New FLSA regulations, a summer vacation tip for employers, and more in this issue of Labor & Employment Law Update

5 min

Vol. 1, Issue 2 | 2016

This issue of Venable's Labor & Employment Law Update provides guidance to employers on revised Fair Labor Standards Act (FLSA) "white collar" exemptions, workplace restroom policies for transgender employees, and new OSHA requirements on recording keeping and reporting. We also provide an important summer holiday tip for employers on paying out vacation time, updates on the DOL Persuader Rule, and a reminder for California employers about the effect of the Private Attorney General Act (PAGA). Check out our recent hot topics and highlights from previous publications.

Contributing Editor: Michael Volpe

Featured Authors: Douglas Mishkin, Gregory Ossi, Laura Reathaford, Ronald Taylor, Jeffrey Tenenbaum, Brian Turoff, Michael Volpe, Robin Burroughs, Allison Gotfried, David Katz, Nicholas Reiter, and Benjamin Stockman.

New FLSA Regulations

Last month, the U.S. Department of Labor (DOL) released its long-awaited revisions to the FLSA executive, administrative, and professional exemptions, commonly referred to as the "white collar" exemptions. In so doing, the DOL revised the salary requirements for treating an employee as exempt under the FLSA's "highly compensated" exemption. Though the new Regulations retreat slightly from the DOL's June 2015 proposals, they will still have a profound impact on employers' ability to treat certain employees as exempt from receiving overtime compensation.

These changes may effectively convert somewhere between 4 and 5 million employees from exempt to non-exempt status, which is particularly relevant with regard to "compensable time." The potential reclassification will require a review of an employer's payment practices for non-exempt employees. What counts as compensable time is a complicated and nuanced issue.

Transgender Employees and Restrooms in the Workplace

Many employers may need to take a hard look at their workplace restroom policies for transgender employees. Earlier this year, the EEOC obtained a $115,000 settlement payment on behalf of a transgender employee who had been barred from using an employer's women's restroom.

Employers may also face non-monetary consequences. The settlement agreement for the case noted above included a long list of non-monetary obligations for the employer, including regular transgender employee rights training for its workforce, the implementation of new bathroom access policies, posting new bathroom signs at worksites, and annual reporting requirements regarding internal complaints of discrimination against or harassment of transgender employees. Continue reading.

OSHA Corner

On May 12, 2016, OSHA issued highly anticipated revisions to its rule on recordkeeping and reporting occupational injuries and illnesses. The revisions transform the existing rule on recordkeeping in several ways. Read more.

Speaking of OSHA, Venable made a prominent addition to its labor and employment law bench, especially with regard to workplace safety compliance. On June 8, 2016, Venable announced that Nicole A. Smith, an experienced labor and employment attorney who often represents clients in major OSHA matters, joined the firm as a partner in Washington, DC.

DOL's New Persuader Rule: What Does It Mean for Employers?

In April 2016, the DOL published a new rule which dramatically changes reporting requirements under the federal Labor Management Reporting and Disclosures Act (LMRDA). The rule was set to take effect on July 1, but was enjoined by the U.S. District Court for the Northern District of Texas on Monday, June 27. The DOL is enjoined from implementing the rule on a national basis pending a ruling from a higher court, but employers should still be aware of the elements of the new rule as it relates to indirectly persuading employees on union organizing activity. What do employers need to know?

Summer Vacation Tip for Employers

With the arrival of summer, vacation time is on the mind of many employees. It should also be in the thoughts of savvy employers, who must be aware of often state-specific obligations for paying out employees for their accrued but unused vacation time at the conclusion of employment. For example, in states like Massachusetts, employers who afford vacation time to their employees must pay for earned but unused vacation time upon the termination of employment. In New York, on the other hand, employers with explicit policies making clear that they will not pay employees for unused vacation time upon the conclusion of employment need not pay for such time. In contrast, Connecticut employers lacking explicit policies are not automatically required to pay their employees for such time. Employers must be mindful of these distinctions and nuances so as to avoid inadvertent violations.

Do You Have Employees in California?

Most employers in California are subject to the California Labor Code, its regulations, and the Private Attorney General Act. Under PAGA, individual employees step into the shoes of the California Labor Commissioner to enforce Labor Code violations and recover civil penalties. The penalties range from $50 per employee per pay period to $1,000 per employee per pay period, making the exposure on these claims as high as eight figures in any one case, depending on how many employees (and violations) are at issue.

PAGA partner Laura Reathaford has authored several articles on this topic, most recently in the Westlaw Journal – Employment, and she was featured on the cover of Los Angeles Lawyer magazine.

Venable's Labor and Employment Law group practices throughout the United States and internationally, representing clients and handling sensitive issues on a day-to-day basis. We routinely litigate matters in all administrative agencies, in state and federal trial courts, and in appellate courts across the country. Venable's full-service team has vast experience in defending wage-hour claims including class action matters on a nationwide or local basis, in labor relations matters and litigation proceedings before the NLRB and federal courts, and in providing advice on employee mobility issues and litigation of restrictive covenant claims in any forum.

Additional Articles and Publications

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We publish two L&E blogs: Class Action Perspectives for Employers and Trade Secrets & Transitions.

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