The DOL Will Appeal Injunction Suspending Regulations Raising the White Collar Salary Minimums

As we continue to follow the progress of the injunction suspending the Department of Labor’s regulations raising the salary minimums for the ‘white collar exemption’, yesterday the DOL informed a Texas federal court that it will appeal that injunction.

It is a strange coincidence that the DOL announcement came on the same day – December 1 – that the new regulations would have gone into effect.

Judge Mazzant, the Texas judge who issued the injunction, had found that the states were likely to succeed in their challenge of the regulations and would be irreparably harmed if the rule went into effect.  The judge concluded that the DOL did not have the authority to set these salary minimums at all, stating in part:

“Congress defined the [white-collar] exemption with regard to duties, which does not include a minimum salary level.”  He concluded, “With the final rule, the department exceeds its delegated authority and ignores Congress’s intent by raising the minimum salary level such that it supplants the duties test.”

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Are the DOL Regulations Dead, or Just on Life Support?

As you finish your Thanksgiving preparations the last thing you needed was a major legal development in the area of Employment law – but we had one yesterday.

On November 22, Judge Amos Mazzant, sitting in the Eastern District of Texas, issued an order enjoining implementation and enforcement of the US DOL’s new overtime exemption rules, that were set to go into effect on December 1, 2016 ( and yes – that is next week). The order was the result of a lawsuit, State of Nevada, et al v. United States Department of Labor, et al, filed by the attorneys general of 22 states, joined by various business groups, who argued that the DOL had acted unlawfully in implementing these regulations, and that there would be irreparable harm if they were allowed to go into effect.

For a quick refresher, the DOL’s new overtime rules raised the “salary threshold” an employee must have to be exempt from federal law’s overtime requirements from $455/week to $913/week (or $47,476 per year). According to the DOL’s estimates, this would make an additional 4.2 million workers eligible for overtime. This is the rule that the Texas judge has now blocked.

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In Order to Avoid Liability, Employers Need to Reevaluate Employee Cell Phone Usage Policies

Employers have long understood that what their employees do on company time is directly linked to the company’s own potential liabilities. When employees using mobile electronic devices cause harm, their carelessness isn’t only a problem for them—on company time, it can become a major problem for employers, as courts across the country have made clear in the past few years. Many employers are now reevaluating their cell phone usage policies for precisely this reason.

When a driver is using a cell phone at the time of an accident and the accident happens while the driver is on company business, the phone call is a business one, or the cell phone was provided by the company, companies have been sued along with the driver/employee, under a theory of “vicarious liability” or respondeat superior for the actions of its employee.  Under these doctrines, an employer may be responsible for the harm caused by its employee if that employee was acting within the course and scope of his or her employment at the time the accident occurred.

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Whistleblowing as a Private Right of Action in New York?

The venerable New York Whistleblower Protection Act has long allowed employees to report misconduct by their employer, at which point the public interest could be vindicated by the state Attorney General. But does an employee have a right to bring a personal claim under New York’s whistleblower law against alleged wrongdoers? The answer now appears to be “yes.”

This past Friday, Justice Loren Bailey-Schiffman rejected arguments by defendants in a whistleblower case that the Attorney General and the Board of Directors of a non-profit school have the ability to file suit under the Nonprofit Revitalization Act of 2013, which requires employers to enact policies to protect whistleblowers from retaliation. Instead, she ruled the whistleblower herself has a private right of action against the school and its Headmaster.

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AARP Sues EEOC Over Wellness Program Rules

The American Association of Retired Persons (AARP), the nation’s largest consumer interest group for Americans over 50, is suing the Equal Employment Opportunity Commission (EEOC) over its new wellness program rules, which the AARP alleges violates rules protecting the confidentiality of medical information. The new rules were issued in May but do not take effect until 2017.  The AARP is seeking a preliminary injunction to block the new rules.  The case, filed October 24, in Federal District Court in Washington is AARP v. EEOC.

The AARP contends that wellness programs, which many employers offer to encourage healthier lifestyles and prevent disease, violate anti-discrimination laws that protect workers’ confidential medical information.  According to the AARP, the programs invade workers’ privacy as they often involve medical exams and questioning, and leave them vulnerable to employment discrimination based on disability or genetic information.  The AARP specifically opposes wellness programs because older workers are more likely to have the types of less visible conditions (i.e high blood pressure and heart disease) that can become exposed through participation in wellness programs.   The AARP has typically been supportive of the EEOC’s efforts to provide guidance on wellness programs—but now, the AARP is in the unusual position of finding itself at odds with the EEOC.

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NLRB Takeaway: Comply, Even if You Think You Don’t Have To

The General Counsel of the National Labor Relations Board issued a recent Advice Memorandum in Northwestern University, NLRB Case 13-CA-157467, with a strange, but practical, takeaway for employers: even if you don’t think all the obligations National Labor Relations Act apply to you, you can avoid a lot of trouble if you just behave and comply anyway. Smart employers will comply, then, when the costs of compliance aren’t significant compared to the costs of fighting the NLRB.

Northwestern University gained prominence over the past year as it fought the rights of its college football players to unionize. As you might expect, the university argued that college football isn’t employment, that college football players are not employees, and as such, they should not be permitted to unionize. The effect of unionization would have been, well, awkward at best: imagine college athletes insisting that training schedules, and even decisions on how to field a team, are “working conditions” that a university would have to negotiate with them. The NLRB ultimately agreed with the university, at least implicitly: it denied a petition for an NLRB election that had been filed by the players.

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New California Law Prevents Employers from Imposing Non-California Forum Selection or Choice of Law Provisions upon California Employees

As part of our efforts to update employers regarding the newly-enacted statutes that will affect employers in the coming year, this post addresses a bill recently signed into by California Governor Jerry Brown that prohibits employers from requiring most employees who live and work in California to agree to a forum selection or choice of law clause that would designate a forum or substantive law of a jurisdiction outside California.

The bill, designated as Senate Bill 1241, is straightforward on its face adding section 925 to the California Labor Code.  It prohibits any employer from requiring an employee who “primarily resides and works in California” to adjudicate outside of California a claim arising in California, or to deprive California-based employees of “the substantive protection of California law” with respect to such a claim.  “Adjudication” is defined to include litigation and arbitration.  The statute becomes effective on January 1, 2017, with respect to contracts entered into after that date.

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Seventh Circuit Reverses Decision that Title VII Doesn’t Protect Against Anti-Gay Discrimination and Agrees to Re-hear Employment Discrimination Case

The Seventh Circuit reversed and vacated the panel decision holding that Title VII does not protect employees from anti-gay discrimination and will re-hear the case, Hively v. Tech Community College, en banc.  Kimberly Hively claims that her former employer, Ivy Tech Community College, violated Title VII when she was denied full-time employment and promotions and eventually terminated based on her sexual orientation.  We previously reported on this case and its implications for the rapidly-changing legal landscape on LGBT workplace protections.  With today’s decision by the Seventh Circuit to rehear the case en banc, the status of sexual orientation discrimination under Title VII remains uncertain.  We will continue to monitor this case for its impact on employers going forward.


Kelley Drye Launches Occupational Health & Safety Blog

We are excited to announce that Kelley Drye’s Occupational Safety & Health practice group has launched the Not Safe For Work blog. We think our readers will benefit from the focused insight and expert analysis on the latest occupational safety and health issues from Kelley Drye’s occupational health and safety attorneys. You can follow Not Safe For Work for analysis, summaries, and discussion of the latest occupational safety and health developments, including action by OSHA, the Chemical Safety Board, the Mine Safety & Health Administration, the Environmental Protection Agency, and others.

Occupational health and safety law arises largely from the 1970 Occupational Health and Safety Act and is enforced by the Occupational Health and Safety Administration of the U.S. Department of Labor (OSHA). In addition OSHA enforces the law, administers reporting requirements, and handles substantial rulemaking responsibilities that impact a very broad range of employers and industries. It also addresses reducing risks from toxic chemical exposure, electrical hazards, fall hazards, noise levels, mechanical dangers, extreme temperatures, unsanitary conditions and other sources. OSHA compliance impacts virtually every employer in the U.S. Check out the Not Safe For Work blog to stay up to date.

EEOC Continues its “Fight” Against Mandatory Flu Vaccines

Following up on a post from last week on the issue of mandatory flu vaccine policies, the EEOC seems to be on a march to challenge any employer – particularly hospitals – that denies an employee a requested exemption from a mandatory flu shot for religious reasons.

Last week the EEOC sued Saint Vincent Health Center, a Pennsylvania hospital, claiming that the hospital had unlawfully fired six employees who were denied an exemption from the hospital’s mandatory flu vaccine policy.  According to the complaint, the hospital allotted 14 other employees exemptions from the vaccine based on health reasons, but denied the requests of the employees for religious-based exemptions because they “did not provide proof of religious doctrine.” The health center says they have a vaccination policy that allows employees to apply for exemptions to receiving the vaccine based on health concerns or religious beliefs.

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