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SHRM Newsletter: DOL Overtime Rules Could Change Soon
Posted on Mar. 31, 2016

This is Utah SHRM Legal-mail no. 2016-6 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 OVERTIME RULES COULD CHANGE SOON

-  DOL TRIES TO CLARIFY DEFINITION OF JOINT EMPLOYER

-  NEW UTAH LAW REQUIRES REPORTING OF CHILD PORN

-  UTAH GOVERNOR APPROVES ALL NEW EMPLOYMENT LAWS

-  EMPLOYMENT LAW NEWS BRIEFS

DOL OVERTIME RULES COULD CHANGE SOON: 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 id="mce_marker"22,148 annually (currently set at id="mce_marker"00,000 annually). No changes are proposed to the various exemption job duties tests. DOL likely will finalize the rule sometime in the Spring or early Summer of 2016. 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.

DOL TRIES TO CLARIFY DEFINITION OF JOINT EMPLOYER: DOL also has issued a guidance attempting to clarify the definition of the phrase “joint employer” for purposes of the laws enforced by DOL. You can read the new guidance here: http://www.dol.gov/whd/flsa/Joint_Employment_AI.htm. DOL asserts that its laws typically more broadly define employer than does the common law test that focuses on control. The analysis can be complex, but here is a quick summary. DOL notes that, “Horizontal joint employment should be considered when an employee is employed by two (or more) technically separate but related or overlapping employers.” DOL typically looks at the following types of factors in such settings: (A) who owns the potential joint employers (i.e., does one employer own part or all of the other or do they have any common owners); (B) do the potential joint employers have any overlapping officers, directors, executives, or managers; (C) do the potential joint employers share control over operations (e.g., hiring, firing, payroll, advertising, overhead costs); (D) are the potential joint employers’ operations inter-mingled (for example, is there one administrative operation for both employers, or does the same person schedule and pay the employees regardless of which employer they work for); (E) does one potential joint employer supervise the work of the other; (F) do the potential joint employers share supervisory authority for the employee; (G) do the potential joint employers treat the employees as a pool of employees available to both of them; (H) do the potential joint employers share clients or customers; and (I) are there any agreements between the potential joint employers. DOL also notes, “The vertical joint employment inquiry focuses on whether the employee of the intermediary employer is also employed by another employer – the potential joint employer. In vertical joint employment situations, the other employer typically has contracted or arranged with the intermediary employer to provide it with labor and/or perform for it some employer functions, such as hiring and payroll.” Seven factors commonly reviewed in this analysis are: (1) who is directing, controlling, or supervising the work performed; (2) who is controlling employment conditions; (3) the permanency and duration of the relationship; (4) the repetitive and rote nature of the work; (5) if the work is integral to the business; (6) if the work is performed on premises; and (7) who is performing administrative functions commonly performed by employers. 

NEW UTAH LAW REQUIRES REPORTING OF CHILD PORN: A new law enacted by the 2016 Utah Legislature requires that a computer technician report any instances of child pornography that he/she discovers in the course of the technician’s work. The new law defines computer technician as “an individual who in the course and scope of the individual's employment for compensation installs, maintains, troubleshoots, upgrades, or repairs computer hardware, software, personal computer networks, or peripheral equipment.”  Reports must be made to a state or local law enforcement agency, or to the Cyber Tip Line at the National Center for Missing and Exploited Children, or to an employee designated by the employer of the computer technician. The employer must then immediately forward any computer technician reports on to one of the law enforcement entities outlined above. A computer technician’s failure to report can be a class B misdemeanor crime. Employers should develop a reporting system, appropriate notices (e.g. in an employee handbook) and training to implement this new law. You can read the new law (HB 155) here: http://le.utah.gov/~2016/bills/static/HB0155.html. FYI, Utah law also imposes a general legal duty on all persons to report when that person “has reason to believe that a child has been subjected to abuse or neglect, or who observes a child being subjected to conditions or circumstances which would reasonably result in abuse or neglect,” see: http://le.utah.gov/xcode/Title62A/Chapter4a/62A-4a-S403.html.

UTAH GOVERNOR APPROVES ALL NEW EMPLOYMENT LAWS: In the last few legal updates, we have outlined for you the half dozen or so new employment laws enacted by the Utah State legislature. Utah Governor Gary Herbert has signed (and not vetoed) any of these laws, and thus they are set to take effect in May of 2016 unless otherwise noted in the bill itself.

EMPLOYMENT LAW NEWS BRIEFS: Here are some brief but interesting employment law news items. California legislators are pointed to raise the state’s minimum wage to id="mce_marker"5/hour over the course of several years. Lyft recently agreed to pay over id="mce_marker"2 million to settled claims by drivers that they were inappropriately classified as independent contractors rather than employees. Five superstars from the United States World Cup champion women’s national soccer team have filed charges with the Equal Employment Opportunity Commission (EEOC) alleging that they were not paid equally with their male colleagues. The women allegedly only receive forty percent of the pay that the men receive. Whoever wins the wage battle likely will run down the hallway yelling “Gooooooooaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaal!”

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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