top 5 labor and employment law trends for 2017
TRANSCRIPT
3AgendaIntroduction
Wage & Hour/Overtime Regulations
New Form I-9 Ban the Box ADA & FMLA
Wage & Hour / Overtime
Regulations
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Before Dec. 1, 2016Wage & Hour / Overtime Rules
3 Separate Tests for Part 541 EAP Exemptions
● Salary Level/Amount Test
○ Exempt employee must be paid a minimum salary amount of $455 per week (or its equivalent if paid bi-weekly, semi-monthly, etc.)
● Salary Basis Test
○ Exempt employee must be paid a guaranteed salary not subject to reduction due to quality or quantity of work performed
● Primary Duties Test
○ Exempt employee must perform certain job duties that meet principal duties for EAP exemptions
Highly Compensated Employee Exemption (HCE)
● Highly Compensated Employee Exemption (HCE)
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Federal Government Announces ChangesWage & Hour / Overtime Rules
● May 23, 2016 – U.S. DOL/WHD published Part 541 final rule
● FLSA Part 541 key provisions amending executive, administrative and professional (EAP) exemptions from overtime and minimum wage
○ “Salary level” test
○ $913 per week/$47,476 per year
■ Up to 10% could be met by non-discretionary bonus, incentive, or commission payments
○ $134,004 per year: highly-compensated individuals
○ Triennial adjustments, effective Jan. 1, 2020
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Law temporarily blockedWage & Hour / Overtime Rules
Overtime law was scheduled to take effect on Dec. 1, 2016Nov. 22, 2016
Judge issues Memorandum Opinion and Order and grants
nationwide preliminary injunction
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Litigation Future, Congress, and AdministrationPossible Twists and Turns
U.S. Dept. of Labor
Not happy; issued condemnation
Trump Administration
Will have to initiate new rulemaking, including notice-and-comment period
Congress
Committees of both Senate and House of Representatives have issued
statement supporting decision
Other Congressional action – new statute; unlikely, at this point
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Litigation Future, Congress, and AdministrationPossible Twists and Turns
● What are the legal options?○ Judge may decide whether to make injunction permanent
and vacate Part 541 new final rule
○ Labor Dept./Justice Dept. may appeal order to the Court of Appeals
○ All legal options are being evaluated
● If preliminary injunction orders are reversed, will the regulations be enforced prospectively or retroactively?
10What has happened with similar overtime cases?
● Home Health Care Exemption○ Supposed to take effect January 1, 2015
■ Changed exemption to provide that home health care workers are entitled to overtime
● Dec. 22, 2014 – enjoined, then vacated the new rule
● Aug. 21, 2015 – reversed the lower court, effective October 13, 2015; affirmed new rule
● Is the rule effective January 1 or October 13, 2015?○ Courts are split
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Option IWhat are your options?
Delay and see how things play out
Risk: If the injunction is lifted or overruled, employees could seek compliance with the regulations retroactively
Get employees to track their time on or after Dec. 1
If injunction is lifted or overruled, employer has accurate measure of hours actually worked
Tracking hours doesn’t mean employer must pay overtime retroactively, between Dec. 1 and overruled date, but the employer may decide to do so
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Option IIWhat are your options?
Go ahead and make the called-for changes
No legal downside, but may be unnecessary
Very expensive
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Option IIIWhat are your options?
Undo all already-made changes● Understand the retroactivity risk● Get employees to track their time
Communicate changes● Give employees advanced notice● Ensure you’re compliant w/ applicable state and legal
notice requirements
Undoing changes can be messy, especially if they have to be redone later
Most employers are not making changes to salary increases … yet
● Communicate with employees about injunction and potential for further future changes
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Wage & Hour / Overtime RegulationsKey Takeaways
Evaluate whether to hold off on implementing the proposed new salary level
If your company decides to hold off, track hours for employees whose salary is between $455/week [old salary level] and $913/week [proposed salary level]
New Form I-9
Poll Question #1How do you currently complete the Form I-9 for new hires?
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Nov. 14, 2016 USCIS publishes new Form I-9
Until Jan. 21, 2017
Employers may continue to use current version (dated 03/08/2013 N)
Jan. 22, 2017 Employers must use new form (dated 11/14/2016 N)
Timing & Compliance New Form I-9
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Smart FeaturesWhat’s New?
Smart Form now available on USCIS Website● Drop-down menus
● Hover text
● Real-time error notifications
● Calendars for filling in dates
New changes increase compliance● Alerts user that required field was left blank
● Automatically marks fields that do not apply to an employee with “N/A”
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Content-Based ChangesWhat’s New?
Section 1
New Form allows for multiple preparers and/or translators to
participate in completion of form
2
If employee provides A-Number or USCIS number, employee must
indicate whether number provided is A-Number or USCIS Number
3
USCIS replaced “Other Names Used” field with
“Other Last Names Used”
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Content-Based ChangesWhat’s New?
Section 2
New field for “Citizenship/Immigration Status” New field added that allows employers to input
additional information that they previously notated in margins of “old” Form I-9
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Smart form, not electronic I-9What’s New?
Although new Smart Form is completed on USCIS’s Website, Form is not an “Electronic I-9” Employers must continue to print a copy of Form I-9
and proceed with their normal signing, storing, and reverification practices for paper Forms I-9
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New Form I-9Key Takeaways
New Smart Form features
May ease compliance burdens and reduce technical errors
Do not alleviate employer’s responsibility to review proper documentation from employee and abide by anti-discrimination provisions
Ban the Box
Poll Question #2How do you currently run background checks on candidates?
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25Criminal Background Inquiries or ChecksState Restrictions
After selection
Illinois (selection and notification)if no interview, after conditional offer
Minnesotaif no interview, after conditional offer
Connecticut cannot inquire on initial employment applicationeffective January 1, 2017
Vermontor once applicant has been otherwise deemed qualified for the positionEffective July 1, 2017
During or after first interview
Rhode Island
Massachusetts
After first interview
Oregonif no interview, after conditional offer
New Jersey
After conditional offer
Hawaii
UtahUtah prohibits employers from procuring SSN , DOB and DL # before a conditional job offer, unless requested of all applicants – this may restrict the timing of when a background check can be conducted
26Criminal Background Inquiries or ChecksLocal Restrictions
After selection
Chicago, IL & Cook County, IL (selection and notification)if no interview, after conditional offer
Seattle, WAafter screening to determine whether candidate is qualified
During or after first interview
Buffalo, NYif no interview, must notify applicant if BC will be conducted before employment
After first interview
Montgomery County, MD
Prince George’s County, MD
Rochester, NYif no interview, after conditional offer and notice of BC
San Francisco, CAinterview must be live
After conditional offer
Austin, TX
Baltimore, MDif no interview, after employment
Columbia, MO
District of Columbia
New York City, NY
Philadelphia, PA
Portland, OR
Los Angeles, CAeffective date TBD
27Key TakeawaysBan the box
Review and comply with applicable Ban the Box requirement(s)
ADA & FMLA
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Rules created to...
Goals of FMLADiscourage “risk-weighers”
Discourage “risk-weighers” Catch cheaters and weed them out of the workforce
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30Goals of FMLADiscourage “risk-weighers”
Rules created to...
Create procedures designed to make clear “risk weighers” will be caught
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Interrogate
3
Crack down on abuse
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31Goals of FMLADiscourage “risk-weighers”
Require advanced notice when taking leave
● Strengthen call-out policy
● Discipline for failure to follow
● Push for better notice
● Count absences if late notice received
● Alert Leave Management Team of patterns
Ensure information is hyper-accurate about what life looks when on leave
● Update job descriptions to get more information
● Push back on certifications to make sure you are getting what you are entitled to receive
● Engage in the interactive process (ADA)
● Utilize interrogation tactics
32Call-Out PoliciesADA & FMLA
WHO
Employee should call
WHAT
Reason for absence and
expected length of absence
WHEN
As soon as practical and
possible
WHERE
Where must the employee report?
HOW
Verbal notice
33NEW: Call-Out ConsiderationsADA & FMLA
Employer obligations under FMLA
● Communicate with employee
● Send information
Consider adding requirements for the employee to advise:
● Where he/she can be reached
● Where he/she can be reached if phone/address changes
34Interrogation on need for leaveADA & FMLA
Are you sure you need to take this leave? ● For what?● Is this already approved?
What functions can you not perform?
How are you going to get yourself home if you are incapacitated?
Is it medically necessary that you take the leave?
Is there any way you would be able to continue working?
If you can drive, how can you not work?
35ADA: How to reasonably accommodateADA & FMLA
Do do not have to—and shouldn’t—use terms “disability,” “reasonable accommodation,” or “interactive process” in discussions with the employee
Review current job description and any available physical job analysis for other positions considered
Receive input from employee about his/her limitations
Identify potential accommodations and assess how effective each would be, including discussions with employee and with internal HR/Legal
Review medical documentation concerning employee’s condition and work restrictions, when appropriate
If possible, identify essential and nonessential functions of job duties and job purpose
Engage in good faith, interactive process with employee
Making facilities accessible and useable Restructuring jobs Creating part-time
or modified work schedulesReassigning to
vacant positions
Acquiring or modifying equipment or devices
Adjusting or modifying examinations, training
materials or policies
Providing qualified readers or interpreters Providing leave
36Reasonable accommodations - examplesADA & FMLA
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When accommodation would cause undue hardship
When an employer is excused from duty to accommodate ADA & FMLA
When accommodation constitutes a direct threat to the health and safety of
co-workers or to the employee
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An action requiring significant difficulty or expense...
Undue hardshipADA & FMLA
Nature and cost of accommodation needed
Overall financial resources of facility or facilities involved
Number of persons employed at facility
Effect on expenses and resources, or impact
otherwise of such accommodation
Overall financial resources of employer
Overall size of employer’s business with respect to
number of employees
Number, type and location of facilities
Type of operation or operations of employer,
including workforce composition, structure
and functions
Geographic separateness, administrative or fiscal
relationship of facility or facilities to employer
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The Policy● Revise LOA policies to include accommodative leave
● Select a period for a neutral absence control policy that takes accommodative leave into account
Tips for administering leave as an accommodationEnsuring ADA Compliance, Shortening Leave Periods and Reducing Abuse
Implementation● Grant leave extensions in shorter increments and require
new documentation showing leave is on track to be definite
● Document indefinite nature of leave in communications with employee and/or physician
● Require physician to estimate return date with “reasonable medical certainty”
● Require physician to represent that the definite leave will allow the employee to perform essential job functions
Q&AStephen Woods
Shareholder, Ogletree Deakins
HRCI Activity ID: 300644Recertification Credit Hours Awarded: 1Specified Credit Hours: HR (General)
SHRM Activity ID: 16-WU75VProfessional Development Credits (PDCs): 1
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