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EMPLOYMENT LAW UPDATE

New overtime rule now in effect

By Mike O’Brien bio

Jan. 1, 2020 was the deadline to comply with new FLSA overtime rule. At the end of September the Department of Labor issued its long-awaited final rule updating the salary level test for white-collar overtime exemptions under the Fair Labor Standards Act. Under the new rule, the minimum salary level for exemption is raised from $455 a week to $684 a week, or $35,568 annually. The change marks the first increase in the minimum salary level to take effect in more than 15 years. It is expected to bring overtime eligibility to over a million employees who are ineligible under the current threshold. Although the DOL released a final rule raising the salary level in 2016, the rule was blocked by a federal district court and never took effect. The new rule became effective on Jan, 1, 2020. As always, employers should remember that the overtime exemptions depend not only on meeting the salary level test (the employee receives at least $684 per week), but also the salary basis test (the employee is paid a predetermined, fixed salary not subject to reduction because of variations in the quality or quantity of work performed), and the job duties test (the employee primarily performs administrative, executive, or professional duties as defined by FLSA regulations).

Employers seeking further information about the new rule may consult a “Highlights of the Final Rule on Overtime Eligibility” Fact Sheet issued by the DOL, available on its website. https://www.dol.gov/whd/overtime2019/overtime_FAQ.htm

Among other information, the DOL provided the following “By the Numbers” guide to the new rule:

$684 per week – salary requirement – up from the currently enforced level of $455/week (level is equivalent to $35,568 per year)

$107,432 – total HCE compensation threshold – up from the currently enforced level of $100,000 annually

10% – amount of the standard salary level the final rule allows employers to cover with nondiscretionary bonuses and incentive payments that are paid annually or more frequently

1.3 million – estimated number of currently exempt workers who the Department estimates will, without intervening action by their employers, become eligible for overtime

$298.8 million – estimated amount of extra pay workers will receive each year

Be careful about use of applicant criminal convictions: A national retailer has settled a race discrimination case brought by the Equal Employment Opportunity Commission (EEOC) alleging that the employer’s use of criminal convictions to exclude applicants had an adverse discriminatory impact based on race (see: Employer to Pay $6 Million to Settle EEOC Class Race Discrimination Suit). According to the EEOC new release, the consent decree requires that the employer pay $6 million to African American applicants who lost their chance at employment at the company between 2004 and 2019. If the company chooses to use a criminal background check during the term of the decree, the retailer “must hire a criminology consultant to develop a new criminal background check based on several factors including the time since conviction, the number of offenses, the nature and gravity of the offense(s), and the risk of recidivism.” Once the consultant provides a recommendation, the employer cannot use any other criminal background check for its hiring process. The retailer also must update its reconsideration process – which operates when a rejected applicant asks the company to reconsider its decision despite the applicant’s criminal convictions. The new reconsideration process must include clear communications to failed applicants that they may provide information to support reconsideration of their exclusion. Finally, the retailer must also provide reports to the EEOC about the implementation of any new criminal history checks and reconsideration processes. Other employers should get legal counsel and review their own background check systems to assess the risks of blanket exclusions short of individualized assessments that a conviction truly will disqualify someone for a job.

Court says indefinite leave inherently unreasonable: The federal appeals court over the states of Alabama, Florida and Georgia has reiterated that the Americans With Disabilities Act (ADA) does not require employers to give indefinite leaves to employees. The case (Monroe v. Florida Department of Corrections– 11th Circuit, Nov. 15, 2019) involved a former correctional officer diagnosed with Post-Traumatic Stress Disorder (PTSD). He sought an indefinite leave of absence from work due to his PTSD, and, shortly thereafter, was fired. He sued for alleged failure to accommodate his disability, but the court ruled summary judgment on the claim was appropriate. The court explained that the doctor’s note indicated that the employee could not work at the time he was fired and the doctor did not give, and could not have given, a date when the employee could return to work. The court ruled “that indefinite leave is not a reasonable accommodation.” The court also emphasized that “because the ADA covers people who can perform their essential job functions in the present or immediate future, requests for indefinite leave so an employee can work ‘at some uncertain point in the future’ are inherently unreasonable.”

Worker showing signs of depression should have been offered FMLA: Another federal appeals court has ruled that an employer should have offered leave under the Family and Medical Leave Act (FMLA) to a worker who was showing various signs of depression at work and eventually quit and sought treatment for it. The employee had showed excellent job performance until just after a promotion, when she showed signs of trouble sleeping, eating and getting out of bed, and lacked energy. She then experienced weight loss, uncontrollable crying, racing thoughts, an inability to concentrate and exhaustion, tardiness, and absence from work. The plaintiff described her symptoms to school officials, often in tears, and said she might leave “for medical reasons.” She eventually resigned, sued and won a jury verdict. On appeal, the court held that although diagnosis occurred after the end of the plaintiff’s employment, evidence showed that the plaintiff suffered depression before she quit, and the employer should have discussed FMLA options with her even though she never expressly mentioned FMLA.

NLRB concludes that employees’ negative reviews on Glassdoor not protected. On Nov. 13, 2019, that National Labor Relations Board (NLRB) issued an Advice Memorandum that concluded that employees’ negative reviews about their law firm employer on Glassdoor and similar websites was not protected concerted activity under Section 7 of the National Labor Relations Act (NLRA). The law firm employer had its attorney employees sign a non-disparagement agreement at the commencement of their employment that included the following covenant: “Employee will not in any way criticize, ridicule, disparage, libel, or slander Law Firm.” Several employees of the law firm, who had all apparently signed this non-disparagement agreement, went on to Glassdoor, Indeed, and other similar websites to post anonymous negative reviews. The reviews included comments like these:

“I highly recommend staying away from this firm. There is a very high attorney and paralegal turnover rate due to micromanagement and demanding environment.”

“Stay away from this firm they are horrible to work for.”

“Think long and hard before accepting or even applying. Management cares about one thing, are you billing? That’s it nothing else! They micromanage and drain their clients.”

The employer was somehow able to identify two of its employees who had posted the anonymous negative reviews and filed a lawsuit against them alleging breach of contract. The employees filed an NLRB claim alleging that the filing of a lawsuit against them was an unlawful retaliatory act, in violation of their right to engage in NLRA Section 7 “concerted activity” to improve working conditions.

The NLRB found that the anonymous employee reviews were not protected Section 7 concerted activity. To constitute protected concerted activity, the NLRB explained that conduct “must be both ‘concerted’ and for mutual aid or protection.” The NLRB found that the online posts were not “concerted” because there was “no evidence of any group discussions or plans amongst employees to post online negative reviews . . . Nor do the posts call for group action . . . In these circumstances, [the NLRB concluded] that the posts are more akin to individual gripes and therefore not concerted.” Because the online complaints did not constitute protected concerted activity, the employer’s decision to file a lawsuit could not be deemed unlawful retaliation.

However, the NLRB also found that the law firm’s non-disparagement agreement that required employees not “criticize, ridicule, [or] disparage” was an unlawful restriction of core Section 7 activity and the NLRB apparently intends to commence an enforcement action against the employer for that reason.

Beware of the phrase “OK, Boomer.” On Nov. 5, 2019, 25-year-old New Zealand MP Chloe Swarbrick gave an impassioned speech about climate change to the New Zealand Parliament. An older member of parliament heckled Swarbrick and she responded, dismissively, “OK, boomer.” The moment went viral on YouTube and other social media platforms. The readers of these updates have been concerned that Millennial and Generation Z workers might direct the “OK, boomer” phrase to older workers and lead to claims of age-based harassment and mistreatment. SHRM agrees and, on Nov. 20, 2019, published a helpful article entitled “Beware of Workplace Ageism Claims Stemming from ‘OK, Boomer.’” We recommend the article to you, available here: https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/ok-boomer-age-discrimination.aspx.

Eighth Circuit issues ADA decision that provides supervisor training opportunity. On Oct. 3, 2019, the federal Eighth Circuit Court of Appeals issued a helpful decision underscoring the need to train supervisors about employer obligations to participate in an “interactive process” to accommodate disabilities under the Americans with Disabilities Act (ADA). The employee in this case worked for Dollar General as a sales associate and had disclosed to her supervisor that she suffers from anxiety, migraines, and depression. The employee asked her supervisor multiple times for a leave of absence so that she could deal with her worsening medical condition. In response, the supervisor told the employee that she was not sure a leave of absence was possible and directed the employee to “read the employee handbook.” The employee later quit her job and filed a lawsuit against the company, alleging that it had failed to accommodate her under the ADA. In response to the lawsuit, Dollar General argued that the employee had not done enough to trigger the interactive process under the ADA. The Eighth Circuit disagreed and held that the employee had a viable failure to accommodate claim that should proceed to a jury trial. The court explained that no “magic words” are required to trigger the ADA’s interactive process requirements. “To be sure, [the employee] never used the word accommodation . . . but our analysis ‘is not limited to the precise words spoken by the employee at the time of the request.’… Here, [the supervisor knew that the employee] suffered from various medical conditions, that those conditions were worsening and had required regular doctor visits, and that she had repeatedly inquired about a leave of absence to deal with them.” On these facts, the Court concluded that “Dollar General had an obligation to ‘take some initiative’ and identify a reasonable accommodation.’” Garrison v. Dolgencorp, LLC, 939 F.3d 937, 941-42 (8th Cir. 2019) (emphasis added).

Managers and supervisors should be trained that no “magic words” are required to initiate the ADA’s interactive accommodation process. Employees seeking accommodations do not need to use the word “accommodation” or refer to the “ADA.” Instead, managers and supervisors need to know that when an employee has put them on notice about some type of physical or mental impairment and suggested that they may need some help from their employer, they may have an obligation under the ADA to “take some initiative.” We suggest that such initiative begin with immediately alerting HR about the issue.

 Does federal law prohibit sexual orientation bias? Sometime this year or next, the United States Supreme Court will decide whether or not federal law currently prohibits job bias based on sexual orientation. Federal law bans workplace sex discrimination, and so the question is whether “sex” includes “sexual orientation.” Some federal courts have answered this question “yes” but others have said “no.” About half of the states have statutes expressly outlawing discrimination based on sexual orientation. During recent oral arguments, the Supreme Court justices seemed divided. Some comments from Justice Neil Gorsuch have given hope to those who favor an expanded definition of the word “sex,” but it is very difficult to predict case outcomes from questions posed at oral argument. Stay tuned for developments!

The problems of automated hiring: At least one national financial services company now is using an algorithm to “interview” candidates, i.e. to screen candidates for success based on sets of key words used in resumes. A recent New York Times commentator criticized this process: “The problem is that automated hiring can create a closed-loop system. Advertisements created by algorithms encourage certain people to send in their resumes. After the resumes have undergone automated culling, a lucky few are hired and then subjected to automated evaluation, the results of which are looped back to establish criteria for future job advertisements and selections. This system operates with no transparency or accountability built in to check that the criteria are fair to all job applicants.” Lawsuits have been filed and investigations launched. Consult with legal counsel before you migrate to this use of technology. (See: Beware of Automated Hiring).

Large settlement in disability bias case: Speaking of problems in employment-related technology, the United States Equal Employment Opportunity Commission (EEOC) recently announced that a national telecommunications and entertainment company has agreed to pay $1.25 million to settle a disability discrimination case. The employer allegedly was failing to accommodate, and was screening out, disabled applicants via an online application portal. As part of the settlement, the employer also has agreed to hire consultants to verify that application questions actually are job-related.

 

 

 


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