DOL Issues Long-Awaited Proposed Overtime Rule

On March 7, 2019, the U.S. Department of Labor issued its new proposed rule on the white-collar exemptions under the federal Fair Labor Standards Act. The proposed rule (“New Rule”) sets new proposed parameters for the white-collar exemption salary requirements and would replace the final rule issued in 2016, which was blocked after a Texas court issued a permanent injunction. The New Rule would set the minimum white-collar salary at $679 per week ($35,308 annually) and is expected to become effective in January of 2020. For more information about the proposed New Rule, read our client alert found here.

New Discrimination Laws Take Effect in New York and Portland

The trend of location specific employment laws is continuing. A new discrimination law and guidance have taken effect, respectively, in the state of New York and New York City, and a new discrimination law will take effect next month in the city of Portland, Oregon. Employers with multijurisdictional operations should continue to monitor location specific developments that may affect their operations.

New York’s Gender Expression Non-Discrimination Act

Employers with New York operations should take heed of New York’s Gender Expression Non-Discrimination Act (GENDA), which took effect on February 24, 2019. GENDA prohibits employment discrimination on the basis of “gender identity or expression.” The law defines “gender identity or expression” as “a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.” The New York State Division of Human Rights had previously issued regulations stating that sex discrimination includes discrimination on the basis of gender identity and the status of being transgender. Under GENDA, gender identity or expression is now an explicitly protected characteristic in New York.

Federal Appeals Court Issues Rare FCRA Decision (Spoiler Alert: It’s Not Good for Employers)

The practice of running background checks on prospective and current employees has become commonplace in many industries. Companies should be careful, however, to ensure that their process complies with the hyper-technical requirements of the federal law governing the use of these background checks — the Fair Credit Reporting Act (FCRA). Under the FCRA, before an employer may obtain a background check from a third party vendor for a fee, it must make a written disclosure to the subject of the background check. That written disclosure must be a stand-alone document that consists only of the statutory disclosure language. The subject of the background check must then provide written authorization for the employer to obtain a background check. Many states — including Minnesota — have their own procedural requirements, either tracking with the FCRA or potentially including add-on requirements.

Independent Contractor Test Changed Again by NLRB

Ensuring that an employer has properly designated workers as independent contractors, as opposed to employees, is an important issue. The applicable test and factors to be considered and applied when making this important determination have often changed over time, with yet another significant change being recently adopted by the National Labor Relations Board (NLRB). In a January 25, 2019, decision in SuperShuttle DFW, Inc., the NLRB relaxed the test, making it easier for a worker to qualify as an independent contractor and effectively reversing a more stringent test adopted by the NLRB in 2014.

According to the NRLB, key factors involved in analyzing independent contractor status include:

The Interaction of Unauthorized Absences Under an Attendance Policy and a Reasonable Accommodation Under the ADA

In December of 2018, the 8^th Circuit Court of Appeals addressed the interaction between a reasonable accommodation under the Americans with Disabilities Act (ADA) and a work attendance policy holding that unauthorized absences under an attendance policy can be used to terminate an employee for whom accommodations are being made under the ADA. In Lipp v. Cargill Meat Solutions Corporation, the 8^th Circuit affirmed dismissal of an employee’s lawsuit alleging her employer discriminated against her when it failed to accommodate her need for intermittent absences under the ADA and terminated her employment. In particular, the 8th Circuit held that the employee was not a qualified individual under the ADA because 195 unplanned absences in the course of one year amounted to an inability “to regularly and reliably attend work, an essential function of her job.”

The Exempt Salary Requirement Under the Overtime Rules – The Saga Continues

If you have been following the attempts to change the exempt employee salary rule under the Fair Labor Standards Act (FLSA), you know that it has been a long, involved story that includes a series of court decisions and moves that have changed the trajectory of the story. In other words: a saga. We now have word that the saga is continuing.

The final rule adopted by the U.S. Department of Labor (DOL) in 2016 would have increased the minimum salary level required for employees to qualify for the executive, administrative, and professional exemptions under the FLSA from $455 per week ($23,660 per year) to $913 per week ($47,476 per year). However, a successful suit brought by the U.S. Chamber of Commerce resulted in a permanent injunction blocking the rule. The Trump administration filed an appeal, but then asked for and obtained a stay of the appeal pending further regulatory action in order to propose new rules.

Remember the New Minimum Wage Rules (And Don’t Forget Local Ordinances While You’re At It)

There is never a shortage of changes in employment law.  By now, Minnesota employers should be aware that Minnesota’s minimum-wage rates changed on January 1, 2019.  For 2019, the state’s minimum wage is $9.86 an hour for large employers and $8.04 an hour for smaller employers.  As you may recall, large employers are those with annual gross revenues of $500,000 or more. 

Remember, also, that your Minnesota posting needs to be updated. The revised poster pack can be found online at 

www.dli.mn.gov/sites/default/files/pdf/mn_poster_pack.pdf and printed. For federal government contractors, don’t forget that many of you must now pay a minimum wage of $10.60 (see here).