be exercised in a variety of ways, including but not limited to: (1) telling the agency which specific persons to send as temp workers; (2) directing or instructing the work of a temp onsite (especially if there is no agency supervisory employee to do so); (3) otherwise acting like a supervisor of the temp (evaluating, disciplining, coaching etc.); and (4) instructing the agency to remove the temp from the worksite or even having the contractual power to do so. Many companies, for good and legitimate business reasons, want to exercise control and direction over temps. These reasons include assuring work quality, increasing productivity, promoting morale, enhancing teamwork or just boosting the chances of mission success. When this is done, however, the chances increase that the company will be deemed to be a joint employer of the temp. Thus, essentially, the choice on this point is to control or not control. If a company chooses to exercise control, you should use your standard good HR practices with the temps, i.e. coach, evaluate, document problems and events, investigate issues and consider/mitigate risks when considering discharge. If you choose not to exercise control, you should be certain that there is a competent and qualified person from the temp provider (e.g. staffing company) providing proper supervision and to whom you can express any concerns you have about the temp employee.

FMLA AND MOONLIGHTING: Do you want your employees not to work another job while taking Family and Medical Leave Act (FMLA) leave from you? You better address the issue directly in your FMLA policy. DOL regulations say an employer can have a uniformly-applied policy that prohibits outside work, including during leave periods. However, in the absence of such a policy, an employer might only be able to act against moonlighting and deny FMLA benefits when that FMLA leave is “fraudulently obtained.”

TUESDAY SAID TO BE BEST DAY TO TERMINATE EMPLOYMENT: According to a recent article from national SHRM summarizing a LinkedIn discussion of HR professionals, the best day to fire an employee is Tuesday, not Friday. And the best time of the day to let someone go is towards the end of the work day or after regular hours. I also have always heard you should never fire someone on Christmas Eve. For these and other interesting and fascinating termination tips, see:

BUDDHIST NOT FIRED BECAUSE OF BIBLE: A Texas jury has ruled that a Buddhist employee was not fired for refusing to include Bible quotes in the company newsletter he was producing. The company responded to the allegation that the employee was laid off due to a carefully planned and documented reduction in force. Apparently, after the decision, the plaintiff employee felt the jury was not enlightened, but the defendant company thought the jury had spoken the Gospel truth.

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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