Category Archives: Employment Practices

2019 Labor and Employment Law Checklist

Each year, LP’s Labor & Employment Practice Group is pleased to provide a short checklist of steps that all companies should consider taking to measure their readiness for the coming year. We hope that you find our 2019 Labor and Employment Law Checklist to be a helpful guide to best practices for the year ahead.

Download a fillable PDF here. Print it out for yearlong reference, or get started right away and enjoy the satisfaction of checking some very important items off your list.

 

  • Keep Ahead of Harassment & Discrimination Claims.  The #MeToo and #TIMESUP headlines did not slow down in 2018, and preliminary data released by the EEOC showed more than a 50% increase in EEOC charges claiming sexual harassment. In addition, Illinois and New York implemented new requirements relating to harassment policies and training, with Illinois requiring policies for employers that do business with the state or claim EDGE tax credits, and New York implementing strict requirements that apply to all companies with New York employees.  The EEOC also issued “Promising Practices for Preventing Harassment” to provide strategies to employers to reduce workplace harassment. Committed and engaged leadership, strong and comprehensive harassment policies, and regular, interactive training tailored to the audience and the organization are the new standard. If you have not conducted training and updated your harassment, discrimination and retaliation policies to meet these standards, put it on the agenda for early 2019.  

 

  • Update Policies to Reflect New Reimbursement Requirements. Under a new law targeting employers who require employees to use their personal cell phones for business purposes, Illinois now requires employers to reimburse employees for expenses they incur that are “directly related” to the services they are providing their employer. However, employers can set requirements around how and when requests for reimbursement must be made.  It is critical that employers confirm that expense reimbursement policies provide the framework for requesting reimbursement, and that policy manuals are clear that employees are eligible for reimbursement for these expenses, at least to the extent they exceed what the employee would have spent for personal reasons. 

 

  • Review Compensation Policies. The gender pay gap continues to draw the attention of lawmakers. For example, California, Connecticut, Delaware, Hawaii, New York, New Jersey, Maryland, Massachusetts, Oregon, Puerto Rico, Vermont and a number of municipalities have adopted laws making it easier to prove discrimination and/or limiting the compensation information that can be requested from applicants.  And with the change in leadership in Springfield, Illinois might just follow suit in 2019.  Consider reviewing compensation policies to put the emphasis on the value of the work being performed, rather than on what the applicant was paid in his or her last position.   

 

  • Confirm Parental Leave Policies Don’t Discriminate.  Being more generous with paid leave to new mothers than new fathers can create significant liability if the difference is based on gender and not on the physical act of giving birth or the employee’s designation as a primary care giver.  In February 2018, Estee Lauder paid $1 million to more than 200 male workers to settle a charge claiming that the company’s parental leave policy discriminated against male employees. Employers should revisit maternity and parental leave policies to make sure that any difference between the leave being provided to male and female employees is based on a permissible reason.   

 

  • Comply with New Military Leave Protections.  A new Illinois Law –ISERRA– provides some additional protections beyond those of the Federal USERRA.  ISERRA applies to all Illinois employers, regardless of size and requires that a specific notice of rights be posted.  Make sure that your team is aware of these new requirements and that the notice is posted in your workplace. Also, if you have a military leave policy, confirm that it reflects ISERRA.  

 

  • Are Arbitration Agreements Right for You? After years of uncertainty, the Supreme Court determined that employers can legally require employees to arbitrate any disputes individually. But are these types of agreements right for your company?  There are pros and cons of arbitration, so talk with your legal advisors to determine whether the agreements that require individual arbitration make sense for your organization.   

 

  • Revisit Workplace Rules Following NLRB Shift. The NLRB, now controlled by Republicans, is undoing many of the standards put in place by the prior NLRB.  Many, but not all, of these rules are considered pro-employer, including a more practical approach to determining when handbook policies regarding confidentiality interfere with employees’ right to engage in concerted activity. This means that some of the disclaimers and limitations in employee handbooks that were put into place in response to the “old” NLRB’s standards are no longer necessary.  Consider revisiting employee handbooks to clarify policies to be consistent with the current rules. 

 

  • Consider Unpaid Intern Standard Changes.  For years we have counseled clients not to use unpaid interns or risk a variety of employment claims.  However, changes to legal standards from both the courts and the Department of Labor have provided a more practical approach and raises the possibility of treating interns as unpaid.  At the heart of the analysis is whether the internship is more for the intern’s benefit or the company’s, and whether the internship is an extension of their education.  If you have an internship program that works with students, or are considering one, talk to your legal counsel about whether the internships can be unpaid. 

 

  • Update Restrictive Covenants. There has been lots of conversation regarding restrictive covenants. In fact, states are increasingly passing laws related to non-competes. Most recently, Massachusetts passed the most sweeping legislation we have seen in several years, limiting when and how employers can prohibit competition and even requiring additional consideration during the time period in which the employee cannot compete. If your restrictive covenants are more than a few years old, or if they are not specifically crafted to meet the legitimate business needs of the company, it is important to revisit and update them to maximize enforceability.

 

If you found this checklist helpful, subscribe to our blog. For concise, practical updates on the developments that impact you and your business, please subscribe at http://lpemploymentlaw.com.

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New Overtime Regulations More Than Double Minimum Salary Threshold Effective December 1st

Under final overtime regulations set to be published today, the new minimum salary for employees to be exempt from overtime under the “white collar” exemptions will more than double — to $913/week , which is $47,476/year — with further increases every 3 years thereafter, beginning on January 1, 2020.  The new regulations will become effective on December 1, 2016.

In a positive development, according to the Department of Labor’s (DOL) overview and summary of the new rule, employers will be permitted to credit bonuses and incentive payments for up to 10% of the new required minimum salary.

According to the DOL’s summary, the new regulations contain the following changes:

  • Increase of minimum salary for “white collar” exemptions from $455/week ($23,660/year) to $913/week ($47,476/year) — which is the 40th percentile for full-time salaried workers in the lowest-wage Census region (currently, the South).
  • Increase in the salary threshold for the Highly Compensated Employee exemption from $100,000 to $134,000 — which is currently the 90th percentile for full-time salaried workers nationally (note that the Highly Compensated Employee exemption isn’t effective in a number of states, including Illinois).
  • Automatic increases in the salary minimums every 3 years, with the first increase effective January 1, 2020.  For the regular “white collar” exemptions, the minimum salary will increase the  to the 40th percentile for full-time salaried workers in the lowest-wage Census region (estimated to be $51,168 in 2020).  For the Highly Compensated Employee exemption, it will increase to the 90th percentile of full-time salaried workers nationally (estimated to be $147,524 in 2020).
  • Up to 10% of the minimum salary for the regular “white collar” exemptions can be met with non-discretionary bonuses, incentive pay, or commissions, provided that they are paid at least quarterly.
  • The job duties tests remain unchanged.

The Department of Labor estimates that 4.2 million workers will be impacted by the new regulations.

While December seems like a long time away, changes to compensation structures take time.  In order to have all options available, companies need to start thinking now (if they haven’t already) about how the new regulations will impact their workforce and how they are going to react.  We strongly recommend that you speak with your employment attorney to determine the best course of action for your company.

 

New Overtime Regulations Closer to Reality

The long-awaited new overtime regulations took a big step forward this week when the Department of 600px-US-DeptOfLabor-Seal_svgLabor submitted the proposed final regulations to the White House Office of Management and Budget for final review and approval.  This last step in the review process is anticipated to take up to 90 days, with the final regulations anticipated sometime during Q2.

As we noted in our post on June 30, 2015, the proposed regulations more than double the minimum salary requirement for the “white collar” overtime exemptions (administrative, professional and executive) from $455/week ($23,660/year) to approximately $970/week ($50,440/year), with annual increases thereafter based on a to-be-determined index.  The proposed regulations also increase the minimum salary for the Highly Compensated Employee exemption from $100,000/year to more than $122,000/year (though it is important to note that this exemption does not apply under some states’ overtime laws).  Finally, while the proposed regulations did not change the job duties tests, they did suggest that the final rules may impact the job duties tests in addition to the minimum salary requirement.

There are various strategies available to businesses to minimize the financial, operational and employee-relations impact of the new regulations, but it is important to act quickly to consider available options for impacted employees.  Companies should also consider whether other changes to exempt status classifications make sense, as the regulatory change is a good opportunity to improve compliance across the board.

Facebook Comments and “Likes“ Protected Activity?

Social Media keyboard

Is commenting on a Facebook post protected, concerted activity under the National Labor Relations Act?  What about hitting the “Like” button on a post?  The Second Circuit recently agreed with the National Labor Relations Board that they are.

In a decision last year, the Board ruled that a sports bar had unlawfully terminated two employees for their activity on Facebook.  The first employee had commented on a status update of a co-worker stating that the bar’s owners “couldn’t even do the tax paperwork correctly” and that someone should do the owners “a favor” and purchase the business from them.  The employee’s comment stated that she “owed too,” and referred to one of the owners as an “asshole.”  The second employee “liked” the first employee’s status update.  The Board held that both employees’ had engaged in protected, concerted activity under the Act, and that the bar had violated the Act when it terminated their employment.

Last month, the Second Circuit (Connecticut, New York, and Vermont) affirmed the Board’s decision.  The court held that the employees’ actions amounted to a group of employees discussing labor issues and were protected by the Act.  The bar argued that the Facebook comment and “like” were meant to defame the bar – with the use of profanity – and thus brought it outside the protections of the Act.  However, the court reasoned that the Facebook activity at issue was different from obscenities voiced by employees in earshot of customers in a crowded shop (even though customers could view the comments on Facebook).  The court also noted that the bar’s internet and blogging policy could be read as prohibiting employees from protected activity under the Act.

The take-away here?  It’s a good time for employers to review their social media policies.  As we have warned in the past, these policies as written and as enforced must not “chill” employees from engaging in protected, concerted activity.  There is often a fine-line between lawfully prohibiting certain types of activities on the internet and unlawfully interfering with employees’ protected activity.  It’s a good idea to check with counsel on how to best craft the wording of these policies to protect the employer’s interests while not interfering with employees’ rights.

Webinar – Back to School: Employment Law Update

school-suppliesAs fall approaches and students head back to school, The Employment Lawyers are taking a look back and a look ahead at issues in labor and employment law. Join us for an informational webinar to review developments over the past year and discuss tips to keep your workplace practices current in the coming year.

Thursday, September 17, 2015
12:00 pm – 1:30 pm (CDT)
CLICK HERE TO REGISTER

TOPICS

  • Proposed changes to overtime regulations that will make more employees overtime-eligible
  • New standards in accommodating religious practices and pregnancy
  • The NLRB’s “quickie” election rules and what they mean for union organizing efforts
  • Raising the standard to establish that a worker is properly classified as an independent contractor
  • The EEOC’s new position on wellness programs and disability discrimination
  • Expanding employee retaliation and whistleblower claims
  • New state and local laws that impact minimum wage, paid sick leave and accommodation requirements

And more…

CLE Credit Available | This program has been submitted to the HR Certification Institute for review.

QUESTIONS

Contact Annie Darmofal at 312.476.7626 or adarmofal@lplegal.com

What Does The Supreme Court’s Same-Sex Marriage Ruling Mean For You?

On June 26th, in a ground-breGay_flag_svgaking decision, the Supreme Court ruled that same-sex couples have a constitutional right to marry. Full text of the Court’s decision in Obergefell, et al. v. Hodges, et al. can be found here.

But beyond the general public response, employers need to consider how the ruling will impact employment policies and practices — especially in states that previously have not recognized same-sex marriages.  Following are some of the areas where employers might see Obergefell’s impact:

Employee Benefit Plans

If you offer any employee benefit plans through a separate insurance company, all “spousal” benefits must now be extended equally to same-sex spouses as they are to opposite-sex spouses. You may not be under the same restraints if you are self-insured, but if you deny benefits to same-sex spouses in this instance, you run a high risk of discrimination lawsuits.

It’s a good time to review your employee benefit plans and the costs associated with these plans. You should anticipate that the Court’s ruling may add some new couples — and associated costs — to your plans, especially if you did not previously offer benefits to domestic partners or same-sex spouses.

Equal Employment Opportunity

Marital status is a protected class under many state and local laws. These laws now protect all married people, including those in same-sex marriages.

Family and Medical Leave Act

As we discussed in a previous post, the FMLA has recently been amended to include same-sex spouses in the definition of “spouse.” Given the heightened publicity of the Court’s ruling, be sure to review your FMLA policies and practices to ensure that same-sex spouses are included.

Additional Policies and Practices

We recommend reviewing your employee handbook and any other employment policies to make sure that the policies as written – and in practice – apply equally to employees in same-sex marriages or rely on a qualification other than marriage.