Employment Law Update – Winter 2019
EMPLOYERS CAN EXPECT HIGHER SALARIES FOR EXEMPT EMPLOYEES
The U.S. Department of Labor (“DOL”) has been working on a new overtime rule that is expected to raise the salary threshold for exempt employees higher than the one that has been in place since 2004, but lower than the one it sought a few years ago. Currently, to be exempt from overtime employees must perform duties that are primarily executive, administrative or professional and earn at least $23,660 a year ($455 a week). Under the Obama Administration, the DOL proposed a rule that would have doubled this salary threshold to $47,476 a year ($913 a week). A number of states sued to stop that salary threshold raise because it was too drastic and a federal judge in Texas struck down the new rule a few weeks before it was to take effect on December 1, 2016.
Now the DOL has been working on a new proposal that should take effect later this year. The DOL has finished a series of “listening sessions” for interested parties and is planning to issue a Notice of Proposed Rule Making (“NPRM”) in March. The NPRM is the next step in an effort to propose a new rule with a salary threshold that many predict will be in the $32,000 to $33,000 range. If an NPRM is issued in March, there will be another comment period, and then the DOL will take more time to examine the comments before issuing a new rule. While it probably won’t be as drastic as the prior proposed raise, it would at least adjust the current level for inflation and result in more employees being entitled to overtime.
The former Regional Enforcement Coordinator for the DOL Wage-Hour Division, Patricia A. Slate, was contacted for this article to provide employers with her perspective on what to expect from the DOL this year. Ms. Slate agreed with most experts that the DOL will attempt to raise the salary threshold to somewhere in the $30,000 to $35,000 range. Ms. Slate also indicated that while the March date for an NPRM may be a little ambitious on the DOL’s part, employers would be well-advised to audit their pay practices with an eye to a probable DOL rule raising the salary requirement for exempt employees.
Since retiring from the Wage-Hour Division of the DOL, Pat Slate has been providing a valuable “insider’s perspective” to K&C clients as a wage-hour consultant with over thirty years’ experience with this federal agency. She has been particularly valuable to employers in conducting self-audits for proactive employers who want to protect against what can be a very costly legal headache. This is because the wage-hour rules are technical and mistakes are easy to make even when the law isn’t about to change
FLEXTIME – EXPANDING THE EMPLOYER’S “SANDBOX”
Today’s workforce looks very different than it did 20 years ago. Flexible work schedules have changed the way that many workers and employers view their day. Employees seek flexible schedules to meet the many demands upon their day and employers have adopted flexible schedules to attract and retain good employees. Allowing employees to work from home has expanded the workforce “sandbox,” but cyber security challenges have increased in the process.
In order to permit employees to telecommute and collaborate online with their fellow in-office colleagues, employers generally have to invest in various technologies that enable all employees to share files, work collectively and store materials relevant to everyone in one location. But the utility and efficiency of these tools and online shared workspace is fraught with data privacy risk. Picture employees in various locations freely uploading documents, using apps to share information that are not approved by employers, and convening virtual meetings that record and store voice and video data. Concerned yet about data privacy? If not, you should be. Do you know what apps and software employees are using? Are you adequately controlling the environment in which all employees, regardless of location, must interact?
Bottom line, employers need to consider safeguards that must be put into place when expanding their sandbox to allow flexible schedules, along with necessary tools and policies to control the activities of employees which are not nearly as contained as in the past. Sandbox rules need to be established, and all employees, regardless of location, need to be trained on those rules. But, just as important, employers need to enforce the rules. The sandbox needs to be defined, contained and controlled in order for an employer to protect the privacy, security and integrity of data.
As tax season approaches, remember it’s W2 scam time. Remind your employees to be on the lookout for emails asking for electronic copies of W2s (whether W2s for 2018 or a prior year), 1099s and health insurance reporting forms, and encourage them to report suspicious emails before they respond. Providing mandatory training for employees will further help prevent costly data security breaches. Battling the cyber criminals who use phishing techniques like these may have become more difficult with an expanded sandbox, but effective training is still an employer’s best weapon in that battle.
PARTICIPATING IN EEOC CHARGE DOES NOT ALWAYS PROTECT EMPLOYEE FROM DISCHARGE
The U.S. Court of Appeals recently confronted a case that threatened to stretch the anti-retaliation provisions of Title VII beyond all recognizable boundaries – and unanimously ruled against the employee. In Netter v. Barnes, the Court recognized that Title VII protects employees from retaliation for “participation” in a Title VII case “in any manner,” a clause that previously allowed employees to claim protection for a wide variety of activities. But there are limits, the Court held. Here, the employee claimed discrimination. She then “helped out” an internal Human Resources investigation by giving the HR representative two of the confidential personnel files she kept on subordinates, as well as three confidential files a “personal friend” allowed her to see. The employee also shared the purloined files with the EEOC, her lawyer – and ultimately, during discovery in her court case, with her employer, who was understandably upset and fired her while her discrimination case was pending. Not surprisingly, the employee blew the “retaliation” whistle.
No dice, said the Court. Even the “in any manner” language of the retaliation statute has to have some limits, and stealing personnel files, illegally reviewing them, and then giving them to others is beyond the line. A key fact in the Court’s reasoning? The employer was a Sheriff’s office – a public entity – and disclosing the confidential personnel file wasn’t just impolite; it was a crime. And firing an employee for committing a crime is legal, even if the employee’s intention was to use the files to “participate” in her EEOC proceeding. In any event, this was an important victory for employers who struggle with when they can discipline employees who have filed claims.
What is the take-away? For private employers, reviewing confidential company documents without authorization may not always be a crime, but theft of company files is, of course, unlawful. And as this case refreshingly reminds us, employees who think they can get away with anything if they have a discrimination claim pending can still be held accountable for misdeeds, and at times may even be fired without fear of a valid retaliation claim.
WORKPLACE ROMANCES CAN BE PROBLEMATIC
Spring is upon us and “love is in the air,” but workplace relationships can create headaches for employers. This is particularly the case when romances break up and the employees remain in the same work environment. Unfortunately, most office relationships don’t last forever and, particularly if the relationship involves a subordinate dating his or her boss, breakups may end in claims that their romance was not welcome and that the subordinate employee feels like he or she is a victim of retaliation following the end of the relationship. With the #MeToo movement strengthening and sexual harassment claims on the rise according to EEOC statistics, employers hardly need another source of potential claims.
To protect against potential legal claims, some employers have resorted to “no-dating” policies or “love contracts” if such dating is allowed between employees. Depending upon applicable state law, such steps may be legal, but they do not always eliminate the headaches that can accompany office romances. No-dating policies may deter some relationships and love contracts may help document that the relationships were welcome at their outset, but office relationships will take place even if there is a policy prohibiting them and love contracts cannot account for how the relationships may develop and/or end. In any event, if one of the participants supervises the other, other employees inevitably will feel that inappropriate favoritism is taking place and morale problems will ensue.
An employer’s best course of action may be to make sure its anti-harassment policies are in place with appropriate reporting procedures should an employee feel he or she is being harassed. To reinforce such policies, employers may also want to provide more workplace harassment training for all of their employees. These steps should help employers monitor such romances and take appropriate steps to avoid legal claims.
35TH ANNUAL EMPLOYMENT LAW UPDATE RETURNS TO RICHMOND
On April 18, 2019, K&C’s 35th Annual Employment Law Update returns to the Greater Richmond Convention Center. Over the years, social media has triggered some interesting legal questions about its effect on the workplace. From posts, to photos, to comments that can be interpreted as vulgar, obscene, threatening, intimidating or even harassing – social media can make the employment law arena quite confusing. The 35th Annual Employment Law Update will highlight social media in the workplace and other employment law risks while providing practical suggestions on risk avoidance.
The seminar will include an entertaining/educational mock scenario featuring problem employee “Antoine Merriweather” and his inadvertent disclosure of confidential employee information to a cybercriminal. Dynamic diversity trainer Mauricio Velasquez will also be present to discuss topics that should help HR professionals deal with cyber bullying and HR’s role as a change agent in most organizations. And the luncheon speaker will be “Top Gun” employee lawyer, David Simonsen, who will provide his candid views about how he chooses the employers that he sues. Representatives from key employment law agencies will be in attendance and, as always, the ever popular “Answer Booth” will be available. Attendees can also earn up to 6 credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI) and 5 PDCs toward the SHRM-CP or SHRM-SCP. And finally, one lucky attendee will win an Apple® iPad Wi-Fi 32GB at the end of the day. To register, visit www.kaufcan.com/events or call 757.624.3232.
The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2022.