Walcheske & Luzi, LLC Employment Law Firm http://www.walcheskeluzi.com Wisconsin's Employment Lawyers Fighting Discrimination, Harassment, FMLA, Retaliation, Rights & Benefits Fri, 02 Dec 2016 21:14:05 +0000 en-US hourly 1 http://wordpress.org/?v=4.2.10 Texas Court Stops New Overtime Regulations http://www.walcheskeluzi.com/blog/texas-court-stops-new-overtime-regulations/ http://www.walcheskeluzi.com/blog/texas-court-stops-new-overtime-regulations/#comments Wed, 23 Nov 2016 18:05:07 +0000 http://www.walcheskeluzi.com/?p=3917 On November 22, 2016, Judge Amos L. Mazzant of the Eastern District of Texas issued a nationwide, preliminary injunction halting the Department of Labor overtime regulations scheduled to go into effect on December 1, 2016. Followers of our blog will recall reading about these regulations here and here. Most notably, Judge Mazzant’s decision means that, for now, the salary level threshold will not increase to $47,892 annually (or $921 per week) and the prior level of $23,660 annually (or $455 per week) will remain intact.

In general summary, Judge Mazzant ruled that, at this stage, it appears to him that DOL went farther than its authority under the Fair Labor Standards Act allowed in raising the salary threshold to $47,892 annually. In his memorandum opinion, Judge Mazzant explained, “With the Final Rule, the Department exceeds its delegated authority and ignores Congress’s intent by raising the minimum salary level such that it supplants the duties test.”

While employers across the country are hailing the decision, they are not out of the woods yet in dealing with this issue. Many of our readers have been planning for the new regulations to go into effect December 1, 2016. This has meant not only making decisions on whether to limit employee hours to increase employee compensation, but these plans probably have been communicated to employees by now. How you react in your workplace largely requires decisions based on business and employee morale concerns, as opposed to raising legal issues. Employers may decide to keep their planned changes in place or you may revert back to the status quo. However, after December 1, 2016, employees who currently qualify for exemption from overtime under the salary standard of $23,660 will continue to do so without any change to compensation.

Additionally, employers should continue to pay attention to this issue. Judge Mazzant’s order was a preliminary injunction. This means that based on the evidence and arguments presented thus far, he believes that the parties opposing the new DOL regulations are likely to ultimately prevail. However, his opinion could change in a final decision or DOL could seek an expedited appeal. Either way, it is unlikely, though not impossible, that the overtime regulations could still go into effect at a later date.

There is also the matter of the recent presidential election. In case you haven’t heard, Donald Trump was elected the 45th President of the United States. While most pundits anticipate his will be a business-friendly administration, his campaign was light on any details of how he viewed these new regulations. The most that we learned during the campaign appeared to be that he did not oppose the regulations outright but would seek to exempt small businesses or introduce the increases gradually. Whether he seeks to reintroduce them in another form or continue the litigation to defend them remains to be seen.

]]>
http://www.walcheskeluzi.com/blog/texas-court-stops-new-overtime-regulations/feed/ 0
EEOC Reveals Its Hand with Release of Updated Strategic Plan http://www.walcheskeluzi.com/blog/eeoc-reveals-its-hand/ http://www.walcheskeluzi.com/blog/eeoc-reveals-its-hand/#comments Thu, 10 Nov 2016 19:13:33 +0000 http://www.walcheskeluzi.com/?p=3914 Back in 2012, the Equal Employment Opportunity Commission provided guidance to the public on what especially draws its attention through the release of the 2012-2016 Strategic Plan. Last month, the EEOC again published its intentions for the next four years with the release of its Strategic Enforcement Plan for Fiscal Years 2017-2021.

The 2017-2021 SEP Executive Summary is a worthwhile read for anyone addressing employment law in the workplace. Of primary interest here are the priorities the EEOC identified that it will seek to address over the next four years. These priorities should serve as a big alarm to employers when evaluating their own workforce practices. If the EEOC receives a complaint involving these priorities, it is likely going to draw the agency’s full attention. While any company would be well-served to pay close attention to all of the priority issues, two stick out as especially pertinent in the coming years.

First, the EEOC’s priority on Eliminating Barriers in Recruitment and Hiring directly addresses a couple of growing trends in hiring practices for employers. One trend is that employers are increasingly relying on “big data” to select candidates. These techniques rely on examining objective data seen in successful employees to control an employer’s hiring practice as opposed to, for example, personal impressions observed in the interview process. A great person to follow for more information on big data recruiting is Kate Bischoff. The EEOC is likely going to focus their efforts in this regard to evaluate whether these hiring processes are excluding certain protected-classes of individuals.

Another significant trend related to the EEOC’s recruiting and hiring priority is the technology driven ways in which employers are recruiting for positions. In other words, is an employer’s recruiting and hiring practices excluding certain protected classes from employment without any specific intent to do so. An example of a case that could be raised with greater frequency comes from the EEOC’s 2014 public meeting on social media. There, the EEOC highlighted a claim raised by a 61-year-old applicant who alleged that a federal employer’s use of social media to recruit candidates put older workers at a disadvantage. Similar claims may be raised against private sector employers that do not use diverse methods to attract new talent.

Second, the EEOC’s priority on developing issues, including LGBT discrimination, is one to closely watch in the coming months and years. I highlight this issue because, recently, the Seventh Circuit (the federal court of appeals that covers Wisconsin) took up the case of LGBT discrimination under Title VII for en banc review. Taking on a case in this fashion suggests it may reconsider a three-judge panel decision finding that sexual orientation discrimination is not a claim under Title VII. As recently as last week, a Western District of Pennsylvania court found just the opposite, giving the EEOC its first taste of victory in this arena. In any event this is proving to be a hot topic that employers may be best cautioned to simply avoid by treating it as though Title VII includes the protection.

I would be ignoring the elephant in the room if I did not suggest that Donald Trump’s success in the presidential election may ultimately impact the EEOC’s priorities. In the coming months, President-elect Trump will likely set his own agenda and issue directives to the agency. We do not have a clear picture from the campaign what his priorities may be, but they are almost certain to contrast in some respect to those of President Obama’s administration.

]]>
http://www.walcheskeluzi.com/blog/eeoc-reveals-its-hand/feed/ 0
President Obama Continues to Press For Non-Compete Reform http://www.walcheskeluzi.com/blog/president-obama-continues-to-press-for-non-compete-reform/ http://www.walcheskeluzi.com/blog/president-obama-continues-to-press-for-non-compete-reform/#comments Tue, 01 Nov 2016 14:12:08 +0000 http://www.walcheskeluzi.com/?p=3911 One of the major issues pushed by President Obama has he completes his final year in office is proving to be non-compete reform. Earlier this year, the White House published a report that was generally critical of the growing use of non-compete agreements in the American workforce. This week, the White House continued its efforts to reduce the prevalence of non-compete agreements with a “call to action” for state changes. Along with the call to action, the White House also released a state-by-state summary guide of non-compete laws in the states.

The primary cause for concern identified by the President’s call to action is its claim that widespread use of non-compete agreements limits wage growth and creation of new businesses. While the President’s call to action identifies the “primary rationale of non-competes is to prevent workers from transferring trade secrets to rival companies,” this isn’t necessarily accurate. Most states, including Wisconsin, have trade secret laws that prohibit misappropriation of qualifying information. In this author’s experience, the main reason employers seek non-compete protections is to protect relationships employees may have with customers or clients and/or protect knowledge of internal business information that is important but may not rise to the level of trade secrets.

The President’s call to action asks states to enact legislation that accomplishes three main objectives. First, ban non-compete agreements altogether for certain workers, such as lower wage earners, certain classes of occupations, and individuals terminated without cause. Second, place new requirements on an employer’s ability to agree to non-compete terms with an employee. The President’s suggestions include requiring non-compete terms to be presented before a job offer and providing more benefits to the employee than just employment in itself. Third, promote a court’s ability to void agreements entirely where any part of the non-compete terms is considered to be overbroad and unenforceable.

Change in the direction of the President’s preference is unlikely to come to Wisconsin soon. The most recent efforts at restrictive covenant legislation have focused on making non-compete agreements easier, rather than more difficult, to enforce. This proposed legislation did not pass and some business leaders have even come out against non-compete agreements in the name of improving Wisconsin’s economy. Whether this proposal resurfaces remains to be seen in 2017.

]]>
http://www.walcheskeluzi.com/blog/president-obama-continues-to-press-for-non-compete-reform/feed/ 0
DOL Faces Lawsuits Over Overtime Regulations http://www.walcheskeluzi.com/blog/dol-faces-lawsuits-over-overtime-rules/ http://www.walcheskeluzi.com/blog/dol-faces-lawsuits-over-overtime-rules/#comments Thu, 29 Sep 2016 12:30:27 +0000 http://www.walcheskeluzi.com/?p=3902 This week’s blog post gives readers a preview of our next Walcheske & Luzi LLC Workplace (Dough)Nuts & Bolts Breakfast Series seminar topic on the upcoming Fair Labor Standards Act overtime exemption changes. Be sure sign up and join us October 20, 2016, for a full summary on the changes your workplace needs to be prepared for on December 1, 2016.

As many readers know from prior updates, the federal Department of Labor passed new regulations that affect whether an employee qualifies for exemption from overtime under the Fair Labor Standards Act. The most significant change is the salary level increase from $455 per week ($23,600 annually) to $913 per week ($47,476 annually), which is subject to automatic indexation every three years. The change was widely viewed as a steep, sudden increase to which employers were ill prepared to accommodate in their business costs.

Some employers may be tempted to see hope in the news last week that Texas, along with 21 other states, started a federal court lawsuit against the Department of Labor challenging the new overtime regulations. The States’ lawsuit essentially makes three arguments against the regulations: (1) the regulations violate the Fair Labor Standards Act in doubling the salary level threshold; (2) the automatic indexing change every three years violates notice and comment requirements for administrative regulations; and (3) the regulations unfairly burden States that will inevitably have to pay overtime to State employees. The U.S. Chamber of Commerce also recently brought litigation against the Department of Labor making similar arguments.

However, an employer’s best interests may be to comply with the law and wait for the results of this litigation. The plaintiffs in each lawsuit have tough arguments to make to overcome the overtime regulations for several reasons. Significantly, Congress, in passing the Fair Labor Standards Act, granted the Department of Labor the power to pass regulations defining the exemptions. Moreover, the Department of Labor complied with legal requirements to publish notice of the proposed regulation on July 6, 2015, and to take comments, which were received through September 4, 2015. Whether anyone likes it or not, the procedural requirements seem to met with respect to the salary level increase. Though the plaintiffs may have a stronger argument with respect to automatically indexing this level every three years, it seems difficult to foresee a court finding the regulations to be wholly unconstitutional or unlawful.

Any employer failing to comply with the regulations also risks much in the event the Texas and U.S. Chamber of Commerce lawsuits are not successful. Damages under the Fair Labor Standards Act include not just the unpaid overtime, but liquidated (double) damages, and attorneys’ fees and costs. Thus, what may be a relatively small amount of overtime can easily grow to a large award with these other available damages.

For more information, join us October 20, 2016!

]]>
http://www.walcheskeluzi.com/blog/dol-faces-lawsuits-over-overtime-rules/feed/ 0
New Wisconsin Court of Appeals Case Should Have You Reviewing Your Noncompete Agreements Quicker than a Simone Biles Backflip http://www.walcheskeluzi.com/blog/nonsolicitation/ http://www.walcheskeluzi.com/blog/nonsolicitation/#comments Mon, 22 Aug 2016 14:51:06 +0000 http://www.walcheskeluzi.com/?p=3899 Almost like clockwork, every couple of years there is a new Wisconsin case that requires employers to take a new look at their restrictive covenant agreements to make sure they are enforceable. Last week proved this adage true to form as the Wisconsin Court of Appeals took on a new issue with respect to application of Wis. Stat. § 103.465, Wisconsin’s restrictive covenant law, to nonsolicitation agreements. Along the way, however, the court drove home another point that should have every employer reviewing their noncompete agreements once again.

In Manitowoc Company, Inc. v. Lanning, the court examined the nonsolicitation agreement Manitowoc Company had with its former employee, John Lanning. Those terms stated:

I agree that during my Employment by Manitowoc and for a period of two years from the date my Employment by Manitowoc ends … I will not (either directly or indirectly) solicit, induce, or encourage any employee(s) to terminate their employment with Manitowoc or to accept employment with any competitor, supplier or customer of Manitowoc.

When Lanning left Manitowoc Company for a competitor, Manitowoc Company alleged other employees followed him due to his solicitation in violation of the agreement. Of course, litigation ensued (and a blog post followed).

The unique issue the Court of Appeals took on was whether Wis. Stat. § 103.465, and the restrictive covenant caselaw generally, applies to agreements not to solicit former coworkers. Most litigation in this arena addresses related but distinct noncompete terms. No Wisconsin court had directly answered this nonsolicitation question. The court concluded that nonsolicitation terms are restraints of trade that are indeed subject to § 103.465.

Perhaps the more significant contribution Lanning makes to parties addressing restrictive covenant agreements is the discussion it provides on how closely such agreements must be scrutinized by courts. Manitowoc Company attempted to argue that courts should look at how such agreements actually are enforced to determine whether they are overbroad, rather than how they could possibly be enforced. The Court of Appeals provided a thorough summary of restrictive covenant law in Wisconsin to strongly reject this argument. The Court of Appeals explained:

An overbroad provision is not reasonable and enforceable simply because the employer enforces it in a reasonable manner. … When determining whether a restrictive covenant is overbroad, our cases demonstrate that we look not at the particular facts or circumstances of a case, but to the plain language of the agreement itself. … Thus, if the text of the [nonsolicitation] provision restrains trade impermissibly, it is unenforceable even if the acts complained of in this action could have been proscribed by a more narrowly written and permissible restrictive covenant.

In light of this standard, the Court of Appeals proceeded to present a series of ways in which Manitowoc Company’s nonsolicitation terms would prohibit Lanning from acting for which the business had no interest in stopping him. For example, the Court of Appeals explained the nonsolicitation terms would prevent Lanning from encouraging a friend at Manitowoc Company to retire.

This case provides a strong incentive for employers to re-examine their restrictive covenants today. Lanning obviously provides a good lesson with language that many employers may have in place right now. But more than that, all restrictive covenant terms should be closely examined to make sure the restrictions are narrowly tailored to the potential unfair competition that is at issue for each specific employee. It can be a very expensive endeavor to think about how your restrictive covenant language could apply once it comes time to enforce the agreement during litigation, rather than before making the trip to the courthouse.

]]>
http://www.walcheskeluzi.com/blog/nonsolicitation/feed/ 0
A Former Staff Member of the St. Louis Cardinals Just Gave Employers 46 Reasons to Update Their Employee Training http://www.walcheskeluzi.com/blog/cardinals/ http://www.walcheskeluzi.com/blog/cardinals/#comments Tue, 19 Jul 2016 16:47:34 +0000 http://www.walcheskeluzi.com/?p=3875 Many legal blogs writing about computer misconduct in the workplace typically warn employers what wayward employees might do after the original employment relationship ends and competition with that individual begins. Just last week, our own blog featured this topic here. But have you thought about the issues your company’s tech-savy employees’ might raise during the employment relationship?

A good lesson to answer this question comes from a case involving a former St. Louis Cardinals’ employee, Christopher Correa. Correa was the Cardinals director of scouting, and yesterday he was sentenced to 46 months in prison and ordered to pay nearly $280,000 in restitution after he pleaded guilty to multiple counts under the Computer Fraud and Abuse Act. Regular readers of this blog will recall that the CFAA prohibits individuals from engaging in the following activity:

Intentionally accesses a computer without authorization or exceeds authorized access and thereby obtains . . . information from any protected computer[.]

Correa’s misconduct leading to this sentence all occurred in the scope of his employment for the Cardinals. Perhaps more surprising is that Correa did not use any highly sophisticated coding skills to obtain his unauthorized access – he just happened to guess the right user name and password.

Correa’s wrongdoing started with the departure of a Cardinals employee, Jeff Luhnow, for the Houston Astros. When Luhnow left the Cardinals, he turned in his laptop and disclosed the user name and password for the device. Luhnow apparently enjoyed that user name and password so much he regularly used it for access to other systems.

This became relevant to the Astros player database, called Ground Control. A news story on Ground Control made its existence widely known. After Luhnow left the Cardinals for the Astros, Correa used Luhnow’s user name and password to access Luhnow’s e-mail where Luhnow received the Astro’s password for Ground Control. Correa then accessed Ground Control, via Luhnow’s credentials, at several key times during the season to obtain the Astros’ internal information on players in the draft and trade considerations. Earlier this year, Correa pleaded guilty to all counts filed against him for his behavior.

Employers should take heed of several warnings that come from Correa’s story. First, annual employee training should address computer fraud. Today’s workplace is highly competitive and employees need to know the potential criminal of trying to use a former employee’s login credentials, like Correa. Something as simple as guessing a password to a system you do not have authority to access can have serious consequences. Further, although the Cardinals have not faced civil liability to date, it is not difficult to see how an employer could be legally implicated by the employee’s conduct. For example, a competitor will likely look for any courtroom avenue possible if such unauthorized access leads to the loss of significant sales money. If a lower-ranking employee is acting on the instructions of a higher-ranking supervisor, the employer could be directly implicated. Additionally, not all employees may appreciate how their favorite user name and password they enjoy for access to anything requiring one can be a major security risk. Passwords should be regularly changed and employees should know why it is important to rely on something unique whenever possible.

]]>
http://www.walcheskeluzi.com/blog/cardinals/feed/ 0
The Netflix Password Case You’ve Heard About Is Really An Employment Law Case http://www.walcheskeluzi.com/blog/netflix/ http://www.walcheskeluzi.com/blog/netflix/#comments Fri, 15 Jul 2016 18:18:08 +0000 http://www.walcheskeluzi.com/?p=3872 In recent days, media outlets have enjoyed website hits spreading like wildfire on social media from a case out of the Ninth Circuit that purportedly makes it a federal crime to share your Netflix password (for example, here, here, and here). For anyone concerned, you may take comfort where the majority opinion outright states, “This appeal is not about password sharing.” The headlines rise from the dissenting opinion that does not control. However, any company with critical information stored on electronic devices should pay attention to the U.S. v. Nosal (“Nosal II”) opinion because it does present relevant lessons for the employment.

Nosal II concerns the Computer Fraud and Abuse Act (“CFAA”). This not-so-well-known law prohibits conduct that can be critical in today’s workplace. The CFAA makes it a crime for anyone who “knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value . . . .” When might this come up in an employment context? Just about any time an employee takes critical information from an employer’s computer systems to compete with his or her former employer.

Nosal II decision involves employees of an executive search firm who launched a competing business. After announcing his resignation from Korn/Ferry International, Nosal negotiated an agreement with the company to stay on for a year. Nosal used that year to prepare to compete with Korn/Ferry International. At first, Nosal used his own password credentials to access the company’s systems and take proprietary information. However, once he was cut off by his employer, he relied on the credentials of a former assistant to continue to access the employer’s computer systems, and specifically their database of candidates and potential candidates. However, when each employee began at Korn/Ferry International, that individual signed a confidentiality agreement that prohibited password sharing. Additionally, a search report of the candidate database always included a message that the information was intended for use by employees for work on the company’s business only.

The recent Nosal II opinion actually follows a decision from the same parties a few years ago in Nosal I, where the Ninth Circuit addressed different language in the CFAA: Nosal I concerned the latter restrictive language quoted above: when does an individual “exceed[] authorized access.” The Ninth Circuit addressed the issue of whether an employee who violates an employer’s policies prohibiting the use of work computers for nonbusiness purposes exceeded authorized access for purposes of the CFAA. The Ninth Circuit’s answer in that decision was that the employee does not violate the CFAA under such circumstances.

Nosal II, however, deals with the earlier CFAA language: when does an individual access a protected computer “without authorization.” The court followed an earlier decision and took a plain meaning approach to define “authorization” as “permission or power granted by authority,” which can be granted or revoked. Here, the Ninth Circuit determined that after Korn/Ferry International revoked Nosal’s permission to the system, he no longer had authorization to access the company database in any form. The court also concluded that the assistant did not have authority to provide her password to Nosal or his cohorts and they knew she could not give out her password. Thus, although Nosal was successful in Nosal I, the Ninth Circuit found he violated the law in Nosal II.

What does this mean for employers? If you have electronic information that is critical to the company’s business success, this is another less that you need to treat it that way today so that you can protect it through the courts tomorrow. First and foremost, make sure that vital information is secured and protected. But this also means identifying to employees that once the employment relationship ends, individuals no longer have authority to access what they previously were allowed to access. Further, employees should be informed in writing that they may not share their access with others. When the employment relationship ends, remind them of these terms.

Wisconsin note: The Seventh Circuit took a different, broader approach to CFAA protections than the Ninth Circuit in Nasal I and conduct that “exceeds authorization.” In International Airport Centers, LLC v. Citrin, (7th Cir. 2006), the court found that an employee who breached his duty of loyalty by taking steps to compete with the employer terminated his authority to access the company’s laptop. This sort of passive revocation of authority was identified by the Ninth Circuit as what it wanted to avoid under the CFAA.

]]>
http://www.walcheskeluzi.com/blog/netflix/feed/ 0
Is Your Wellness Program “Well” According to the EEOC? Part III http://www.walcheskeluzi.com/blog/is-your-wellness-program-well-according-to-the-eeoc-part-iii/ http://www.walcheskeluzi.com/blog/is-your-wellness-program-well-according-to-the-eeoc-part-iii/#comments Fri, 17 Jun 2016 20:32:45 +0000 http://www.walcheskeluzi.com/?p=3869 Who says sequels are never as good as the original? Previously we wrote on the topic of employer wellness programs here and here. These posts concerned proposed regulations put forth by the Equal Employment Opportunity Commission to address when a wellness program complies with the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act and active litigation by the same federal agency over alleged violations by certain employers taking place through wellness plans. In the last month, however, a number of important developments have come out that employers with wellness programs should know.

First, on May 16, 2016, the EEOC released its final new rules concerning wellness programs. A big issue addressed by the rules is the question of how much is too much? In other words, how much of a financial incentive can an employer offer to an employee to participate in a wellness program for it to remain voluntary? Generally, the answer employers will find in the EEOC’s final regulations is 30%. That is, the financial incentive cannot exceed 30% of the plan’s cost for the employee. There are some nuances in what numbers you look at depending on the health plan and wellness program offered by the employer, but 30% is the general rule. The rules go into effect on July 18, 2016.

Second, on June 16, 2016, the EEOC issued a sample notice for employers offering wellness programs. One of the new requirements of wellness programs is that employers must disclose to employees who are subject to disability-related inquiries or medical examinations a notice that explains what medical information will be obtained, how it will be used, who will receive it, the restrictions on its disclosures, and the methods the employer will use to prevent improper disclosure of it. The EEOC’s sample notice can be a cost-effective tool, but employers should take care to be sure that it makes sense for their workplace.

Although the EEOC’s enforcement efforts with respect to wellness programs have proven to be controversial, employers with wellness programs are likely best positioned to avoid the agency’s wrath or other private litigation by updating policies and practices to conform to these new rules. With the release of the EEOC’s final rules, now is an ideal time to self-audit your wellness program with counsel to ensure legal compliance.

]]>
http://www.walcheskeluzi.com/blog/is-your-wellness-program-well-according-to-the-eeoc-part-iii/feed/ 0
What Do Donald Trump and the Equal Employment Opportunity Commission Have in Common? http://www.walcheskeluzi.com/blog/what-do-donald-trump-and-the-equal-employment-opportunity-commission-have-in-common/ http://www.walcheskeluzi.com/blog/what-do-donald-trump-and-the-equal-employment-opportunity-commission-have-in-common/#comments Fri, 10 Jun 2016 14:06:26 +0000 http://www.walcheskeluzi.com/?p=3866 Not a question you might anticipate reading, huh? Well, the answer is that each is taking time this summer to remind employers about national origin discrimination. For Donald Trump, this comes through the firestorm raised over his comments on the impartiality of a federal judge because he is of Mexican descent. For the EEOC, this comes through seeking public comment on recently released proposed enforcement guidance on national origin discrimination.

To be clear, Title VII would not apply to the Trump scenario because there is not an employment relationship present between the Donald and Judge Curiel. However, under Title VII of the Civil Rights Act of 1964, employers are prohibited from discriminating against an individual in the workplace on the basis of an individual’s national origin. As the EEOC’s proposed guidance explains, this type of discrimination is directed at an individual because he or she “is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.”

Of course, national origin discrimination may take place through commonly understood means of harassing an individual because of his or her national origin or terminating or refusing to hire an individual because of his or her national origin. But there are a few unique ways in which national origin discrimination can take place as well, of which employers should be familiar. For example, the EEOC’s proposed guidance explains that an English-only language policy in the workplace may be unlawful if it is enacted “to avoid hearing foreign languages in the workplace, to generate a reason to discipline or terminate people who are not native English speakers, or to create a hostile work environment for certain non-English speaking workers.” In fact, the EEOC presumes that such English-only rules violate Title VII.

The proposed guidance is available here. The public may comment on the proposed guidance through July 1, 2016. After this date, the EEOC will review all comments and consider changes to the proposed guidance before finalization. Stay tuned for updates on our blog regarding the release of the final version of the EEOC’s enforcement guidance.

]]>
http://www.walcheskeluzi.com/blog/what-do-donald-trump-and-the-equal-employment-opportunity-commission-have-in-common/feed/ 0
New DOL Overtime Regulations are Here, Effective December 1, 2016 http://www.walcheskeluzi.com/blog/new-dol-overtime-regulations-are-here-effective-december-1-2016/ http://www.walcheskeluzi.com/blog/new-dol-overtime-regulations-are-here-effective-december-1-2016/#comments Wed, 18 May 2016 04:21:09 +0000 http://www.walcheskeluzi.com/?p=3863 The Department of Labor (DOL) has finally released its final rule on overtime regulations. Here’s what you need to know:

  • The standard salary level was increased from $455 per week ($23,660 annually) to $913 per week ($47,476 annually)
  • The total compensation level for “highly compensated employees” was increased from $100,000 to $134,004
  • As anticipated, the salary levels are set to be revisited (aka, increased) every three years, beginning January 1, 2020
  • The salary basis test was amended to allow nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10% of the new standard salary level ($47,476 annually). Previously, discretionary bonuses and incentive payments were not be included.

While final rule’s standard salary level ($47,476) is lower than was anticipated ($50,000 proposed), it is obviously still a dramatic increase from the previous $455 per week requirement.

The regulations are effective December 1, 2016, so now is the time to get your house in order.

Here’s what you need to do:

  • If you haven’t done so already, all positions and compensation levels need to be audited to determine whether salaries that would otherwise fall beneath the new standard level will be increased to at least $913 per week, or if another compensation system (such as changing a previously salaried individual to hourly compensation) should be utilized
  • If you will be making additional positions hourly, be sure that your timekeeping system is ready to handle them and that you are familiarizing those positions with your timekeeping systems and policies
  • Create a system now of implementing future changes to the standard salary level. The level will likely be changing (increasing) every three years, beginning January 1, 2020
  • Be sure to include your employment law attorney/firm in this process to ensure that compensation and timekeeping systems and policies are being implemented correctly. Getting it right on the front end is imperative to avoiding headaches down the road.

For questions or more information, be sure to contact us.

We will be providing more in-depth information regarding these changes and the DOL’s overtime exemptions at a forthcoming seminar. Be sure to stay tuned to our site for more information.

]]>
http://www.walcheskeluzi.com/blog/new-dol-overtime-regulations-are-here-effective-december-1-2016/feed/ 0