FMJ’s Year-End Employment Law Update

December 2016

The following is a recap of significant developments in employment laws in 2016. Please feel free to contact FMJ’s HR and Employment Team for advice or assistance.

Hold on White Collar Wage and Hour Law Changes

Earlier this year, the U.S. Department of Labor passed a final rule to increase the salary threshold from $455/week to $913/week for certain exempt employees, commonly known as “white collar” employees (e.g. bona fide executive, administrative, professional, outside sales, and computer employees). The new rule was scheduled to go into effect on December 1, 2016. However, on November 22, 2016, the United States District Court in Texas entered a nationwide injunction blocking the Department of Labor from implementing and enforcing its final rule. This means that the imposed increase of the salary level threshold is delayed until further notice. As such, employers can delay implementing the salary level increases planned for December 1. However, employers still need to make sure employees are otherwise properly classified as exempt or non-exempt, notwithstanding the salary level threshold. Please read the full article here.

Misclassifications May Be the New DOL Focus

Perhaps in light of the overtime injunction, the DOL is now focusing its efforts on employee/independent contractor classification. The DOL rolled out a new web page on Monday to provide workers with information and resources to determine if they are properly classified as independent contractors. Businesses who use independent contractors should consider conducting an audit to determine if their worker classifications are proper. Misclassification may result in violations beyond wage and hour laws, including, but not limited to, tax code violations and state and local laws.

Minneapolis Paid Sick and Safe Leave May be in Jeopardy; St. Paul and Federal Contractor Sick Leave Unchallenged

2016 brought laws requiring paid sick and safe leave for employees in the cities of Minneapolis and St. Paul, as well as companies with certain federal contracts. Please read the full article here.  To date, the St. Paul and federal contractor sick and safe leaves have not been challenged in court.  However, the Minnesota Chamber of Commerce sued the City of Minneapolis seeking an injunction to halt the Minneapolis ordinance. The Chamber argued, among other things, that the rule is improper, should not apply to companies operating outside of Minneapolis, and is pre-empted by state law regulating sick leave. Judge Mel I. Dickstein has not yet ruled on the Chamber’s request for an injunction but did question the scope of the Minneapolis sick leave requirements. Judge Dickstein ordered the lawyers for the city and the Chamber to finalize their arguments by Christmas about the rule’s effects on companies based outside Minneapolis. An order is expected in early 2017. Minnesota will also likely see an effort to pass a law during the 2017 legislative session addressing local labor ordinances.

Equal Employment Opportunity Commission (EEOC) Issued Guidance on Retaliation

This summer, the EEOC issued an update to its Enforcement Guidance on Retaliation (“Guidance”) for the first time in nearly 20 years, found here. In the past 20 years, the EEOC has seen retaliation charges double and it is now the most frequently alleged basis of discrimination. The Guidance provides the EEOC’s interpretation of the law on retaliation and related issues. Although the Guidance is not formally binding, courts often consider the EEOC’s views when ruling on these types of claims. Employers are encouraged to review the Guidance for direction and consult with FMJ to determine if its policies and practices should be revised accordingly.

New Requirements Under OSHA Rule Effective NOW

The new OSHA rule requiring certain employers to electronically submit injury and illness data, as well as curtailing post-accident drug testing to encourage employees to come forward, is going forward. In late November, a U.S. District Judge allowed the rule to be implemented on December 1, rejecting a challenge from several business groups that they would be irreparably harmed. The rule contains substantial obligations and provides valuable guidance for employers, which are summarized here.

Trade Secrets Protection for Employers Under Federal Law

The Defend Trade Secrets Act of 2016 creates original jurisdiction over civil actions brought in federal district courts for misappropriation of trade secrets, as well as additional penalties and rights for employers and employees. Employers should consider updating their employment agreements in order to qualify for additional protections and punitive damages. Please read more here to learn what you need to do to ensure you receive the full protection of this new statute.