Congress has joined the fight in trying to stop or delay the Department of Labor’s new overtime regulations. This week, the U.S. House of Representatives voted 246 to 177 to delay the effective date of the DOL’s overtime rule by six months until June 1, 2017. This bill faces an uphill battle — first having to pass the Senate and then a very likely Presidential veto.
Given that the bill is unlikely to become law, and given the questionable future of pending court challenges, employers should continue to prepare for the new regulations to be effective on December 1st. We will continue to monitor these challenges and keep you apprised.
The Equal Employment Opportunity Commission (EEOC) has released its final Enforcement Guidance on Retaliation and Related Issues. While the guidance doesn’t create any new law, it serves as a good reminder of the position the EEOC takes on such claims. Here are a few highlights from the Guidance:
- Retaliation can exist even when no official employment action against the employee is taken. For example, it could be retaliation because of the employee’s EEO activity for an employer to:
- reprimand an employee or give a performance evaluation that is lower than it should be;
- transfer the employee to a less desirable position;
- engage in verbal or physical abuse;
- threaten to make, or actually make reports to authorities;
- increase scrutiny;
- spread false rumors, treat a family member negatively; or
- take action that makes the person’s work more difficult.
- The EEOC makes clear that an employer cannot retaliate against an employee for raising Americans with Disabilities Act (ADA) rights, and cannot interfere with ADA rights by doing anything that makes it more difficult for an applicant or employee to assert these rights.
- The Guidance contains an entire section entitled “Examples of Facts That May Defeat a Claim of Retaliation.” This section includes examples such as poor performance, inadequate qualifications, negative job references, misconduct, reductions in force or downsizing, as well as others.
- The Guidance includes a list of suggestions that the EEOC believes may reduce the risk of retaliation violations:
- Implementing a written anti-retaliation policy;
- Training all supervisors on the anti-retaliation policy;
- Providing advice and individualized support for those who could be in a position to retaliate and those who could be in the firing line for retaliatory action;
- Proactively following up after protected activity or opposition has taken place; and
- Reviewing your internal employment actions to ensure full compliance with the EEOC laws on retaliation.
We encourage all employers to review the Guidance carefully to make sure that their current policies and practices are compliant. Employers should pay particular attention to the EEOC’s suggestions on practices that may reduce the chances of retaliation, as implementing and enforcing these may help to protect employers from potential retaliation claims.
This week, 21 states and over 50 business groups filed suit in the Eastern District of Texas challenging the Department of Labor’s new overtime regulations, arguing that the DOL overstepped its authority in establishing the new minimum salary level and the automatic increases to the minimum salary every 3 years.
The new regulations (which,as we have previously discussed
, more than double the minimum salary requirement for employees to be eligible for the administrative, professional and executive overtime exemptions) have been hotly contested — in Congress and now in the courts. But it is far from clear that any of the efforts to delay or stop the new standards will be effective.
We will continue to monitor these challenges and keep you apprised. However, unless and until a challenge is successful, employers should plan to be ready for the new regulations on December 1st.